Bown, R (on the application of) v Secretary of State for Transport

MR JUSTICE COLLINS: The claimant challenges decisions by the defendant to confirm compulsory purchase orders and orders made under the Highways Act 1980 in relation to a scheme for what is known as the Western Bypass of Barnstaple in North Devon. The real point at issue concerns the construction of a bridge over the estuary of the Taw, which it is said will breach two EC Directives, namely, 79/409 on the Conservation of Wild Birds and 92/43 on the Conservation of Natural Habitats.

On 29 November 1999 Devon County Council, the promoters of the bypass, granted itself the necessary planning permission to enable the bypass to be constructed. That was subject to a number of conditions, some of which were concerned with protection of the environment and of the habitat. Where the new bridge crosses it, the estuary of the River Taw is designated a site of special scientific interest ("SSSI") pursuant to Part 2 of the Wildlife and Countryside Act 1981.

The relevant conditions in the planning permission were Nos.5 and 8. 5, so far as material, reads under the heading "Ecological monitoring":

Condition 8 is headed "Protection of the Salt Marsh". It reads:

The defendant appointed an inspector to hold a public inquiry and to report to him. The inquiry was held between 19 and 29 June 2001. There were no statutory objectors to any of the orders, which has led Mr Perera, on behalf of the claimant, to accept that this claim could properly concentrate on what has been described as the "bridge order". If the construction of the bridge is not permitted, the whole bypass scheme will come to nought.

The Inspector's report was published on 5 October 2001. On 17 April 2002 the defendant accepted all the Inspector's recommendations and approved the orders, subject to some minor, and in the context of this claim, immaterial modifications. This claim was lodged on 12 June 2002. There were a number of objectors at the inquiry but the principal objector was the North Devon Friends of the Earth. The claimant made his own objections and gave evidence. He lives near South Molton on the Taw River and is an active member of the Green Party. Indeed, he stood as candidate for that party in the North Devon constituency. Apart from his own particular objections he also supported the case being presented by Friends of the Earth.

Two grounds have been argued before me by Mr Perera. First, he submits that in accordance with the Wild Birds Directive this estuary, and in particular the area included within the SSSI, should have been designated a special protection area ("SPA"). The failure to do so means that any development such as the bridge is unlawful, because the European Court of Justice has made it clear that the regime imposed by the Directive in order to protect wild birds applies in all its rigour where national governments have failed to comply with their obligations.

Second, Mr Perera submits that the regulations enacted by the United Kingdom to implement the Habitat Directive, that is to say the Conservation (Natural Habitats etc) Regulations 1994 provide that otters, which are a protected species, must not be disturbed; to do so is a criminal offence unless a licence is obtained from the appropriate authority, which is the relevant minister in DEFRA. The regulation specifies the circumstances in which such a licence can be granted, and neither the Inspector nor the defendant has had proper, or indeed any, regard to those circumstances. That failure means that the decision is therefore unlawful.

The Wild Birds Directive required Member States to bring into force measures to implement it within two years of its notification, thus by April 1981. One of its purposes was to preserve, maintain or restore a sufficient diversity of area of habitat to conserve all species of wild birds, with particular focus on those under pressure or declining in numbers and those which are regarded as endangered species.

Article 4 of the Wild Birds Directive (which is for our purposes the most material of the Articles) provides as follows:

The estuary is particularly important because it attracts a considerable number of wintering birds. Species which are in Annex I include golden plover. Before the Inspector Friends of the Earth contended that the estuary should have been designated an SPA. It was submitted that the area fulfilled the necessary criteria. Following the conclusion of the inquiry but before the Inspector reported, their solicitors, under cover of a letter of 11 September 2001, sent to the Inspector a copy of a report from the Nature Conservancy Council ("NCC") dated 1990. This report is entitled "Protecting internationally important bird sites", and it is said to be a review of the EEC Special Protection Area Network in Great Britain. The purposes of the review are set out and include (in paragraph 2.3) that the UK Government had requested the NCC to examine the extent to which the presently proposed suite of SPAs could fulfil its commitment under the Directive. So far as selection of sites is concerned this is said (in paragraph 4.2):

