Boggis, R (on the application of) v Natural England & Anor

This is a renewed application for permission for judicial review. On 14 September 2007 Mr Nicholas Blake QC, as he then was, sitting as a deputy High Court judge, granted permission for judicial review on the application of Mr Boggis and another against Natural England, of whose decision judicial review is sought.

Natural England had made a decision in 2006 designating land as a Site of Special Scientific Interest (“SSSI”). On the inter partes hearing of the application for permission for judicial review of the decision Mr Blake gave permission on Ground A, but not on the remaining grounds. The applicants were dissatisfied with the decision and sought permission to appeal against his limiting the grounds to the ultra vires Ground A. They do not seek to resurrect all of the other grounds. They simply say that he should have granted permission on Ground G as well as Ground A.

Ground G relates to contentions by the applicants that the notice and confirmation of the SSSI by Natural England did not comply with the provisions of the relevant parts of EC law, in particular the 1994 Habitat Regulations. A point is taken that the regulations applied because this was “a plan or project” within the meaning of the Habitat Regulations. It was therefore a matter on which Natural England were under a duty to consider whether there should be an appropriate assessment and if so, to undertake such an assessment.

When the papers were put before me, I refused permission on the ground that a real prospect of success had not been made out on the arguments under Ground G in relation to the directive 92/43/EEC and the 1994 Habitat Regulations. In refusing the ground I was particularly influenced by the ruling of the judge in paragraph 10 of his judgment. In that paragraph he accepted a submission made on behalf of Natural England. He referred in paragraph 9 to the argument based on the need for an appropriate assessment as required by the European Directive because it was said by the applicants that this was “a plan or project” under the Directive. He went on to say in paragraph 10:

“I do not consider that that is a seriously arguable proposition because, as the defendants have pointed out, designation does not prevent absolutely the SSD [The SSD are the sacrificial soft sea defences which are of particular concern to the applicants who are affected by the erosion of the coast in this area].”

He went on:

“It simply requires that permission is sought for maintaining the SSD. If permission is refused by the defendants, the matter can go to the Secretary of State. A combination of factors as to the impact of the refusal of specific works as well as any impact upon human rights and the rights of the home can therefore be considered.”

He concluded at paragraph 11 that those submissions by the defendants were well-founded. He therefore rejected the grounds based on the Directive and on allegations that the relevant considerations had not been taken into account with regard to human rights.

The argument, which has been elaborated in relation to some further documents, to a decision of the European Court and to another document in which an application for consent was made and turned down, has made it clear that there is a reasonable argument being advanced by the claimants on the European Union regulation point.

I am satisfied that this is an appropriate case in which we should grant permission. The permission will not be permission to appeal since that would just lead to further, unnecessary expense and delay in this case and the matter having to go forward to the full court. The tests for granting permission to appeal and for granting permission for judicial review are, in substance, similar. If we are satisfied that there are real prospects of success on the appeal, that is good enough for giving permission for judicial review on this ground. Under Part 52.15 it is expressly provided in relation to judicial review appeals that, on an application to apply for judicial review which has been refused in the High Court, the Court of Appeal may, instead of giving permission to appeal, give permission to apply for judicial review.

As I have already explained, Mr Blake gave permission for judicial review on Ground A, but he refused it on, among others, Ground G, the one other ground that the claimants wish to pursue. I would be in favour of granting permission on Ground G for the brief reasons already mentioned, in addition to which I would also draw attention to a point which was raised in argument by Munby J, based on paragraphs 16 and 17 of the amended skeleton argument. In referring to the European background of the argument under Ground G it was stated that the Court of Appeal would be acting as the court of last instance in deciding whether or not to give permission. If it refused to give permission there would be no appeal from that and so, unless it was satisfied that the matter was against the claimants, the court was under an obligation either to grant permission or, before determining the issue, refer the matter to the European Court of Justice under Article 234 of the treaty.

A citation was made from a judgment of Woolf LJ, as he then, was in the 1991 case of R v HM Customs and Excise ex parte Davies Products (Liverpool) Ltd (unreported) to this effect:

“Where there is a case which has a European element, which conceivably could require the parties to consider a reference to Europe, it would be wrong for the High Court to refuse the applicants the opportunity of obtaining a reference, if that is something to which they are entitled, by failing to give them leave to apply for judicial review.”

This is not a case in which I, speaking for myself, could say I am satisfied that the matters relied upon by the claimants are acte clair against them on Ground G. That is an additional reason why we should grant permission on Ground G of the judicial review.

I should add that the arguments in this renewed application have become more focused than they were on the papers before Mr Blake, first as a result of compliance with the requirement producing a pre-hearing statement, which considerably shortens the grounds of claim and the skeleton argument in order to identify the key points on which this argument is based. As a result of the discussion at the oral hearing, this has been yet further refined to pinpoint more clearly than appeared to me on the papers when I considered them the essential arguments of European Union law.

I am satisfied, having raised the matter with Mr Jones, who appears for the applicants, that the European points are distinct from the vires point under Ground A. We were assured by him that the time that it would take to argue the European points would not lengthen the hearing of the substantive judicial review application beyond the estimated time of one day. For all those reasons I would be in favour of giving permission under Part 52.15.3 for Ground G to be a ground in the substantive judicial review application.

I agree with my Lord for the reasons he has given and I would add only this. Points A and G, on which alone the matter now proceeds, are neither of them of their nature points which are going to be affected by the evidence. They are both short points. I draw attention to those matters for this reason: the existing bundle contains much material referable, primarily or exclusively, to the now defunct points B to F. The bundle would do with drastic pruning so that the judge in the Administrative Court who must consider points A and G alone, does not have to waste his or her time and thereby cause delay to other litigants by reading a large amount of now redundant material.

It seems to me that the parties collectively have a responsibility now to agree what I emphasise should in my view be a drastically reduced bundle, just as they have an obligation to agree a reading list so that the judge in the Administrative Court can know precisely what he or she is or is not expected to read, and just as they should also produce an agreed bundle of authorities. If the points are as short as Mr Jones would have us accept they are, and if the points are capable of decision, depending upon the judge, within half a day or one day, I do not believe that the court is required to consider two lever arch files of material.