Fisher, R (on the application of) v English Nature

The Honourable Patrick Fisher and Trustees of the Hon PV Fisher’s 1986 Children’s Settlement (the Appellants) are among the principal owners of some 13,335.70 hectares of intensely farmed arable land lying across the border between Norfolk and Suffolk and known collectively as the Breckland Farmland.

By letter dated 15 November 2000, the Respondent to this appeal, English Nature (formerly the Nature Conservancy Council), acting pursuant to section 28 (1) of the Wildlife and Countryside Act 1981 (the 1981 Act), notified the Appellants (amongst others) that it was of the opinion that the Breckland Farmland was a site of Special Scientific Interest (SSSI). Following a meeting of its Council on 11 July 2001, and acting pursuant to section 28(5) of the 1981 Act, English Nature on 3 August 2001 gave notice to the appellants (amongst others) by letter confirming the notification. The reason for both the notification and the confirmation of the Breckland Farmland as an SSSI was the site’s “internationally important population of stone-curlew”.

The Appellants challenged the lawfulness of the decision to confirm the notification (hereinafter called “the Decision”) by means of proceedings for Judicial Review instituted in the Administrative Court on 24 September 2001 and heard by Lightman J over three days on 18-20 June 2003. In a reserved judgment handed down on 4 July 2003, the judge rejected the challenge, dismissed the application and refused permission to appeal. His decision ([2003] EWHC 1599 (Admin)) is now reported as R (Fisher and others) v English Nature [2004] 1 WLR 503.

The Appellants now renew their challenge to the Decision in this court. Permission to do so was granted on the papers by Carnwath LJ on 26 September 2003 on three of the five grounds raised in the Appellant’s notice, which I set out in paragraph 107 below.

Despite the apparent simplicity of the application of section 28 of the 1981 Act to the facts of this case, and the judge’s tautly muscular analysis of the issues, the arguments in this court ranged widely and developed a considerable degree of sophistication. I have therefore come to the conclusion that I need to set out the background to the case and the arguments arising from it in more detail than might normally be expected in an appeal involving the manner in which a specialist statutory body has exercised a clearly identified specialist statutory function. I therefore propose to address the issues raised by the appeal under separate headings. For ease of reference, I provide an index at this point, which charts the path of my attempt to identify and analyse the issues, from which the discerning reader can select whatever information he or she requires.

As this case is about the stone-curlew, it is right that it should feature at the outset of the judgment. In this regard I can do no better than borrow the summary made by the judge in paragraphs six to eight of his judgment: -

“6.

Stone-curlews are a migratory species nesting from March onwards in any year and migrating to southern Spain or North Africa from October. The birds nest from March each year in cultivated land which has plenty of bare ground and fairly short vegetation, as they prefer an open relatively unobstructed vista (so as to be aware of predators) and stony ground so that their eggs are camouflaged. The location of the nests of the stone-curlew may vary from year to year and nesting attempts at different locations in one year are commonplace. Field work has found that stone-curlew may travel up to 3 km from the nest site to forage. Stone-curlews are very sensitive to recreational disturbance and benefit from lack of recreational access on agricultural land. They are not usually affected by mechanised agricultural operations.

7.

The stone-curlew is a species identified as being of European significance and as requiring special measures of conservation in the Birds Directive. It is a species that is protected under Part 1 of the 1981 Act by special penalties at all times. It is also a priority species under the UK Biodiversity Action Plan.

8.

The stone-curlew is an extremely scarce bird species nationally. Numbers have fallen by 85% since 1960. The British population was estimated to be 215 pairs in 1998 and 234 pairs in 1999. It is one of the rarest breeding bird species in Great Britain.”

I take this part of my judgment from the helpful and authoritative explanation contained in the witness statement filed in the proceedings on 13 February 2003 by the Acting Chief Executive of English Nature, Dr Andrew Brown. Dr. Brown explains that whilst there has been a specialist nature conservation body in England since 1949, it was the Nature Conservancy Council Act 1973 which created the Nature Conservancy Council as an independent body to oversee nature conservation. Its functions were concerned with nature reserves, the provision of advice to the Secretary of State on the development and implementation of policies relating to nature conservation, the provision of advice and the dissemination of knowledge about nature conservation and the commissioning and support of research relevant to those matters.

The Nature Conservancy Council for England was dissolved on 21 December 1991 by Order of the Secretary of State and by virtue of Section 73 of the Countryside and Rights of Way Act 2000, the Nature Conservancy Council of England is now known instead as English Nature.

English Nature is a statutory body corporate, and is not to be regarded as a servant or agent of the Crown. The Council of English Nature is required to comprise not less than ten nor more than fourteen members appointed by the Secretary of State. In practice, Dr Brown says, they are selected for their particular experience, knowledge and expertise in various areas relevant to nature conservation. Dr Brown produces a list of the current members and points out that they have considerable expertise and experience in a range of relevant fields, including botany, biology, marine biology and geology. They also bring to the Council of English Nature their experience of wider countryside and environmental issues including agriculture, town and country planning, and environmental management. The Council meets at least quarterly at different locations. Since 16 May 2001, its meetings have been held in public.

English Nature have some nine hundred members of staff. The vast majority of officers involved in nature conservation work have at least a first degree in a relevant scientific discipline in their field. Some work as conservation officers in one of twenty-two area teams with responsibilities for site designation, site management, assessing the condition of SSSIs and seeking to ensure their appropriate management.

An SSSI is defined by section 52 of the 1981 Act as

“An area of land which has been notified under Section 28(1)(b).”

As the provisions of Section 28 of the 1981 Act are the heart of this appeal, I propose to set out Section 28(1) to (9) in full. For ease of reference, I have inserted the name “English Nature” for the Nature Conservancy Council wherever it appears:

Rather than set out the statutory provisions in extenso, I gratefully adopt the summary made by the judge in paragraph 17 of his judgment: -

As the judge commented, it is apparent that the consequences of notification go far beyond anything that can be achieved by voluntary agreement with affected landowners.

De-notification is governed by Section 28D of the 1981 Act and provides that:

(1)

Where [English Nature] are of the opinion that all or part of a Site of Special Scientific Interest is no longer of special interest by reason of any of the matters mentioned in Section 28(1) they may decide to notify that fact.

The procedure for de-notification is essentially the same mutatis mutandis as the procedure for notification.

Operations which English Nature identify under section 28(4)(b) of the 1981 Act as likely to damage the flora or fauna or the geological or physiographical features of the site are known by the acronym “OLD”s. In the instant case, English Nature identified five OLDs in relation to the stone curlew namely: -

(1)

Killing, injuring, taking or removal of stone curlews, or their eggs and nests. Intentional or reckless disturbance of stone curlews, their eggs or chicks. *

Long-term afforestation of farmland in excess of 5 hectares.

(3)

Extraction of minerals including hard rock, sand and gravel, topsoil and subsoil except for farm use.

(4)

Construction of roads, or the laying, maintenance or removal of pipelines and cables, above or below ground, except for agricultural or forestry purposes.

(5)

Erection of permanent buildings or reservoirs, or the undertaking of engineering work, including drilling, except for agricultural or forestry purposes.

*Accidental disturbance through agricultural and game management, for example, is not regarded as intentional or reckless disturbance ”

No complaint was made before the judge or before us about the OLDs identified by English Nature, and in particular no suggestion was made that English Nature was acting outside its powers in identifying or imposing these particular OLDs in accordance with their statutory duty under Section 28(4)(b).

Article 3 of the European Community Council Directive of 2 April 1979 on the conservation of wild birds (the Birds Directive) requires member states to take “the requisite measures to preserve, maintain or re-establish a sufficient diversity or area of habitat for all the species of naturally occurring wild birds in the wild state in the European Territory of the member states to which the Treaty applies. By Article 3(2): -

“The preservation, maintenance and re-establishment of biotopes and habitats shall include primarily the following measures: -

According to the second edition of the Oxford English Dictionary, a biotope is “the smallest sub-division of a habitat, characterised by a high degree of uniformity in its environmental conditions and in its plant and animal life”.

Article 4 of the Birds Directive provides that the species mentioned in Annex 1 shall be the subject of special conservation measures concerning their habitat in order to ensure their survival and reproduction in their area of distribution. The stone curlew (Burhinus Oedicmemus) is one of the birds identified in annex 1. Article 4(1) continues:-

“Member states shall classify in particular the most suitable territories in number and size as special protection areas for the conservation of these species, taking into account their protection requirements in the geographical sea and land area where this Directive applies”

Article 4(4) of the Bird Directive provides that:-

“In respect of the protection areas referred to in paragraphs 1 and 2 above, Member states shall take appropriate steps to avoid pollution or deterioration of habitat or any disturbances affecting the birds, insofar as these would be significant having regard to the objectives of this Article. Outside these protection areas, Members states shall also strive to avoid pollution or deterioration of habitats.”

Article 18 of the Birds Directive requires member states to bring in to force the laws, regulations and administrative provisions necessary to comply with the Directive within two years of its notification.

The special protection areas referred to in Article 4(1) of the Birds Directive are colloquially known, and will hereinafter be referred to, as SPAs. Where (as in the case of the Breckland Farmland) a proposal has been put forward that the area should be an SPA but it has not yet been so designated, it is called a pSPA.

Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (commonly known as the Habitats Directive) creates areas known as “Special Areas of Conservation” (SACs). In the preamble to the Directive, the sixth recital reads:-

“Whereas, in order to ensure the restoration or maintenance of natural habitats and species or community interest at a favourable conservation status, it is necessary to designate special areas of conservation in order to create a coherent European ecological network according to a specified timetable;”

The preamble continues:-

“Whereas all the areas designated, including those classified now or in the future as special protection areas pursuant to (the Birds Directive) will have to be incorporated into the coherent European ecological network.”

Article 1 of the Habitats Directive defines conservation as -

“a series of measures designed to maintain or restore the natural habitat and the population of species of wild fauna and flora at a favourable status as defined in (e) and (i) of Article 1.”

Article 1(e) defines conservation status of a natural habitat as the –

“the sum of the influences acting on a natural habitat and its typical species that may affect its long term natural distribution, structure and functions as well as the long term survival of its typical species within the territory referred to in Article 2.”

The Habitats Directive defines a SAC as –

“A site of Community importance designated by the Member States through a statutory, administrative and or/ contractual act where the necessary conservation measures are applied for the maintenance or restoration at a favourable conservation status of the natural habitat and or/ the populations of the species for which the site is designated.”

The same Article also defines a site of community importance as –

“a site, which, in the bio-geographical region or regions to which it belongs, contributes significantly to the maintenance or restoration at a favourable conservation status of a natural habitat type in Annex 1.”

Article 3 provides for a creation of a network of special areas of conservation to be known Natura 2000. It goes on:-

“This network, composed of sites hosting the natural habitat types listed in Annex 1….. shall enable the natural habitat types and the species’ habitats concerned to be maintained or, where appropriate, restored at a favourable conservation status in their natural range.

The Natura 2000 network shall include the SPAs classified by the member states pursuant to (the Birds Directive).”

Article 6 of the Habitats Directive makes provision for special areas of conservation (SACs) and the conservation measures which must be applied in relation to them.

These Regulations make provision for the implementation of the Habitats Directive. Regulation 3(2) requires the Secretary of State and “Nature Conservation Bodies” to exercise their functions under the enactments relating to nature conservation so as to secure compliance with the requirements of the Habitats Directive. Those enactments include the relevant provisions of the 1981 Act. The Regulations require the Secretary of State to propose a list of sites eligible for identification as being of community importance. The Regulations make provision for notification to appropriate nature conservation bodies, landowners and relevant authorities. They provide for management agreements.

Regulation 18 provides that any notification in force in relation to a European site under Section 28 of the 1981 Act shall have effect for the purposes of the Regulations, and empowers the appropriate nature conservation body (in this case English Nature) to amend the notification for the purposes of securing compliance with the Habitat Directive. Regulation 22 gives the Secretary of State power to make a still further designation of any land within a European site by making what is called a “Special Nature Conservation Order” specifying operations which appear to the Secretary of State to be likely to destroy or damage the flora, fauna or geological or physio-geographical features by reason of which the land is a European site. Before making such an order, the Secretary of State is required to consult English Nature.

As the judge pointed out, the criteria for the selection of SPAs for birds and SSSIs for birds are similar. Broadly, a site qualifies if it is used regularly by 1% or more of the total British breeding population of the species in question.. In 1999 the Breckland Farmland SSSI itself supported some 102 pairs of stone-curlew (44% of the Great Britain population) and would thus easily qualify on its own as an SPA under the relevant criteria.

In January 2000, English Nature submitted proposals to the Secretary of State for a Breckland SPA, which we understand he is minded to accept, but is awaiting the outcome of this litigation before making a final decision. This proposal is supported by the appellants. It is thus a pSPA. The SSSI falls within the larger Breckland pSPA.

There is, of course, nothing in the legislation (either European or domestic) which prevents an SSSI being an SPA or vice versa. Rather to the contrary, as the judge pointed out, there were close links between the statutory schemes – see regulation 3 of the Habitats Regulations set out at paragraph 32 above. Furthermore, as Dr. Brown explains in his witness statement, in England, the legal framework which in the Government’s view secures protection of SPAs is their designation as SSSIs, supplemented, since 1994 by the Habitats Regulations, which implement the Habitats Directive and provide for the protection of European Sites including areas classified as SPAs pursuant to Article 4(1) of the Birds Directive.

As will become apparent, it is the powers of enforcement contained within an SSSI which feature strongly in this case, coupled with a change of policy by English Nature in 2000 in the identification and notification of SSSIs, to which I now turn.

One of the appellants’ irrationality arguments is that English Nature in reaching their decision in the instant case (a) departed from their previous practice operated between 1994 and 2000 of not granting SSSI status in cases of extensive areas of conventional plantation or to habitats for migratory birds or birds who nested in areas only sporadically; and (b) did so for flawed and tainted reasons, namely pressure from the Secretary of State, whose policy was that every SPA should be underpinned by SSSI status, and the enforcement powers which accompanied an SSSI.

Dr Brown explains the position in his witness statement: -

Dr. Brown exhibits a number of the documents relating to English Nature’s change of policy, notably two relating to the 1994 decision not to confirm the Thames Basin Heath SPA as an SSSI. The first is a note by the Secretariat, and the second, dated 18 October 1994, is a rationale for non-confirmation, identifying the factors which influenced the Council of English Nature at a meeting on 29 June 1994. These explain that, in 1994, English Nature were not convinced, in this particular instance, that notification as a SSSI was the most appropriate mechanism to discharge responsibilities for the particular Annex 1 species concerned (not, it should be said, the stone-curlew).

Dr Brown also produces correspondence between English Nature and the DETR. On 24 January 2000, Dr Brown wrote to Mr. Pritchard of the DETR about three sites, including Breckland and Thames Basin Heath. In the course of that letter, he said: -

(It should be noted, in parenthesis, that English Nature’s subsequent change of stance in relation to part of the Thames Basin Heath SPA, and its decision to notify and confirm SSSI status on that part (known as Bramshill) was the subject of a challenge by way of judicial review heard by Forbes J in April 2002. Forbes J’s decision is reported as R (on the Application of Aggregate Industries UK Ltd) v English Nature [2002] EWHC 908; [2003] Env. L.R. 3 at 83, and will be referred to hereinafter simply as Aggregate). Although the basis of the challenge in Aggregate was different, Lightman J makes a number of references to it, and Forbes J discusses English Nature’s change of policy in some detail. I examine the decision in Aggregate in paragraphs 84 to 93 below).

The General Committee of the Council of English Nature met on 29 February 2000. It had before it a paper entitled Temporary Habitats within SPAs: Consideration for Designation as SSSIs by Peter Clement, International Sites Project. Attached to it was a cover note from Dr. Brown, from which Forbes J cites in Aggregate (see paragraph 90 below). The paper records the conflict between the DETR policy and English Nature’s policy of including only areas of natural or semi-natural habitats within SSSIs. The purpose of the paper was to inform Council of the issues regarding the inclusion of areas of “temporary” habitats within the three proposes SPAs and to seek agreement on how to proceed.

The paper makes the point that understanding of legal obligations under the Birds Directive had increased substantially since 1994, as had knowledge of the ecology of the species and the sites. The paper describes it as axiomatic that land designated as of international importance must also be of national importance. The question was whether or not SSSI was the only mechanism available to underpin international designation and put in place the mechanisms required to secure the appropriate management of the site.

The conclusion which the paper reached was that the three sites should be designated SSSIs in order to support the SPA classification. That was also Dr. Brown’s view, and the Committee agreed.

It is, I think, worth pointing out that Lightman J gave the irrationality argument based on an inappropriate change of policy argument short shrift. He said at paragraph 26 of his judgment:

Another argument advanced before the judge was that English Nature, in confirming the SSSI designation for the Breckland Farmland had departed from the Guidelines for the selections of SSSIs provided by the Joint Nature Conservation Committee. As a consequence, substantial extracts from the Guidelines were contained in our papers.

The judge found that in so far as the Guidelines departed from the 1994 stance on SSSIs they were entitled – indeed bound – to do so, but that he could not in any event detect any material departure by English Nature from the Guidelines. He pointed out that the Guidelines advised care and caution before deciding to notify or confirm largely artificial habitats for the reason of the presence of rare birds; and that croplands should not normally be selected. His view, however, was that this in no way precluded the Decision, and that the evidence revealed that all due care was exercised by English Nature in reaching the Decision.

Having read the Guidelines, I agree with the judge that what matters is the Decision, and the manner in which the Decision came to be taken. It is, however, only fair to English Nature to point out that in my judgment the JNCC Guidelines are plainly the product of much careful thought and research, and that, like the judge, I can detect no departure from them

In the light of the sustained challenge that English Nature took immaterial factors into account when confirming the Breckland Farmland as an SSSI, it is necessary, in my judgment, for this court to examine the decision making process with some care. In his witness statement, Dr Brown describes over many pages the detailed investigations and consultations which were undertaken before the decision to notify was made. It is also noteworthy that, although, for obvious reasons, English Nature were under no obligation to consult prior to notification, there was in fact extensive prior consultation in this instance.