Since then there has come to the attention of those representing the claimant a further document of 1992 which was produced by the RSPB and English Nature, and was headed "Important Bird Areas in the United Kingdom". This document is said to include sites designated or identified for designation as special protection areas under the Wild Birds Directive. The report is produced under the aegis of the RSPB and English Nature. In its preface this is stated:

In 1994 the Government produced Planning Policy Guidance No.9. That was a policy which dealt with nature conservation. It was said that it took into account the implementation of the Habitats Directive, and identified potential sites of international importance. It is of course no coincidence that it was produced at the same time (essentially) as the enactment of the Conservation (Natural Habitats etc) Regulations 1994. It also set out as one of the key international obligations the Wild Birds Directive. Indeed both that and the Habitat Directive were contained in annexes to PPG9. In paragraphs 44 to 47 under the heading "Protection of Species" there is reference to the Wildlife and Countryside Act 1981 (paragraph 44); the protection and the prohibition of the killing or injuring of animals (paragraph 45); and to the creation of an offence of deliberately injuring or taking or disturbing listed animal species. In paragraph 47 we find this:

That was the material that was before the Inspector and indeed before the Secretary of State when he reached his decision. Since then further information has come to the attention of the claimant's solicitors. In particular, he has discovered some answers to questions in Hansard, first in 1988, when in answer to a question to the then Secretary of State for the Environment whether he would list those United Kingdom sites which qualify as important bird areas ("IBAs") under the Birds Directive indicating those listed as special protection areas, it was said that the sites meeting the criteria for designation included the Taw-Torridge Estuary, although it had not in fact been designated an SPA at that stage. A similar question in 1991 received an identical answer. In addition, there is a publication of 2000 headed "Important Bird Areas in Europe Priority Sites for Conservation". Northern Europe (Volume 1) is said to have the Royal Society for the Protection of Birds, as a sponsor. That document contains the criteria which are said to be appropriate for identifying important bird areas. It is said that 20 criteria have been developed allowing identification of IBAs based on the site's international importance for threatened bird species, congregatory bird species, assemblages of restricted-range bird species and assemblages of what are described as biome-restricted bird species. The summary of the 20 criteria is divided into a number of categories. The lowest of those is C7, which is described as "Other ornithological criteria". The relevant criterion is:

There was also before the Inspector a letter of 4 April 2001 which had been written by English Nature to the Chair of the North Devon Friends of the Earth. That dealt with a question which had been asked: "On what criteria the estuary was proposed for candidate SPA status?" The letter reads as follows:

The Taw-Torridge Estuary is not included in the sites regarded as appropriate for SPA designation according to the guidelines there set out. Indeed that is obvious, because it seems that the only species which has more than 1% of Great Britain population is the curlew. That is not a bird listed in Annex I; although it may have two percent of the population of Great Britain it does not exceed 1% of the bio-geographical population of a regularly recurring migratory species. It follows that the situation at the time the matter came before the Secretary of State was, and still is, that the Taw-Torridge Estuary does not meet the requirements according to the guidelines which have been adopted by the relevant government ministry following the report provided by JNCC, which is the body responsible for giving advice and for undertaking research, which it has done in conjunction with English Nature.

The Inspector's conclusions on the issue in the light of the material before him is contained in paragraph 3.27 of his report, in which he says this:

So far as the extra material is concerned that has been put before me on the basis that it must be assumed to have been available to the Secretary of State since it was material which quite clearly was provided to the relevant government department in order to ensure compliance with the obligations under the relevant Directives. Mr Mould has not sought to argue that it cannot be taken into account by me in considering whether there has indeed been an error in the approach adopted by the defendant. What the Secretary of State did was to accept the Inspector's reasoning. On this aspect he states (in paragraph 26) that he considered that there was nothing in the post-inquiry correspondence that persuaded him that there was a likelihood that the Taw-Torridge Estuary was to be designated as an SPA, and he agreed that there was no evidence of a breach of the UK's obligations under Council Directives.

