Newsum & Ors v Welsh Assembly Government

The claimants, the trustees of the estate of the Duke of Westminster, seek review of a decision of the defendant, the Welsh Assembly Government, of 14February 2003 refusing the claimants’ application for a licence under regulation 44(2)(e) Conservation (Natural Habitats etc) Regulations 1994. The claimants sought and were refused a licence to ‘translocate’ a population of great crested newts from a quarry to a specially prepared site in the same region. Permission to proceed was granted by the single judge on 23 May 2003. The claim raises issues of construction and the proper application of regulation 44(2)(e).

The origin of the claim is as follows.

The claimant trustees are the freehold owner of the greater part of Halkyn Common in Flintshire, some 2.5 kilometres to the south of Holywell. Over the common there are rights of pasture, freestone, turbary and estover. Situated within the Common is Pen-yr-Henblas Quarry (hereafter called Pen-yr-Henblas, the quarry or the donor site). The quarry has in the past been a source of chertstone and limestone. The claimants wish to resume quarrying at Pen-yr-Henblas. Over the relevant part of the donor site the claimant owns the mineral rights subject to rights of common. The claimants are also the freehold owner of Wern-y-Gaer some 4.4 kilometres to the south east (the receptor site) subject to mineral rights in favour of the Crown and rights of common.

Pen-yr-Henblas has the benefit of planning permissions of 30 March 1954 and 12 August 1966 granting permission for quarrying subject to conditions.

On 26January 1996 Clwyd County Council gave notice under paragraphs 3 and 8, Schedule 13 to the Environment Act 1995 listing Pen-yr-Henblas as an ‘active Phase 1’ site. The purpose of Schedule 13 was to enable a scheme of review of old mining permissions (‘ROMP’) granted after 30 June 1948 and, in the main, before 21 February 1982. An obligation was imposed by paragraph 9 upon the owner to make application to the mineral planning authority for the imposition of modern conditions to which the permission would be subject. If the owner failed to make application in time the planning permission would lapse (paragraph 12).

The claimant made application in due time and submitted conditions to Flintshire County Council. At paragraph 4.8 the claimant proposed:

“Ecology-Due to the ecological interest in the site, it is proposed that no working of the site will take place until a scheme for the dealing with the various ecological issues has been approved by the Mineral Planning Authority. Any scheme dealing with ecological issues will be designed in consultation with the Countryside Council for Wales.”

On 13 November 1998 the Council required, under paragraph 9(10) of Schedule 13, further details of the proposal. In particular, the Council required sight of ecological and geological surveys. No further information has been provided and no further discussion has taken place. Accordingly, the period of 3 months within which the Council was required to notify its decision is held in abeyance until the information is provided (paragraph 9(9) and (10)). This does not prevent the Council, notwithstanding the absence of such information, and subject to appeal, imposing conditions to which the permission should henceforward be subject (paragraphs 9(6) and (7), 10 and 11). Ministerial guidance upon the application of paragraph 9 has been issued under MPG 14.

In the preamble to their proposals the claimants represented:

“1.5

The intention of the Estate not to re-open the quarry in the immediate future is also reinforced by the fact that Pen-yr-Henblas Quarry has been identified as having a significant population of Great Crested Newts. The Newts and their habitat are protected under the Wildlife and Countryside Act 1981 and the European Union’s Habitat and Species Directive as implemented by the Conservation (Natural Habitat and Conservation) Regulations 1994.

1.6

The legislation makes it a criminal offence to harm the Great Crested Newt or its habitat. Any proposed operations within the quarry will undoubtedly come under intense scrutiny from the Countryside Council for Wales and will require a licence to be issued by them to ensure that the operators comply with the legislation. Consequently it is proposed that no working will take place on site until a scheme for dealing with the Newts and their habitat is agreed with the Countryside Council for Wales.”

On the application of the claimant under section 192 Town and Country Planning Act 1990 Flintshire County Council, on 14 October 2002, issued a certificate of lawfulness in respect of Pen-yr-Henblas, and an adjacent site with which I am not concerned for present purposes, in the following relevant terms:

“Flintshire County Council…hereby certifies that on 30^th July 2002…the operations described in the First Schedule to this Certificate in respect of [Pen yr Henblas]…would have been lawful within the meaning of Section 192 of the Town and Country Planning Act 1990 (as amended)…

FIRST SCHEDULE

The extraction by quarrying, working and processing of

(a)

stone of all kinds including (without limitation) limestone, chert, mudstone and sandstone;

(b)

…

(c)

…

pursuant to planning permissions…dated 30 March 1954…and 12 August 1966…”

Note 6 attached to the certificate read:

“The Land contains a substantial breeding population of Great Crested Newts, a protected species under the European Habitats Directive. An application to the National Assembly to translocate the newts will need to be approved before any mineral extraction can be carried out on the Land.”

The Note consists of advice to the holder of the certificate. It is the claimants’ case that while they made application for a licence to translocate the newt population of the quarry, as a matter of law they were not bound to receive a licence or to move the newts before quarrying operations could begin.