In July 2000 the Council of English Nature considered a paper prepared by the Area Team recognising the novel implications of the designation as an SSSI of arable land subject to annual cropping regimes. The report recognised the success of voluntary measures, and it was also recognised that the continuation of arable cultivation, with small-scale interventions to protect nests would ensure the conservation of the stone-curlew. The report acknowledged that potential resistance to designation might prejudice cooperation, and accordingly the paper proposed that the list of operations likely to damage the features of special interest should be confined as far as possible to enable present and future anticipated farming practices to continue, whilst complying with English Nature’s duty to specify any operation appearing to the Council to be likely to damage the features of interest.

Officers of English Nature then set up a working group to discuss the practical implications of an SSSI designation on arable land subject to annual cropping regimes, and to advise English Nature on its proposals. This group comprised representatives of English Nature, the Country Landowners Association, the National Farmers Union, the Elveden and Goodstone Estates (two of the site landowners) the RSPB and the Farming and Rural Conservation Agency. A well-known local land agent was invited to advise the working group because of his particular understanding of Breckland Farmland landowners’ concerns.

The working group met in September and October 2000 to discuss the list of proposed OLDs, following which a number of amendments were proposed. A pilot wildlife enhancement scheme was proposed and subsequently launched on 14 February 2001. Between September and November 2000 Area Team officers made contact with all the owners and occupiers of the proposed SSSI, explaining the role of the working group and offering to meet with them to discuss the proposed notification and, in particular, the proposed site boundaries.

On 4 October 2000, the Council of English Nature met to consider a report prepared by the Area Team recommending the notification. A copy of that report is in evidence. Amongst the many other documents put in evidence were the minutes of the meeting of the Council on 28 October 2000.

No complaint is made by the Appellants of the manner in which English Nature carried out the notification, nor are the OLDs attacked in any way. Dr Brown records that during the statutory period of consultation lasting until March 2001 some eighty-four landowners and occupiers were notified and, in all, fourteen objections were made, involving some seventeen separate owners or occupiers. There was, moreover, substantial communication between English Nature, the first Appellant, his legal advisers, and the Second Appellant. Dr Brown produces the correspondence.

In May 2001 Council members attending a meeting of English Nature in Thetford took the opportunity to visit the Breckland Farmlands SSSI. Council members were escorted round one of the largest land units in the SSSI, the Elveden Estate and met Lord Iveagh, one of the objectors.

In the light of the objections and representations received, Area Team officers of English Nature prepared a report for consideration by the Council. That report recommended notification be confirmed with a small modification. Dr Brown produces the report.

As this is the meeting which resulted in the Decision, I propose to examine it in some detail. The Council of English Nature met on 11 July 2001 to consider the officers’ report. Of the eighty-four owners and occupiers notified, the Council was requested to consider fourteen objections. A chartered surveyor, Mr Michael Falcon represented a group of landowners, including the second appellant. Mr Falcon made oral representations and other objectors, including the first appellant, addressed the meeting.

We have the benefit not only of the minutes of the meeting but of a transcript of that part of it which relates to the Breckland Farmland. Four objectors had requested to speak. They were (1) Mr Falcon; (2) the first Appellant; (3) Mr Barry Hawkins for the Edward Moundeford Charity and others and (4) Mr Jim Rudderham from the Elveden Estate. It is, I think, instructive to see what was said by the objectors.

Mr Falcon, a rural chartered surveyor took the point that in his opinion it was not legally necessary to designate, and that there would be no benefit in doing so. He argued that the existence of SPA did not in itself obligate the UK Government to create an SSSI. He argued that while it may have been the policy of the Department for the Environment Transport and the Regions (DETR) in England to support SPAs with SSSI status, there were precedents for an SPA without an SSSI designation.

Mr Falcon’s second point was that there was no scientific justification for designation. He queried the reasons for the change in policy from 1994, and argued that the designation of such a large area of arable land was inappropriate and very concerning to those whose livelihood depended on being able to utilise the land effectively.

Thirdly, Mr Falcon criticised the drawing of the SPA boundary and argued that the scientific data did not support the boundaries currently drawn, since they included woodland unsuitable for nesting and in some cases on the boundaries there were fields where there was no record of stone-curlew having nested.

Fourthly, Mr Falcon argued that English Nature had discriminated against landowners who had cooperated. There was “complete bafflement” as to why English Nature seemed to consider a designation necessary and why it had been reluctant to consider alternative approaches in conjunction with the landowners. English Nature, he said, were well aware that the breeding performance of the stone-curlew in the Brecklands over the last five years had been good, and that numbers had increased. This could not have happened without the positive contribution and support of the landowners, who were now penalised by the designation.

Fifthly, Mr Falcon argued that the owners had suffered financially as a result of the proposed designation and would continue to do so if the designation proceeded. They had incurred a considerable amount of professional costs, and a large area of arable land would be devalued through designation.

Finally, Mr Falcon argued that the stone-curlew would thrive better without land being designated as an SSSI, and with positive cooperation from the landowners. It was perfectly possible for English Nature to enter into agreements with landowners whether or not SSSI designation applied. The landowners remained fundamentally opposed to the SSSI designation whilst firmly committed to the conservation of the stone-curlew. He described the proposed designation as “unnecessary bureaucracy”.

Mr Falcon was then questioned by Members of the Council firstly as to the estimated loss of value and secondly as to what the landowners thought they would not be able to do if their land was designated that they would otherwise have been able to do. What sort of constraints did the landowners think they would be under?

Mr Falcon was unable to quantify the prospective loss due to the devaluation in the land since the situation was unique. He was, however, certain that there would be devaluation. As to restraints, Mr Falcon recognised that a lot of work had been done in trying to minimise the effect that an SSSI would have on the agricultural operation, but he was, once again, unable to be specific about the constraints, which would be involved. He said: -

… There are a number of different operations that come along that one will need to seek authority from English Nature and in a lot of cases that would be given, but in some cases it won’t be. It is a bureaucratic shackle which landowners do not need.

In the light of the argument that SSSI status constitutes an unwarranted and disproportionate interference with the appellants’ rights under Article 1 of the First Protocol of the European Convention on Human Rights (ECHR) (see below paragraph 94(6) and (7)) this is, I think, a significant answer.

The first Appellant then addressed the Council. He read a document, which he had prepared. He complained that over fifteen years ago he had granted access to the RSPB to assist with the stone-curlew recovery project. He had acted in good faith. For that, he had been repaid by what he described as a “gross breach of trust”. He had not been informed that English Nature had become involved. He complained of a lack of pre-designation consultation. He described the citation for the designation as “fundamentally flawed, and based on unpublished information that was not gathered specifically or with scientific validity for the purpose”. He complained that his rights under the Data Protection Act may have been infringed.

The first appellant then accused English Nature of breaching its own procedures by failing to seek his permission to access the land for an area of search, survey or mapping. English Nature had achieved what he described as his “undying enmity”, and although it was contrary to the officers’ recommendation, lifting the designation was the only way to begin to recover his cooperation. He recommended any landowner with any sense of responsibility to curtail any links they may have with English Nature and the RSPB, however enjoyable their current relationship. The stone-curlew was a protected species wherever it was found; landowners who had proved their commitment to its conservation were not being heeded as to how best a greater population could be achieved.

The Council then heard from Mr Barry Hawkins who described himself as “only a Norfolk countryman”. He accepted that the conditions that had been set down at the present time did not look onerous, but as time passed those designations would change. He was equally sure that there would be devaluation in the land over a period of time, because of the loss of freedom of action on the part of the landowner, which was the concomitant of an SSSI. He confirmed that his clients would continue to look after the stone-curlew.

Mr Hawkins was asked what his clients would do differently to help the stone-curlew if there were no SSSI designation. His response was that the SSSI was another layer of bureaucracy, a further layer of red tape, which discouraged cooperation.

It was also suggested to Mr Hawkins that land values would not necessarily fall since the land could be sold to someone who was of the opposite opinion and welcomed the designation. Mr Hawkins accepted that this might be the case.

The final objector was Mr Rudderham who managed the conservation interests at the Elveden Estate. He had been involved in the working group, which discussed the issue. He had three complaints. The first related to the fall in land values. The second related to the time constraint under which the objectors had had to work to consider their position. The third was the approach and methodology used in informing landowners of the proposed designation. He also complained that the scientific evidence used to support the designation was dated.

As to the first complaint, Mr Rudderham regarded the falling land prices as potential rather than actual. He did not know if it would happen, nor did he know what recourse would be open to landowners if it did. As to the second, the Birds Directive and Natura 2000 were enough. As to the third, he felt misled over the methodology. In 1999, all owners and occupiers had received a letter explaining the need to “check the boundaries we have identified as being important”. The same letter explained the SPA designation and its role in nature conservation. With that letter, landowners had received a leaflet called Special Sites for Birds in which it stated that in England as in the rest of the UK, all SPAs were protected as SSSIs. He said that this had been taken at face value to mean that SPAs were only to be designated on existing SSSIs. The leaflet had not said that all SPAs were to be protected by SSSIs. Accordingly, he felt deceived.

Mr Rudderham’s final point, which he developed at some length, was that it would be more appropriate to designate the SPA in the immediate future on the existing heath land SSSI, and look for a more united solution to the arable population.