Mr Perera has submitted that the existence of the IBA 1992 report together with the 1990 report led to a presumption that the Taw-Torridge Estuary should have been designated an SPA, and it was only if there was significant scientific evidence to the contrary that the Government could persuade me that the lack of designation was proper. He submits that the Directive came into force in 1981, there was a recommendation in 1992, and so there should then have been a designation. In support of that submission he has referred me to a number of decisions of the European Court of Justice. The first in date order is Commission v Spain [1993] ECR I-4221. That case concerned the construction of a road over the Santoña marshes in Northern Spain. That was an area of very great importance for a considerable number of bird species listed in Annex I, particularly, it would seem, Spoonbill. In paragraph 15 of the judgment of the court (page I-4276) this is said:

"The Commission's view"

The next case, Commission v Netherlands [1998] ECR I-3031, concerned wetlands in the Netherlands. The issue was that the Dutch authorities had apparently for no good reason failed to designate part of an area which clearly on the face of it qualified. I have been referred to paragraph 50 in the Advocate-General's opinion in which he says this:

Finally, I refer briefly to Commission v France [2000] ECR I-10799. That was a case involving an area which was important for Annex I species, particularly Bonnelli's eagle. In paragraph 25 of his judgment the court stated:

The reason for that was that the national state could not derive an advantage from its failure to comply with a community obligation. Accordingly, if it was right that the Tae estuary should have been designated an SPA, the breach would not be lawful because quite clearly it would create a disturbance to the birds which the SPA was designed to protect.

Mr Mould did not accept the use of the word "presumption", but accepted, as indeed was correct from the decisions which I have cited, that if a site was in IBA89 and there were no scientific or other material produced to counteract that, it would prevail. But here he submits there has been ample material presented which shows that the Taw-Torridge Estuary does not qualify under the relevant criteria, whatever may have been believed to be the position in 1989. It seems that the position in 1989 was to a high extent influenced by the suggestion that more than one per cent of the British population of golden plover, which were and are an Annex I species, were wintering at the estuary. That has dropped out of the picture since. It is not regarded on the counts that have been referred to in the evidence as a reliable figure. Thus, there are no reasons to suppose that the estuary would qualify under the relevant criteria which were used in IBA89. However even if that is not right the fact is that they do not qualify under the criteria used by those advising the Secretary of State, criteria which were quite clearly referred to in the letter of 4 April produced by the claimants.

In those circumstances it is clear that there is the necessary scientific material which indicates that this site is not one which falls to be designated as an SPA, and that the Secretary of State and the Inspector were correct in their approach in the report and in the decision respectively. That being so, the claim under ground 1 must fail.

I turn to ground 2. The Habitats Directive in Article 12 requires Member States to take requisite action to establish the strict protection for the animal species listed in Annex 4 (which include otters) prohibiting all forms of deliberate capture or killing and, more importantly, deliberate disturbance of species, particularly during the periods of breeding and migration.

The relevant domestic legislation is in the Conservation (Natural Habitats etc) Regulations 1994. Regulation 39 provides that it is an offence, amongst other things, deliberately to disturb a wild animal of a European protected species.

Regulation 44 provides as follows:

Mr Perera points out that it is accepted, and indeed the evidence makes it clear, that it is not possible to say that there will be no disturbance to otters as a result of the construction of the bridge; all that the mitigation measures can do is to attempt to keep such disturbance to a minimum. Accordingly if the order is confirmed there will be the probability, indeed he submits the virtual certainty, of a breach of Regulation 39 unless a licence is obtained. The licence could only be obtained if the Regulation 44 criteria are met, and so it was incumbent upon the Inspector and upon the Secretary of State to have regard to those criteria in deciding whether the order should be confirmed. There is no mention of Regulation 44, no explicit reference to those criteria, and indeed the findings of the Inspector do not meet those criterion. Thus, submits Mr Perera, the disturbance of otters must prevent this bridge being constructed.

It is in my view clear that the question of disturbance and the question of whether the regulations are likely to be contravened is a matter which ought to be taken into account. There has to be a balance between the need for a bypass at that place and the effect of the construction of that bypass upon otters. Clearly a balance has to be struck in accordance with the approach of the Regulations.

