WWF UK Ltd v Scottish Natural Heritage
| Jurisdiction | Scotland |
| Judgment Date | 27 October 1998 |
| Date | 27 October 1998 |
| Court | Court of Session (Outer House) |
Outer House of the Court of Session
Before Lord Nimmo Smith
Scots law - environmental protection - European sites - identifying and drawing the boundaries of
In the linked processes of identifying and drawing the boundaries of sites to be afforded special environmental protection under the EC Birds and Habitats Directives, national authorities had a discretion as to where the boundaries should run, albeit the basis for their judgments had to be scientific.
In respect of those habitats or species the presence of which qualified the site for protection, the national authorities were not obliged to include within the site all such habitats or such species' territories that were contiguous or geographically linked.
Objectors to consent for a development who contended that, if the boundaries of such a site were properly drawn they would include the development site, could be barred by delay from seeking judicial review where, in making representations to the planning authority during many months of consideration of the planning application, the objectors had omitted to raise the question of whether the boundaries should properly include the development site.
In permitting development that had a potential for adverse effects upon such a site, a planning authority was not obliged to ascertain that the absence of adverse effects was guaranteed absolutely, and could lawfully grant consent on conditions, such as requiring that the possibility of such effects be monitored, and making provision for the imposition of additional controls if the possibility of adverse effects were to materialise during the operation of a development.
When consulting the public upon the steps to be taken to prevent adverse environmental effects, a planning authority was not in principle obliged to make available to the public the final versions of the proposed measures, since the act of consultation contemplated possible revision, and repeated re-consultation would render the process excessively protracted.
Lord Nimmo Smith, sitting in the Outer House of the Court of Session, so held, dismissing a petition for judicial review brought by WWF-UK Ltd and the Royal Society for the Protection of Birds against decisions of the Secretary of State for Scotland, Scottish Natural Heritage and Highland Council, in which the Cairngorm Chairlift Company Ltd and Highlands and Islands Enterprise were called as interested parties.
Sir Crispin Agnew of Lochnaw, QC, for the petitioners; Mr Neil Davidson, QC and Miss Lesley Shand for the secretary of state; Mr Patrick Hodge, QC and Mr Michael Howlin for Scottish Natural Heritage; Mr Michael Upton for Highland Council; Mr Roy Martin, QC and Mr Laurence Murphy for Cairngorm Chairlift Company and Highlands and Islands Enterprise.
LORD NIMMO SMITH said that the Conservation (Natural Habitats, etc) Regulations (SI 1994 No 2716) implemented the Birds Directive 79/409/EEC (OJ 1979 No L 103/1) and the Habitats Directive 92/43/EEC (OJ 1992 No L206/7) by providing for the designation of parts of the country as special protection areas ("SPAs") and special areas of conservation ("SACs"), which were jointly referred to as "European sites".
The petitioners sought to challenge decisions of Scottish Natural Heritage and the Secretary of State for Scotland to propose boundaries for an SPA and an SAC in the Cairngorm mountains that omitted certain areas on the northern slopes of Cairn Gorm itself; and Highland Council's grant of planning permission for, and entry into a planning agreement concerning the construction of a funicular railway on those slopes.
In 1990 Scottish Heritage's predecessors had proposed that a large part of the Cairngorms, including the summit of Cairn Gorm itself, should be an SPA.
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