It follows from the issue of the certificate that, subject to any other impediment under statute or common law, the claimants were free to exercise their right to quarry Pen-y-Henblas. They were free to do so, it is conceded by the defendant, notwithstanding Flintshire County Council had not yet made a decision whether to impose planning conditions under Schedule 13 to the 1995 Act.

This brings me to the European Directive on the Conservation of Natural Habitats and of Wild Fauna and Flora [92/43/EEC].

In the old quarry workings at Pen-yr-Henblas water has accumulated and over time provided a habitat for animal life, including the great crested newt. The colonisation has taken place over about 20 years until by about 2002 the numbers were estimated at 200 plus.

The claimants wish in due course to resume quarrying at Pen-yr-Henblas.

The Habitat Directive Article 12 required member states to take measures to “establish a system of strict protection for the animal species listed in Annex IV” of which the great crested newt is one.

The United Kingdom’s response to the Directive was the Conservation (Natural Habitats etc) Regulations 1994. The great crested newt is protected by the Directive and by regulation 38 and Schedule 2.

Regulation 39(1) reads:

“It is an offence-

(a)

deliberately to capture or kill a wild animal of a European protected species;

(b)

deliberately to disturb any such animal;

(c)

deliberately to take or destroy the eggs of such an animal; or

(d)

to damage or destroy a breeding site or resting place of such an animal.”

It is to be noted that an offence under Regulation 39(1)(d) may be committed whether the damage or destruction was deliberate or not.

Regulation 40 grants various statutory defences. For present purposes, including the construction of regulation 40(3)(c), I shall recite the following:

“(2)

Nothing in regulation 39(1)(b) or (d) shall make unlawful anything done within a dwelling house.

(3)

Notwithstanding anything in regulation 39 a person shall not be guilty of an offence by reason of-

(a)

the taking of a wild animal of a European protected species if he shows that the animal had been disabled otherwise than by his unlawful act and was taken solely for the purpose of tending it and releasing it when no longer disabled;

(b)

the killing of such an animal if he shows that the animal has been so seriously disabled otherwise than by his unlawful act that there was no reasonable chance of its recovering; or

(c)

any act made unlawful by that regulation if he shows that the act was the incidental result of a lawful operation and could not reasonably have been avoided.

(4)

A person shall not be entitled to rely on the defence provided by paragraph (2) or (3)(c) as respects anything done in relation to a bat otherwise than in the living area of a dwelling house unless he had notified the appropriate nature conservation body of the proposed action or operation and allowed them a reasonable time to advise him as to whether it should be carried out and, if so, the method to be used.”

An exemption from liability under regulation 39 can be obtained by the grant of a licence. Regulation 44 provides:

“(1)

Regulations 39…do not apply to anything done for any of the following purposes under and in accordance with the terms of a licence granted by the appropriate authority.

(2)

The purposes referred to in paragraph (1) are-

(a)

scientific or educational purposes;

(b)

ringing or marking, or examining any ring or mark on, wild animals;

(c)

conserving wild animals or wild plants or introducing them to particular areas;

(d)

protecting any zoological or botanical collection;

(e)

preserving public health or public safety or other imperative reasons of overriding public interest including those of a social or economic nature and beneficial consequences of primary importance for the environment;

(f)

preventing the spread of disease; or

(g)

preventing serious damage to livestock, foodstuffs for livestock, crops, vegetables, fruit, growing timber or any other form of property or to fisheries.

(3)

The appropriate authority shall not grant a licence under this regulation unless they are satisfied-

(a)

that there is no satisfactory alternative, and

(b)

that the action authorised will not be detrimental to the maintenance of the population of the species concerned at a favourable conservation status in their natural range.

(4)

For the purposes of this regulation “the appropriate authority” means-

(a)

in the case of a licence under any of the sub-paragraphs (a) to (d) of paragraph (2), the appropriate nature conservation body [in Wales, the Countryside Council for Wales]; and

(b)

in the case of a licence under any of the sub-paragraphs (e) to (g) of that paragraph, the agriculture Minister [or in Wales, the Welsh Assembly Government].

(5)

The [Welsh Assembly Government] shall from time to time consult with [Countryside Council for Wales] as to the exercise of [its] functions under this regulation; and [it] shall not grant a licence of any description unless [it] has been advised by [Countryside Council for Wales] as to the circumstances in which, in their opinion, licences of that description should be granted.” [my insertions]

By regulation 45(1) a licence may be granted subject to compliance with specified conditions and may be modified or revoked at any time.

In December 2002 the Countryside Council for Wales notified much of Halkyn Mountain, which included Pen-yr-Henblas, as a Site of Special Scientific Interest under section 28(1) Wildlife and Countryside Act 1981. Furthermore, the Countryside Council has proposed much of Halkyn Mountain as a Special Area of Conservation for the purposes of regulations 7 to 14 of the Habitat Regulations although those two areas are not coterminous. Should its recommendation be accepted by the defendant further consequences for development and conservation follow. The Countryside Council’s decision to propose the SAC is the subject of challenge by the claimant in parallel proceedings for judicial review. It is common ground that these developments do not affect the decision I am required to make.