The Inspector's overall conclusion on the Bridge Order is contained in paragraph 7.53 of his report in these words:

Mr Perera submits that the Inspector there is failing to reach a conclusion about whether there would be a disturbance to otters and that that was not a permissible approach; he should have reached such a conclusion and if he had he could only have found that there was indeed likely to be a disturbance. In my view that is a misreading of what the Inspector said. When he says it "may or may not be the case now", he was clearly referring to the situation absent any mitigating procedures; that is to say the evidence before him, and it was evidence contained at least in part in the environmental statement put before him, was not sufficient to enable him to find as a fact that there were or were not resting places for otters which were likely to be affected by the construction of the bridge. What he is clearly saying is that the mitigation measures required in the conditions attached to the planning permission were such as would in his view remove the threat before construction work began because there would have to be, among other things as we have seen from condition 5, a mitigation scheme which had to be submitted and approved, addressing, among other things, the effect on otters. It is true that the reason refers to adequate recovery of habitat species during and after development and prompt action to repudiate any failure to recover. Nevertheless it is plain that the purpose behind it was equally to prevent there being any adverse effect, so far as possible, upon the otter population in the immediate area.

It seems to me that the Inspector in the passage in 7.49 was reaching a conclusion which on the evidence he was entitled to reach, namely, whether or not there was in the state of current knowledge likely to be a disturbance, once the full information obtained in mitigation was in place, then there was no risk to otter species. Indeed it is not, as I understand it, suggested that there is likely to be a long-term risk once the bridge is constructed and the disturbance is removed, albeit of course there will be some degree of noise pollution resulting from use of the bridge. In any event the defendant is not concerned with the licensing. It is plain that it is necessary for consideration to be given to matters which are relevant to the licensing authority, that is to say DEFRA. Indeed I note that there is a recent consultation paper which suggests that it would be desirable and the Government intends to legislate so that the question of licensing can be considered on planning applications and it will not be necessary for a separate licence to be obtained. That clearly is sensible.

So far as the criteria are concerned within the meaning of Regulation 44, it seems to me that the Inspector considered the relevant matters and reached conclusions which will be of the greatest assistance to the licensing authority should it be considered (as it probably will) desirable that a licence be sought under Regulation 44 of the Regulations. But the fact, if it be a fact, that the precise terms of Regulation 44(3) were not spelt out is nothing to the point; it is not a matter for the defendant. He was, in my judgment, entitled to approve this order in the belief, which he must have had, that a licence if applied for would be likely to be granted. It obviously would have been pointless for him to approve the order if he was not persuaded that it could meet the necessary criteria. The whole of the Inspector's findings make it clear that it was likely to reach those criteria.

The defendant refers to the Council's response to a submission made that otter movements would be adversely affected by disturbance during construction. There are various mitigation measures that are there set out. They are referred to in detail in paragraph 21 of the Secretary of State's decision and it is unnecessary for me to read them into this already over-long judgment. What the Secretary of State concluded was that he was satisfied that the mitigation measures proposed by the Council to reduce the impact of the scheme on the otter population were adequate. He noted that the Council would ensure that all necessary steps would be taken to ensure that any disturbance to the otter population within the Taw-Torridge SSSI was minimum. When one is balancing within Article 4(4) the effect on otters against the need for a particular development, it is inevitable that there may be some degree of disturbance to the otters. The question is whether the extent of that disturbance is such that it is outweighed by the need in question. Clearly the requirement that any disturbance is kept to a minimum as one of the conditions is appropriate. That is what has happened here. It was open to the defendant to find that the extent of any disturbance was likely to be so small as a result of the measures to be taken so as not to amount to a good reason for refusing to include the order. Accordingly, the second ground relied on also fails and this claim is dismissed.

MR BULEY: My Lord, I do have an application for costs. Could I just take instructions; I have not had a chance to do that. (After a pause) My Lord, I have an order for costs.

MR JUSTICE COLLINS: I know that there is in existence an assessment which I have not yet seen.

MR BULEY: My Lord, a figure has been agreed of £2,268.75.

MR JUSTICE COLLINS: I do not imagine, Mr Perera, having regard to what I see in your figure that you are likely to have an enormous amount to say against that as a figure. I am dealing now just with the figure rather than any matter of principle. Are there any objections?