There was then a discussion amongst the Council members, of which, once again, we have a transcript. It is unnecessary to cite at length from it. It is sufficient to recall that the discussion was both highly informed and relevant. Some points made, are, however, of importance for the purposes of this judgment. Mr Nicholas Woolley made the point that it was common ground amongst the landowners that the Breckland Farmland should be designated an SPA. Mr Woolley commented: -

…. in the light of the English legislation and in the light of quite clear specific Government direction to us, this justifies and requires this land to be designated an SSSI and I feel that in many respects that there is no further argument. It is accepted that it qualifies as an SPA and under our Government’s direction that means that it must be designated an SSSI.

Mr Woolley’s point was picked up by Mr Stephen Tromans, a barrister who specialises in Environmental Law. He said: -

The first point which just really follows on from what Nicholas said about SPAs. The way I look at it is slightly different to that in that my approach is the fact that land may be an SPA is clearly relevant to our decision, I don’t think however we can simply pass the buck and say because land is an SPA therefore automatically it must pass the SSSI test. I think we have to make our own minds up on that on the information available because that is what the legislation requires us to do.

Slightly later in the discussion, another Council member, Mr Ed Gallagher, reverted to the SPA / SSSI point. He said: -

I am unclear having heard a spectrum of arguments put forward about this SPA / SSSI argument, the most extreme is we have to, if it’s SPA we have to – no choice, at the other extreme we can exercise a fair amount of discretion. To help me understand this, if we put it the other way around and we decided not to do it, would there be pressure for judicial review or pressure from Government that we were not following their guidelines?

The Chair, Sir Martin Doughty then asked Mr Tromans to address this point. Mr Tromans said: -

Well Chair, simply it seems to me that whatever Government policy may be as to the linkage between SPAs and SSSIs, the question for us this morning as Richard Barlow said is whether the land meets the criteria of the legislation that we are dealing with. We can’t regard ourselves as being bound by Government policy to say something is an SSSI if we don’t think in our heart of hearts that it really is, I think that is the key to it.”

Sir Martin then commented that this was very clear and asked Mr Woolley to come back on the point. Mr Woolley said: -

“I am sorry when I spoke before about my feelings that it followed that it should be designated an SSSI, my feeling which in my strong belief I should say which I didn’t perhaps make clear, was that to my mind if we have an area of land whether it be large or small, if it is of sufficient international interest that it should be declared an SPA. Surely to goodness if it’s of such international importance it is very hard to believe that it isn’t of sufficient national interest. If the science is there to back up the international interest it surely is there in abundance to back up the national interest, that is that one point.”

The only other contribution to the debate that I need to record comes from Ms Anne Kelaart who said: -

“I just wanted to say that I have a great deal of sympathy with the landowner point of view, there is nothing more galling than being told what you must do on your own land and even more particularly when it’s something you are already doing, but it is difficult. I do feel in this case however, that English Nature has gone the extra mile, that we have tried to come up with an imaginative solution, and that a tremendous amount of effort has gone in and I’m really happy that so many of the landowners are content with this. I think that there is no contest but that this is a huge site but of outstanding interest.”

The minutes, which I do not propose to record in detail, accurately reflect both the objections made and the subsequent discussion. They conclude: -

Council discussed the issues noting that a decision was required upon the existence of special interest at the site and concluded that such special interest is in place on the Breckland Farmland site.

Council confirmed the notification with modifications in accordance with the officer’s recommendation, modifying the citation and the boundaries of the site as shown in … (details given).”

Before turning to the challenge to the Decision in the instant case, and Lightman J’s judgment it is, I think, instructive to consider the decision of Forbes J in the parallel case of Aggregate in which the claimant’s challenge to English Nature’s SSSI confirmation was rejected by the judge.

The land in question comprised in that case some 600 acres in Hampshire which had planning permission for mineral extraction and is identified for the purposes of the decision as “Bramshill”. The basis of the challenge was threefold, namely that: -

Forbes J rejected all three heads of challenge, and dismissed the application for a declaration of incompatibility. He decided the Article 6 point on what can loosely be described as Alconbury principles, namely that whilst English Nature did not have a sufficient appearance of independence and impartiality, there were sufficient safeguards built in to its decision making process which, when added to the court’s powers of judicial review rendered the process Article 6 compliant, as the court possessed “full jurisdiction” to deal with the case : - see R v Secretary of State for Environment Transport and the Regions ex parte Alconbury Developments Limited [2001] 2 WLR 1389.

For the legitimate expectations limb of its argument, the claimant relied on a sequence of events starting with the fact that in February 1989 about 12% of the site had been confirmed as an SSSI. In 1993 the whole site was notified as an extension to the existing 1989 SSSI, but on 29 June 1994 the Council of English Nature had refused to confirm the notification. The judge summarised English Nature’s rationale as follows: -

Forbes J cites a number of passages from the June 1994 rationale, including the following: -

However, as Forbes J records, English Nature’s approach to notification as SSSIs of areas providing such “temporary habitats” changed in February 2000. It is also clear that English Nature had received a request from the then Department for the Environment, Transport and the Regions (DETR) to consider designating as SSSIs certain areas of temporary habitat which supported various species of Annex 1 birds (and which included both the Brecklands and Bramshill) so that progress could be made on classifying those areas as SPA from their existing status as pSPA.

As summarised by Dr. Brown for the purpose of the meeting of the Council held on 29 February 2000, and cited by Forbes J in paragraph 36 of his judgment: -

In the instant case, of course, the challenge based on the change of policy is not argued as a breach of legitimate expectation. However, the answer which Forbes J gave to it is, in my judgment, equally applicable to the argument that the change of policy was unwarranted and irrational because it was brought about by political pressure. The judge said: -

It is also noteworthy that in Aggregate the claimant advanced the argument that the decision to designate was made for an irrelevant reason, namely to accommodate the DETR’s requirement to have the SSSI statutory regime to underpin SPAs, so that there would be compliance with the UK’s European obligations under the Birds Directive. The claimant argued that a decision to designate an SSSI on that ground alone and without any factual basis to support any finding that a special interest existed of the type specified in section 28(1) of the 1981 Act was irrational and unlawful.

Forbes J rejected that argument in a passage which was cited by Lightman J in the instant case. He said: - [2003] Env. LR 3, 83 at 134 (paragraph 125): -

The stage is, I hope, now thoroughly set for the appellants’ challenge to the Decision. In their amended statement of facts and grounds, the Claimants advanced the following grounds of challenge: -

(1)

English Nature has exceeded the powers afforded to it under Section 28 of the 1981 Act by designating as an SSSI a vast area of ordinary farmland which stone-curlews use on a transient basis at a very low density;

(2)

By designating the Breckland Farmland as an SSSI English Nature has adopted a construction of “special interest by reason of its… fauna” in Section 28(1) which was beyond the reasonable range of meanings open to it. In this context the Claimants relied on the emphasis in Section 28 on the intrinsic interest of the land itself in contrast to the purposes of the relevant European legislation.

(3)

English Nature had failed to carry out adequate investigations and had failed to ask itself the right questions and to take reasonable steps to acquaint itself with the relevant information to enable it to properly designate the land an SSSI. In this regard it had failed to identify those parts of the 13, 335.70 hectares where the stone-curlews were in fact present. Consequentially large parts of ordinary farmland in which no stone-curlews were regularly present and in respect of which there was no scientific interest had been designated.

(4)

The decision was irrational because it proceeded on the basis of flawed logic. The decision making process had been tainted by the incorrect assumption that just because the land in question had been identified as a potential SPA, it followed that it was necessary to designate it SSSI. Properly understood the decision to designate had to be made by English Nature based on different criteria than whether the land in question was part of a potential SPA. There was no requirement (as a matter of law) for or benefit (in practice) from double designation. English Nature’s approach had been in effect to apply a presumption in favour of a double designation (resulting from pressure from the Secretary of State to designate every part of potential SPAs as SSSI) and wrongly to equate the mere fact that the land in question qualified as part of a potential SPA with the satisfaction of the test that the land was itself of special scientific interest (and national importance) without understanding the different focus of the 1981 Act from the relevant European legislation. These recurring flaws in the decision-making process reveal an error of law.

(5)

Furthermore the double designation was also irrational because the OLDS added nothing of substance to the protection which was already available; they simply duplicated existing controls whereas the designation as SSSI did add extra restrictions, which served no useful purpose.

(6)

English Nature had acted in breach of Section 6 of HRA 1998 in a way incompatible with a Convention right. The right engaged was Article 1 of the first Protocol to ECHR which provides: -

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law”.

(7)

Article 1 required a fair balance to be struck between the interests of the state and the rights of the individual. In order to satisfy the fair balance test there had to be a reasonable relationship of proportionality between the means employed and the aim pursued. The designation to notify engaged Article 1, and whilst the protection of stone-curlews was a legitimate public interest the designation of such a large area of arable land imposed unnecessary restrictions on the claimants’ enjoyment of their property and was disproportionate.

Lightman J dealt first with the question of statutory construction. In paragraphs 18 to 22 of his judgement he said this: -

“18.

I should first say a few words on the construction of sections 28 and 28D. English Nature has a duty under section 28(1) to notify an area of land if it holds the opinion that the statutory criteria are satisfied. If (for example) English Nature is of the opinion that an area of land is of special interest because of the bird population, which it supports, then it must notify. Section 28(1) affords scope for judgment: it affords no scope for discretion. The notification has immediate legal effect. English Nature must however thereafter within nine months decide whether to withdraw the notification or confirm it (with or without modifications) or it will lapse. Though section 28(5) in setting out the alternative courses available to English Nature uses the word “may”, a term which ordinarily connotes a discretion, notwithstanding the obiter dictum in R v. Nature Conservancy Council ex parte London Brick Property Ltd [1996] Env. LR 1 to the contrary, as it appears to me, if English Nature continues to be of the opinion that the statutory criteria are satisfied, the discretion can only lawfully be exercised one way, that is in favour of confirming the notification. They cannot lawfully withdraw the notification or allow it to lapse. For any other course than confirmation would bring into play once again the immediate duty of English Nature to make the notification, and the legislature cannot sensibly have intended this roundabout method of continuing the legal consequences of the continuing opinion of English Nature that the statutory criteria are satisfied.

19.

The statutory scheme requires English Nature at two distinct and successive stages to exercise its expert judgment on three matters: (1) to determine whether the statutory criteria are satisfied; and if so (2) to specify the flora, fauna or geological or physiological features by reason of which it is of special interest; and (3) to specify any operations likely to damage the flora, fauna or those features. The first stage is the notification stage and the second is the confirmation stage when the decisions at the notification stage require reconsideration in the light of objections, representations and further information received in the interim. English Nature in determining whether the area is of special interest for any of the four possible statutory reasons will have regard to the fact that the judgment is called for in the context both of their nature conservation function and of legislation directed at nature conservation and designed to place constraints on land owners required in the interests of such conservation. There is no requirement that the land is of national importance: cf section 29(2)(b) of the 1981 Act since repealed by the 2000 Act.

20.

In view of the arguments before me I must underline one consequence of the fact that the exercise required of English Nature is exclusively one of judgment. If English Nature are of the opinion that the statutory criteria are satisfied, they have no discretion to decline to notify or confirm (and accordingly displace section 28 and the statutory scheme of which it forms part) by reason of a preference for application of some other statutory or non-statutory scheme or by reason of any objection to or dissatisfaction with the legal consequences of notification or confirmation. In particular English Nature cannot refuse to confirm (as submitted by the Claimants) because they consider that the population of stone-curlews would be protected more effectively and in a way occasioning less interference with the peaceable enjoyment of their possessions by landowners by voluntary agreements with landowners or by the classification by the Secretary of State of the area of land in question as part of a SPA.

21.

Further it is clear (notwithstanding submissions by the Claimants to the contrary effect) that the duty of English Nature to exercise their own judgment and notify and confirm in accordance with their expert judgment cannot and should not be qualified by their own past practice or by provisions in the Guidelines. The Guidelines may inform English Nature in reaching their judgment, but not constrain. This fully accords with the judgment of Forbes J in R (On the application of Aggregate Industries UK Ltd v English Nature [2002] EWHC 908: [2003] Env.L.R. 83 (Aggregate), who made clear that, once the current Members of the Council of English Nature came to the conclusion that a site did satisfy the statutory criteria, they were duty bound to act in accordance with their own opinion, whether or not this involved a departure from a previous decision or a change in policy.

22.

As I have already said, it is to the existence of the legal consequences of the notification and confirmation that the Claimants take objection as unfair and unnecessary interferences with their rights of ownership and which (they contend) are avoidable by classification as a SPA instead of confirmation as a SSSI as the statutory vehicle for bird protection or by recourse to non-statutory means, namely agreements with the landowners. In my view, for the reasons which I have given, these grounds of objection are not legally tenable. English Nature are statutorily obliged to apply the criteria laid down in section 28. Whether the area satisfies the criteria of a SSSI cannot be affected, still less determined, by the existence (let alone the possible future existence) of what may appear more attractive alternative courses of action (e.g. classification as an SPA) nor can their existence lawfully deflect English Nature, if satisfied that the criteria are satisfied, from the course of notification and confirmation.”

Lightman J then turned to deal with the claimants’ challenges to the Decision. He found that it was clear from the Minutes of its meetings and beyond dispute that the reason for the resolutions of English Nature to notify and confirm the notification was the internationally important population of stone-curlew. He pointed out that on both occasions English Nature had stated this was reason for their resolution. The decision was, accordingly, on its face, valid.

Turning to irrationality, the judge summarised the challenges as (1) a departure from previous practice between 1994 and 2000 of not granting SSSI status in the case of extensive areas of conventional plantation or to habitats of migratory birds or birds who nested in areas only sporadically; and (2) departure from the JNCC Guidelines. I have already summarised the manner in which the judge dealt with these.

The third and the most serious allegation which the judge then identified was that English Nature had decided to confirm the notification, not on its merits, but to give effect to the wishes of the Secretary of State, and to underpin the pSPA in this way and to improve the prospects that the Secretary of State would classify the SPA.

The judge identified two matters required to be considered in this context: -

(1)

the relationship of designations or classifications as SPAs and SSSIs; and

(2)

the approach adopted by English Nature to designating the SSSI and the statements made by, on behalf of and to English Nature up to and including the meeting at which the Decision was made.

The judge then reviewed the relationship between the designations of SPA and SSSI in the following paragraphs: -

“This application is not the occasion for any detailed examination of or exegesis on the relevant legislation (and in particular European legislation) relating to SPAs. In this context it is important to bear in mind that there is as yet no SPA and (in particular in the absence of an SSSI) there may never be, and the performance of the duty of English Nature under Section 28 cannot lawfully be deferred to await the exercise of jurisdiction by the Secretary of State to classify an SPA. It is sufficient for the purpose of this application to have in mind two matters. The first matter is that there are close links between the two statutory schemes. In this context it is relevant to note that: (1) Regulation 3 of the Conservation (Natural Habitats) Regulations 1994 provides that English Nature shall exercise their powers under section 28 so as to secure compliance with the Habitats Directive; (2) the Guidelines, after referring to the international obligation to nature conservation in terms of site protection under (amongst other treaties) the Birds Directive and the Habitats Directive (transposed into English law by the Conservation (Natural Habitats) Regulations 1994), go on in paragraph 3.2 to say:

“It seems axiomatic, that if an area, feature or species is of international importance, it must be of special interest in its total national occurrence. In these cases it is necessary to select all sites above a critical standard, and not to rely on choosing only exemplary areas in order to meet the international conservation obligation. This can apply to habitats which are extensive (e.g. blanket bog) and to species which are numerous … as well as to habitats and species which are localised and rare.”

and (3) in Aggregate, Forbes J held that English Nature were to take into account “the site’s function as part of a larger area of European importance”.

30.

The second matter is the Government’s views on the relationship between the two schemes. By letter dated the 19^th June 2003, the Treasury Solicitor confirmed to this court: (1) that “the Government takes the view that the provisions of the Birds Directive with respect to SPAs, as adapted by the Habitats Directive, are transposed in part by the provisions of the 1981 Act relating to SSSIs, as supplemented and adapted by the provisions of the Habitats Regulations 1994;” (2) that “the Government’s view on the interrelationship of sites of international importance (such as SPAs) and SSSIs is as recorded by Forbes J in paragraph 25 of his judgment in Aggregate”; and (3) that the Government’s view on the question whether an area should not be classified as an SPA unless it has also been notified as an SSSI was reflected in the same paragraph.

“The Government would expect, as a matter of logic, a site appropriate for SPA designation to fulfil the criteria for SSSI notification. If a site being considered for SPA designation were to be regarded as not fulfilling the SSSI selection criteria, the Government would wish to reconsider the evidence supporting SPA candidature.”

These clearly have been the thrust of the Government’s views for some time and were correctly understood as such by English Nature when the Decision was made.”

The judge then reviewed the change of policy, the correspondence and what occurred at the meeting, citing essential passages from the record which I have set out above. He concluded: -

“36.It is manifest from the transcript and minutes of the meeting that the members of the Council were advised and recognised that they had to determine whether the land notified was of special interest as stated in Section 28. It was not simply Mr Tromans who gave that advice; he was endorsing the advice provided previously by the Council’s own solicitor, given after representations made by a representative of some of the landowners affected about the relationship between SPAs and SSSIs. The Chairman found Mr Tromans’ advice very clear and Mr Woolley did not suggest that in the light of it he remained of the view that there was any legal requirement as such to notify if the land was in a SPA. There is no reason to doubt (and the Claimants have not alleged that the minutes are untruthful when they state) that the Council noted that “a decision was required upon the existence of special interest at the site” and that they concluded that there was such a special interest. The Council accordingly addressed themselves to, and answered, the correct statutory question and confirmed the reason why the area of land had special interest.

37.

In my judgment it is wrong to suggest that it is legally irrelevant or impermissible for English Nature to take into account, in deciding whether an area is of special interest by reason of the bird population it may support, the fact it considers that that area is (or forms a part) of one of the most suitable territories in number and size for the conservation of birds who are recognised as being of special significance at a European level as well as in national legislation. Indeed (as I have already said) Forbes J held in Aggregate that English Nature were entitled to take into account “the site’s function as part of a larger area of European importance”. I refer also to the matters and the passage in the Guidelines set out in paragraphs 11 and 12 of this judgment.

38.