MR PERERA: I have no objection to the figure. My Lord, there are two issues in relation to the order. One is the form of it, because for some of the proceedings there has been a legal aid certificate in force, but not all. There was not yesterday and there is not today.

MR JUSTICE COLLINS: In that case I would say detailed assessment of all costs. I have to for legal aid, because there is a question as to deciding which bits are covered by which aspect. Unless the summary assessment is limited only to the period during which legal aid was not in force.

MR PERERA: I am told we are prepared to agree yesterday's and today's costs, because that is really the ---

MR JUSTICE COLLINS: But it does not stop you agreeing, because the order that I would make is subject to legal aid assessment. There is nothing to stop you so far as the non-legal aid part is concerned agreeing an appropriate figure. I have not checked the regulations and someone will refer me to them if necessary, but I am not permitted, am I, to make summary assessment in relation to legal aid. I think there is a period during which legal aid applied, but I think I am in difficulty outside the -- but I do not think the assessment does ---

MR BULEY: I have thought, but I may be wrong, this was only in respect of ---

MR JUSTICE COLLINS: If it is only in respect of post-legal aid then it may be that I can make the necessary order.

MR BULEY: My Lord, my understanding is that the figure I have given you is only in relation to periods in which the legal aid certificate ---

MR JUSTICE COLLINS: That is only the non-legal aid period.

MR BULEY: Exactly. That is my understanding, my Lord, but I do not know if -- so in other words that is something you can make an order on.

MR JUSTICE COLLINS: If it was right to award costs throughout - if - then I would say I summarily assess at the figure you have given me, £2,268.75, in relation to costs which fell outside the time when there was legal aid, but there must be detailed assessment covering time when there was legal aid in force.

MR PERERA: I am told that the form of order should refer to section 11 of the Access to Justice Act.

MR JUSTICE COLLINS: You can be responsible for that if the need arises. Unless I am told I cannot do that.

MR BULEY: My Lord, I think my learned friend is right that in respect of anything that falls outside of the period it needs to be subject to a determination of the claimant's liability to pay pursuant to section 11 of the Access to Justice Act.

MR JUSTICE COLLINS: That is the order I will make in principle, subject to any other argument. Mr Perera, I think you said you had two points.

MR PERERA: Mr LOrd, that is point 1. Point 2 is that your Lordship has in reaching your judgment relied to some extent on the SPA review as a review, one which explains the letter.

MR JUSTICE COLLINS: It was referred to in the letter but it was not actually produced.

MR PERERA: Yes, but in your Lordship's words the guidelines would remain obscure were it not for the production of that document, and of course the ECJ says it is substantial sight of the evidence which is required to rebut a presumption. That is a document as you observed yesterday, it is unfortunate the Secretary of State had not, it being a Government document, it came to my attention towards the end of last week and we produced it because it was relevant to ---

MR JUSTICE COLLINS: But it was not determinative. I would still have found the same based on the April letter.

MR PERERA: I think if that is the case then I cannot pursue the application I am pursuing.

MR JUSTICE COLLINS: I hope I made that clear. It certainly helped, but it was that letter which made it plain that the position was as I have indicated.

MR PERERA: If that is the case I cannot pursue the application.

MR JUSTICE COLLINS: The document helped to explain the significance of what is stated in that letter. It did not remove the effect of what was stated.

MR PERERA: You understand the application I was going to make.

MR JUSTICE COLLINS: I do understand the application and I am bound to say I am somewhat sympathetic, but I do not think in the end I could really (inaudible) anything in that respect.

MR PERERA: That being the case that forces me to apply for permission to appeal, which I understand ---

MR JUSTICE COLLINS: I do not think this is an appropriate case for me to give permission. I indicated that yesterday. It seems to me that if you want to pursue this you must go to the Court of Appeal. Essentially I do not think that this is a case which has any real prospect of success.

MR PERERA: Clearly your view.

MR JUSTICE COLLINS: Not only because I found against you. I hope I can recognise when there is a valid ground. There is not one here. Thank you very much for your help. The order will be as I indicated in relation to costs.