I see no reason to disagree with the Government’s views as to the relationship between SPAs and SSSIs in terms of the transposition of the Birds Directive but whether or not those views are correct is immaterial. What is clear is that English Nature applied and determined the issue of confirmation by reference to the statutory criteria and for the reason which they gave, namely to protect stone-curlews and for no such collateral reason as the Claimants allege; and that, so far as they regarded it as a relevant consideration in the exercise of their judgment whether the statutory criteria were satisfied that the area of land in question was appropriate to be classified as a SPA and that they had made a recommendation to this effect to the Secretary of State, that was a view they were fully entitled to take. But even if I am wrong and they were not entitled to treat as a relevant consideration the fact that the site was in their view appropriate to be classified as a SPA, there can be no doubt that, even if English Nature had ignored this consideration, they would have reached (and indeed could only have reached) the same conclusion namely that the statutory criteria under Section 28 were satisfied. ”

On the question of English Nature’s jurisdiction to designate the entirety of 13,335.70 hectare as an SSSI the judge stated: -

“As I have already held, there were in fact no such departures from the Guidelines, but whether or not this is so, as a matter of law none of these considerations could preclude a determination by English Nature that the statutory criteria were satisfied: rather these are at most relevant considerations for English Nature to take into account in the exercise of the jurisdiction committed to them of deciding whether the statutory criteria were satisfied and the area in respect of which it was satisfied. It at all times remained open to English Nature reasonably and sensibly to reach the conclusion which they did that the whole area was of special interest because of the support which it provided for such a significant proportion of such an important and rare bird species recognised as being of European significance: consider Aggregate at paragraph 123. English Nature had to decide whether to confirm and (if so) how extensive the SSSI area had to be if it was to provide the requisite protection. The Members visited the area between the dates of notification and confirmation and applied their expertise and judgment. There is no basis on which this court can or should substitute its judgment for that of English Nature. As Forbes J said in Aggregate at para 106(3) “English Nature is far better placed and qualified than a court to make the requisite assessments and value judgments”. In this context it is to be noted (as I said earlier) that the Claimants, though granted permission to challenge the Decision on the ground that English Nature had failed to provide a scientifically justified basis for the land which it notified, did not pursue this ground and there is accordingly no vulnerability or exposure to criticism of the Decision on this ground.”

The judge turned finally to the argument under Article 1 of the first Protocol. The judge found that the allegation that the confirmation of English Nature’s notified opinion that the area was of special interest was disproportionate (assuming that opinion to be genuinely and not unreasonably held) was plainly not maintainable because English Nature was duty bound to confirm the notification if it held that opinion and accordingly its decision to do so could not be such as to be incompatible with Convention right: only the statutory provisions could be incompatible and the Claimants had disavowed any such challenge to the legislation. Furthermore, the Claimants did not, and could not contend that the mere notification or confirmation of English Nature’s opinion would in itself be incompatible with their convention rights. That opinion of itself did not interfere with the peaceful enjoyment of their possessions in any respect: it simply represented English Nature’s opinion.

There was no challenge to the confirmation of the specification of OLDs, nor could there be. All the specification required was that consent be obtained for them before they were carried out on pain of committing a criminal offence.

As to a complaint based on the effect of being within an SSSI under other statutory regimes, and to the effect that restrictions imposed under the regimes in respect of land within SSSIs were more than are strictly required, the judge regarded that complaint as likewise misconceived. It was, in his judgment, irrelevant to English Nature’s decision to confirm notification. At best, from the claimants’ point of view, they might show that the effect of being within an SSSI under other statutory regimes was unlawful as being disproportionate. Their complaint in such a case would be that the other statutory regime (for example a GDO) was unlawful as being incompatible with their Convention rights. But that did not mean that English Nature’s decision that this area was of special interest and that their confirmation of the notification were themselves incompatible with the Claimant’s rights under Article 1.

The judge concluded with these two paragraphs: -

“45.

Finally, a complaint that the Claimants’ property should lie within, not an SSSI, but within a SPA is again irrelevant. The only decision for English Nature relates to whether or not to notify, and to confirm the notification of, the area of land as being of special interest. Given that English Nature are duty bound to notify and maintain the notification if in their judgment the statutory criteria are satisfied, any complaint on the part of the Claimants must be that the statutory scheme (not the Decision) is incompatible with their Convention rights if it permits or requires such notification when (a) English Nature think that the land ought to be within a SPA or (b) when it is. Such a case of statutory incompatibility the Claimants disavow.

46.

I should add that if the legal merits of any complaint did need to be examined in any more detail, under Article 1 a fair balance must be struck between the general interest and the interest of any property owner. But in considering questions of proportionality under Article 1 the European Court of Human Rights has made it plain that states enjoy a wide ‘margin of appreciation’ in this area relating to the control of the use of land in the public interest for environmental reasons, and that the controls prescribed or interferences involved must be without any reasonable foundation if the court is to regard them as disproportionate: Fredin v Sweden [1991] 13 EHRR 784. It is well established that a reasonable relationship of proportionality under Article 1 does not import a test of strict necessity (as Mr Holgate has argued). The fact that there may be other even better methods of achieving the same ends does not necessarily mean that any particular measure is disproportionate under Article 1: see James v the UK [1986] 8 EHRR 123; Tre Traktorer Aktiebolag v Sweden [1991] 13 EHRR 309. That ‘margin of appreciation’ is properly reflected domestically in the respect that is due: (a) to the choices that the legislature is entitled to make in this area (for which it is democratically accountable): and (b) to any judgement made by English Nature as a specialist regulator, expert in the matters of nature conservation: cf Holder v the Law Society [2003] EWCA Civ 39, 1 WLR 1059. As Forbes J stated in Aggregate, the legislation and Decision fall well within the areas of respect to be accorded to the legislature and English Nature. Most particularly the provisions for notification and confirmation are essential parts of a regime: (a) designed by the legislature to ensure that informed decisions are made before potentially damaging (and indeed irreversible) actions are taken; and (b) to be brought into play in appropriate situations by English Nature; but (c) leaving the landowners free at all times to apply to be absolved from the bonds imposed on them. It was a choice which the legislature was entitled to take in this area and it was likewise open to English Nature to make the Decision.”

The judge refused permission to appeal. In their skeleton argument prepared for the permission application, Mr David Holgate QC and Mr Daniel Kolinsky summarise the grounds contained in the Appellants’ notice in the following terms: -

Carnwath LJ on the papers granted permission on grounds 1, 2 and 4 of the Appellant’s notice. His reason for so doing are as follows: -

“Although the judge’s reasoning is comprehensive and persuasive, there is an arguable issue as to whether the judgment required by section 28 is as unconfined as implied by the unusual facts of this case, particularly having regard to Article 1 of the first Protocol. The emphasis is on grounds 2 and 4 but there is an overlap with ground 1…

I refuse permission on grounds 3 and 5: - the judge did not rule out the challenge because of the failure to make a challenge in 2000; his decision on MAFF was clearly within his discretion.”

Mr Holgate and Mr Kolinsky argued that the immateriality issue identified in ground 1 of the Appellant’s notice focused on three matters which they contended were taken into account by English Nature in the decision making process, and which influenced English Nature to a substantial extent. These were: -

(1)

a perceived need to “underpin” SPA designation with SSSI status;

(2)

a belief that it was axiomatic that if land met the criteria for SPA based on international interest then every single part of that land must meet the criteria for SSSI; and

(3)

an assumption that there were only two possible outcomes – either (1) the land is designated both as SPA or SSSI or (2) it is designated as neither.

Mr Holgate and Mr Kolinsky began by identifying the common ground between themselves and English Nature. They accepted that the area of land designated by English Nature as an SSSI formed part of a wider area which the Government proposed to designate as an SPA under the Birds Directive. The Appellants were content that the land should be designated an SPA. The only reason the Government had not so designated the land was, it appeared, because it was awaiting the final outcome of the Appellants’ application for judicial review.

By way of background, Mr Holgate and Mr Kolinsky argued that there was no legal requirement for all or any particular land included within an SPA under the Birds Directive to be notified as an SSSI in its own right; and secondly, that the two regimes did not have synonymous purposes. They argued that SSSIs were concerned with the protection of existing and established scientific interests whereas SPA’s could be established for broader purposes including the enhancement of the species or its habitat. They pointed out that the statutory scheme relating to SSSI made no reference to possible enhancement or recovery of a species or its habitat, and that while section 28(4) of the 1981 Act enabled English Nature to give its “views” about management of land including “conservation and enhancement” the controls which followed did not require landowners to undertake “enhancement”. “Restoration”, the term used in section 28J of the 1981 Act when dealing with the burdens which could be imposed on landowners by management schemes, was distinct from “enhancement” and did not require the creation of new or additional ecological values.

Mr Holgate and Mr Kolinsky accordingly sought to argue that the notification and confirmation in the instant case were for a purpose not envisaged by the 1981 Act, namely that it was to “recover” the stone-curlew population: this was enhancement, and whilst it fitted well within the broad purposes of the scheme for SPAs, it did not fit within the SSSI scheme.

Counsel pointed out that the measures taken to enhance the stone-curlew population depended critically upon the cooperation of the landowners. The SPA regime provided a mechanism to underpin such voluntary cooperation through Regulation 16 of the Habitat Regulations 1994. Agreements could be made for wide purposes (“for the management, conservation, restoration or protection of a site or any part of it”), as such agreements were underpinned by the existence of compulsory purchase powers: - see Regulation 32.

Counsel then took us through the correspondence between English Nature and the DETR and other documentation produced in the period leading up to the decision to notify. They argued that what they called the “immaterial considerations” featured significantly at all stages of the decision making process, and were prominent in the documentation produced by English Nature for both internal and external communication.

As to the discussion which took place prior to the decision to confirm the notification, Counsel criticised the judge for relying on the comments by Mr Tromans and the advice given by Mr Barlow which I have set out in paragraphs 78 to 80. They submitted that even those comments do not contain any oral direction at the meeting excluding from consideration the immaterial considerations which had featured in the decision making process. They submitted that the judge did not address the issue of whether the immaterial considerations were effectively excluded from the decision making process. They submitted that the minutes of the meeting do not explain the basis upon which it was considered that the site was of special interest or reveal what influenced members. Nor, they submitted, did the minutes record any effective exclusion of the immaterial matters. Accordingly, Counsel argued that the immaterial matters were not effectively excluded from consideration and influenced English Nature to a substantial extent.

Mr Holgate and Mr Kolinsky then turned to the judge’s reasoning. They criticised him for treating the decision to notify as a discrete stage from the decision to confirm. This had led him wrongly, to criticise the Appellants for not challenging the notification itself.

The judge’s approach to the construction of section 28 had, Counsel argued been wrong. His analysis deprived English Nature of any discretion. He did not address the issue of what the relevant criteria were which had to be taken into account by English Nature in forming its opinion. By failing to do so, the judgment simply did not engage with the Appellants’ complaints that immaterial considerations pervaded the decision-making process.

The judge’s construction of section 28, Counsel argued, precluded English Nature from considering the legal consequences of notification. He thus did not undertake any comparative analysis between the legal consequences between SSSI status as compared with the effects of designation of the land as an SPA. As such, his analysis did not touch upon the correctness of the repeated assertion by English Nature that it was necessary to underpin the SPA with SSSI status. They argued that the judge had simply not addressed the legal issue of whether the SSSI statutory scheme was capable of being used for nature promotion purposes (stone-curlew recovery) which, factually, was the sole basis for justifying the designation in this case.

Counsel argued that the judge’s analysis of the relationship between SPAs and SSSIs was erroneous. He was wrong to place emphasis on the fact that there was, as yet, no SPA in relation to the Brecklands Farmland when the only reason why SPA designation had not been made was the outcome of the Appellants’ challenge was being awaited. The fact of the matter was that as a matter of law, the Secretary of State was under a duty to designate the SPA.

Counsel argued that the judge was wrong to reject the Appellants’ contention that English Nature’s decision to confirm the notification was based on immaterial considerations. He should have taken into account the entire decision making process, and not simply what was said at the meeting of 11 July 2001. He failed to address the question as to whether or not the matters relied upon by English Nature (the immaterial considerations) were correct. He failed to recognise that there was no need in law to underpin every SPA with SSSI designation over all the land within it. He failed to give any weight to the consideration that on the facts of this case double designation served no useful purpose since the protection which English Nature wanted would have been available under Regulation 16 of the Habitats Regulation without the need for SSSI notification. Furthermore, the assumption that the criteria for SPAs were identical to those for SSSI was erroneous, and the judge demonstrated a fundamental misunderstanding of the difference between the regime under the 1981 Act and the relevant European legislation. This was because the Birds Directive promoted not just the conservation but also the enhancement or addition of habitats for birds. In contrast, the 1981 Act was concerned with the conservation of existing scientific interest and management, not the recovery or enhancement of species. Furthermore, it was to be expected that SPAs could cover wider areas than SSSIs. In relation to the present case, the SPA could extend to areas which had not been surveyed as potential habitat for stone-curlew. Furthermore, as a matter of law, it was entirely possible for land properly contained within a larger area of an SPA not to meet the criteria for SSSI. Thus it was open to English Nature, as a matter of law and fact, to make recommendations to the Government to designate the Brecklands Farmland as an SPA without including it within the SSSI. The judge had treated the Government’s views and English Nature’s acceptance of them as a matter of established fact rather than evaluating whether the substance of those views were correct as a matter of law or not. In these circumstances, the principle established in Simplex v Secretary of State [1998] 3PLR 25 applied, and the decision to confirm the designation should be quashed as being based in part on immaterial considerations.

As to the construction of the 1981 Act, section 28(1), Counsel submitted, was open textured and contained no real guidance as to what is special. The application of the approach to the construction of statutes established in Padfield v Ministry of Agriculture Fisheries and Food [1968] AC 997 namely the duty to notify once the “specialness” criteria are satisfied, was not the end in itself but exists for specific statutory purposes (that is to say the legal consequences contained in the 1981 Act). Counsel argued that it could not be right that in deciding whether something was special no regard should be had to the statutory consequences which flow from that. Otherwise, they argued, identification would follow under the statutory scheme even if it served no relevant statutory purpose.

The purposive construction of the statute which treated the consequences of notification as a material consideration in the formation of a judgment as to the specialness of the proposed site was consistent with the repeated reliance by the officers of English Nature on the need to underpin the SPA as part of the justification for SSSI, and with the approach reflected in the JNCC guidelines. By approaching the construction of section 28 in what Counsel described this “unduly narrow way” the judge, they argued, had erred by failing to decide the facts of this “unique” case were beyond the reasonable range of meanings which could be attached to “site of special scientific interest”.

As to the argument on Article 1 of the first Protocol, if the Appellants were correct in submitting that the legal consequences of notification were relevant to deciding “specialness” then the effect of those consequences on the Appellants’ right to enjoyment of their property was relevant; the availability of other measures which would achieve English Nature’s ecological objective at less harm to landowners was also relevant; and the issue of proportionality arose.

The Appellants’ contention was, on the unique facts of this particular case, that notification of the Brecklands Farmland as an SSSI served no useful purpose and was counter-productive. Accordingly, to the extent that it interfered with Appellant’s property rights it did so in breach of Article 1 of the first Protocol.

The Appellants relied in particular on the following facts and matters: -

(1)

that the SSSI regime imposes restrictions all year around even though the stone curlew are only present from March to October. By contrast SPA designation leads to more targeted controls (imposed under the 1994 Regulations) which relate to the purpose of the SPA and thus are no more onerous than necessary;

(2)

SSSI designation necessarily imposes additional consultation requirements whereas SPA status leads to more targeted consultation requirements;

(3)

because we are here concerned with high value agricultural land, there is a real danger that an additional level of designation will have an impact on land values;

(4)

The restrictive regime of the SSSI lacks logic in that: - (a) restrictions are imposed even though voluntary cooperation is working. Those restrictions may well jeopardise the voluntary cooperation, which exists; and (b) the favourable conditions for the stone-curlew depend upon crop rotation. Yet crop rotation is the one thing which will not be controlled – so there is nothing to stop farmers sowing winter crops which would destroy the stone-curlews nesting conditions.

At the conclusion of the argument, I find myself unpersuaded by any of the appellants’ arguments, and in overall agreement with the judge’s analysis. Throughout Mr Holgate’s sustained and detailed argument, which I have deliberately set out in considerable detail, I found myself inexorably and repeatedly coming back to two points. The first was that this is an application for judicial review of a decision made by a specialist body, and thus only susceptible to challenge on the limited grounds provided by judicial review. The second was the point made by Mr John Howell QC and Miss Jane Collier in paragraph 52 of their skeleton argument on behalf of English Nature namely: -

The only answer to this question provided by the appellants was that this had been English Nature’s view in 1994, and they had been wrong to change it in 2000. But once it is established, as the judge found (and, in my judgment, as the evidence manifestly bears out) that English Nature’s change of stance had been adopted after careful consideration and was rational, then the simple fact of the matter is that on the post 2000 criteria, the Breckland Farmland manifestly is an SSSI for the reason Mr. Howell and Miss Collier identify.

The rest, in my judgment, follows inexorably. English Nature reasonably formed the opinion that the area of land was of special interest by reason of its internationally important population of stone-curlew. This led to the duty to notify under section 28(1) of the 1981 Act. There is nothing in the process of consultation, or in English Nature’s consideration of the objections, to which objection can be taken. The process is thus rational and procedurally fair, and at the end of it, having listened to and considered the objections, English Nature remained of the same opinion and confirmed the notification. At this level, the case, it seems to me, is very simple, and is a straightforward application of English Nature’s statutory responsibilities to the facts of a particular case.

Speaking for myself, I do not think that there is anything in the point that the judge misdirected himself by criticising the appellants for not mounting a formal challenge to the decision to notify. I tend to agree with the appellants that a challenge to that decision might well, within the structure imposed by section 28 of the 1981 Act have been met with the judicial retort that it was premature, and that the appellants should wait until confirmation (if it occurred) before mounting a challenge. I regard the consultation / objection process as being of considerable importance. That process had to be properly carried out. But the resultant question, in my judgment, is unaffected. Was the Decision one which it was properly open to English Nature to make on all the information available to them? In my judgment, the answer to that question is plainly yes.

However careful and sophisticated the argument to the contrary, it seems to me that the words contained in section 28(1) of the 1981 Act are very clear. The Breckland Farmland is an area of land, and on any construction of the language it is “of special interest by reason of its … fauna” (its population of stone-curlew). The fact that it is a potential SPA in my judgment simply serves to underline the point.

The 1981 Act does not define the size of an SSSI. The words used are deliberately vague: “any area of land”. Mr. Howell pointed out that the Breckland Farmland SSSI was not the largest SSSI in the United Kingdom, and to my mind, provided the designation of the site is directly related to the fauna by reason of which it is of special interest, there is no reason why is should not comprise 13,335.70 hectares or even more.

It is quite clear from the European legislation and the Habitat Regulations 1994 that an area of land may be at one and the same time an SPA and an SSSI. Doubtless it can also be, at the same time, part of Natura 2000 and various other things beside. Absent any attack on the lawfulness of the scheme contained within section 28 of the 1981 Act for identifying and confirming SSSIs, I do not, speaking for myself, find the arguments about the nature and purpose of other designations particularly helpful. Discussion of the relative concepts of preservation, conservation, and enhancement, do not, in my judgment, advance the argument.

If English Nature were correct to notify, were they right to confirm? The judge took the view that once notification had occurred, English Nature had, in effect, no discretion to refuse to confirm if they maintained their opinion, after hearing objections, that the site was still an SSSI. But did that mean, for example, that English Nature could have no regard to the consequences of confirmation, notably in the context of Article 1 of the First Protocol? This is the point which troubled Carnwath LJ.

Although I do not disagree with the judge’s construction of section 28 of the 1981 Act, I would approach the analysis from a slightly different direction. English Nature are a creation of Statute, and derive their powers from statute. Section 28(5) of the 1981 Act sets out the powers English Nature have in this context. They can (1) withdraw the notification or (2) confirm the notification (with or without modifications) or do nothing for nine months, at which point, as the judge pointed out, the original notification ceases to have any effect, and the duty to notify revives, provided English Nature remain of the same mind..

What, in my judgment, is of critical importance, and gives the statutory procedure meaning is the process whereby English Nature satisfy themselves whether or not their original identification of the land as an SSSI remains correct. That process requires investigation, consultation and the consideration and analysis of objections. Any suggestion that remaining of the same opinion involves no expenditure of physical or intellectual energy, or that confirmation is an automatic rubber stamp, is plainly wrong. Thus I would prefer to construe section 28(5) of the 1981 Act as giving rise to the exercise of a power not to confirm, which is to be exercised in accordance with the conclusion reached as a result of the outcome of a genuine, open-minded consultation / investigation process. Once the section 28(1) factors and the appropriateness of the matters specified under section 28(4) have been reconsidered, there is only a limited basis upon which it would be open to English Nature to refuse to confirm a notification under section 28(5).

It is for these reasons that I regard the consultation / investigative process post notification as so important, and why I set it out in such detail. Were that process defective in any way – were, for example, improper or irrelevant considerations to have entered into and tainted the decision making process, the decision could undoubtedly be quashed, and English Nature directed to reconsider. But on the facts presented to English Nature; the content of the objections put forward at the meeting on 11 July 2001; and on the basis of the record of the meeting, which demonstrates the care which was taken over the decision, I am wholly satisfied that in this respect the decision to confirm the notification was properly taken and is challenge proof.

The judge, in my view, was manifestly correct to reject challenges based on English Nature giving in to Government pressure or misdirecting themselves as to the law to be applied. The reasons for the change of policy in 2000 are transparent. There was plainly a debate with the DETR and an acknowledgement by English Nature of the DETR policy. Government Departments are sometimes right: a change of stance to bring oneself in line with Government policy on a particular issue is not automatically to be equated with giving in to government pressure. The government regarded SSSI status as necessary to underpin SPAs. But English Nature could only go along with that policy if the area of land they were being invited to designate as SSSI fulfilled the SSSI criteria as English Nature determined them to be.

Initially, as the evidence makes clear English Nature withheld SSSI status from sites such as Bramshill and the Breckland Farmland for the reasons explained by Dr. Brown and set out in paragraphs 39 to 40 above. The Government ‘s view was if land was sufficiently important to be an SPA it must qualify as SSSI. For English Nature, after a considered and informed internal debate, to accept that point of view in relation to the three sites in issue, and the Breckland Farmland in particular, seems to be (a) perfectly rational and (b) incapable of being designated as improperly giving in to Government pressure.

Furthermore, as the extracts from the discussion on 11 July 2001 demonstrate, the Council of English Nature gave itself clear, cogent and (in my judgment) correct advice on the point. It did not confirm the SSSI on the basis that that was what the government wanted it to do. It had to (and did) make up its mind, applying the statutory criteria, whether or not, in its judgment, Breckland Farmland was an SSSI. The Council decided, having heard the objections, having considered the matter carefully, and having applied its independent expertise, that it was. That was a decision they were plainly entitled to reach, and like the judge, I do not think (subject to the argument on Article 1 of the First Protocol) that it is open to a court exercising the powers of judicial review to interfere with it.

This leaves the argument under Article 1 of the First Protocol. I have set out fully the objections put forward at the meeting of the Council of English Nature on 11 July 2001. In so far as they go to the lawfulness of the decision to confirm, the highest the case is put is that SSSI status is not necessary to protect the stone-curlew and simply imposes a further and unnecessary layer of bureaucracy. That does not seem to me, with respect, to be a reason for saying that the Breckland Farmland is not an SSSI. And in so far as the objections went to the consequences of designation, English Nature had, as Mr. Falcon recognised, done a lot of work to minimise the effect that an SSSI would have on the agricultural operation. His point about the inclusion of fields where there were no records of birds having nested likewise does not go to the overall lawfulness of designation.

Speaking for myself, I would accept that if designation as an SSSI could be shown to have a disproportionate impact on the appellants, and one which English Nature had failed to take into account, that failure could found an argument for judicial review of the decision. This, as I understand it is essentially the basis of the Article 1 First Protocol argument. However, this argument in my judgment fails on the facts.

I have to say that on the Article 1 of the First Protocol point, I find the objections voiced at the meeting surprisingly weak. The evidence about land values was equivocal. There was no complaint about the OLDs. When, as I have just indicated, Mr Falcon was asked about the restraints on landowners’ activities, he recognised the work which had been done by English Nature to minimise the effect that an SSSI would have on the agricultural operation, but was unable otherwise to be specific – see the answer I have recorded at paragraph 67 above. Indeed, that paragraph, and the reference to SSSI status as an unwanted bureaucratic shackle seems to sum up the objectors’ case.

Equally surprisingly, to my mind at least, the weakness of the Article 1 First Protocol argument on the facts persisted throughout Mr. Holgate’s submissions. In the absence of an attack on the lawfulness of the scheme itself, I struggled to ascertain why it was that the imposition of an SSSI on the appellants was so disproportionate as to render the decision to confirm unlawful. A bare assertion that the SSSI serves no useful purpose is not, in my judgment, a reason of itself for refusing to confirm.

The three examples given of disproportionate impact were (1) restrictions all the year round when the stone-curlew are only present from March to October; (2) additional consultation requirements; and (3) the effect of designation on land values. None of these, in my judgment, on the evidence and in the absence of greater detail comes anywhere near a disproportionate interference with the appellants’ Article 1 First Protocol rights, particularly as English Nature were at pains to preserve the agricultural use of the land.

In these circumstances, it seems to me that consideration of the Birds and Habitats Directives adds nothing to the appellants’ argument. The government no doubt prefers the underpinning of an SPA with a SSSI because of the additional powers of enforcement the latter provides: no doubt the appellants object for the same reason. But neither consideration, in my judgment, affects the issue which English Nature had to address.

In these circumstances, it seems to me that the judge was right to decide that the change of policy in 2000 in no sense vitiated the decision made by English Nature in 2001. What matters above all, however, is that when it comes to confirmation of the notification, the Council of English Nature should direct its mind properly to the statutory provisions and to the Guidelines and express itself independent of Government policy in so far as Government policy conflicts with the terms of section 28. That, it seems to me, is precisely what the Council of English Nature did at the meeting in July 2001, and in my judgment its decision making process cannot be criticised.

The judge was of the view that the issue of proportionality only arose if the scheme itself was not HRA 1998 compliant. That was his short answer to the proportionality point. I do not necessarily disagree with him, but equally do not need to go that far. In practical terms and on the facts, all that SSSI status brought with it was the need to consult English Nature before any particular activity was engaged in, and in so far as there are restrictions on particular activities, no evidence seems to me to have been placed before the Council of English Nature – or has been put before this court - which would render such restrictions disproportionate.

If there was no irrationality in the decision making process, there was manifestly no procedural irregularity in the process of making the Decision. I find myself, therefore, at the end of this very long judgment where, tentatively, I found myself at the beginning. English Nature was entitled both to notify and confirm the Breckland Farmland as an SSSI. The judge was right to hold that English Nature had not erred in law by taking account of immaterial considerations in deciding to confirm the notification. The notification was lawful within the scheme created by section 28 of the 1981 Act. There was no procedural irregularity, and, on the facts, no disproportionate impact on the appellants’ Article 1 First Protocol rights.

The Decision cannot, accordingly, be challenged on any of the grounds advanced by the appellants. In its fundamentals this is a simple case, and the judge was right.

I would, accordingly, dismiss this appeal.

I agree

I also agree.