I am concerned with the claimants' application made to the defendant on 19 March 2002 under regulation 44(2)(e) of the 1994 Regulations. The application was prepared for the claimant by Christopher Betts Environmental Biology. Dr Betts was experienced in the relocation of great crested newts in particular and environmental issues in general. Dr Betts sought a licence to remove the great crested newt population of Pen-yr-Henblas and relocate it at Wern-y-Gaer, hence the reference to the donor and receptor sites. It was proposed that the scheme should take 5 years commencing in 2003. Allowing for unforeseen delays, it was intended that the quarry should be ready for the resumption of production some time in 2008 or 2009.

The claimants were required to satisfy the conditions set out in paragraphs (2)(e) and (3) of regulation 44. Dr Betts completed the defendant’s pro forma. At section 1 was the following instruction:

“The National Assembly for Wales can issue licences for “preserving public health or public safety or other imperative reasons of overriding public interest including those of a social or economic nature and beneficial consequences of primary importance for the environment;

Please explain why you are requesting a licence. This should include details of the work itself and the likely impact it may have on any European protected species. This section should include an explanation why you consider the work proposed is for one or more of the purposes described above.”

Dr Betts referred the reader to the ‘annexed Statement of Grounds’. At paragraph 2 of the Grounds, he wrote:

“The donor site is a chertstone/limestone quarry with one principal pond formed as a result of mineral extraction containing gcn. The donor site has a current valid planning permission for the extraction and working of stone. The stone is extracted by a variety of techniques:-

2.1

Chertstone by mainly mechanical means occasionally with the assistance of blasting (popping shots).

2.2

Limestone by blasting and mechanical collection

…The process of winning and working these types of stone and any overburden are not conducive to the welfare of the gcn population if left in situ”.

Dr Betts proceeded to make a case for the assertion that the winning of minerals was “a matter of considerable socio-economic importance” locally and nationally.

He summarised the principal grounds for the application at paragraph 4 which I shall paraphrase as follows:

At paragraph 9 of the form the applicant was informed that licences could be issued only if “there is no satisfactory alternative to the issue of a licence. Please explain what alternatives have been considered and why they will not suffice”. Dr Betts answered:

“There is no satisfactory alternative to issuing a translocation licence in this instance, as the mineral working processes will destroy the current habitat. Four locations have been considered as potential reserve sites. The reasons for the selection of the chosen site are explained in the attached Method Statement….”

Attached was a Method Statement in which Dr Betts described, with reasons, a 5 year plan for the movement of newts from the donor site to the receptor site.

On 18 April 2002 the defendant wrote to inform Dr Betts that further information was required. Further information was provided in a letter of 11June.

There followed a lengthy and detailed correspondence between the claimants and the Assembly which it is necessary to consider with some care because it demonstrates how the Assembly directed itself what were considerations material to its decision and discloses the Assembly’s present defence of its decision.

On 1 August Mr Barr of the defendant’s Countryside Division wrote ‘to update’ Dr Betts on progress. In the course of his letter the seeds of the dispute were sown:

“In relation to the overriding public interest (OPI) criterion this relates in particular to the proposals to extend quarrying operations in respect of your application. The information you have provided focuses on the translocation of the species. We do not agree that this is the correct interpretation of the OPI criterion requirements and are therefore seeking additional information on the economic benefit of the quarrying proposals in order to consider this element”

The defendant consulted Countryside Council for Wales (on environmental and conservation issues), and North Wales Regional Aggregates Working Party, reporting to Gwynedd Council, and Flintshire County Council (on social and economic issues). The County Council supplied a report prepared by Howard White Planning. That material was supplied to the claimants on 16 December.

In the meantime the claimants confused the issue by suggesting in a letter of 5 August that the application was made not under regulation 44(2)(e) but under regulation 44(2)(c), so ‘..it is not therefore appropriate for NAfW to consider the Application as if it were made under any of the other purposes specified in regulation 44(2). In particular there is no justification for importing a requirement conforming to regulation 44(2)(e) and applying those considerations to this Application.’ Dr Betts went on to correct Mr Barr’s understanding that this was a new development by extension of the quarrying activity. He said:

“I should like to make clear also that the Licence Application is not made in connection with a proposal to extend quarrying operations. Rather, it is made to enable quarrying to continue in an area which already has Planning Permission for mineral extraction.” [original emphasis]

On the face of it Dr Betts seemed to be conceding that the Assembly’s construction of OPI in the regulation 44(2)(e) context was correct. It became clear, however, that the claimants were maintaining their original stance.

In a reply of 27 September 2002 the defendant pointed out that it had been considering an application under Regulation 44(2)(e) and that any application under Regulation 44(2)(c) (that is, for a licence for the purpose of conserving wild animals or plants or introducing them to particular areas) should be directed to the Countryside Council for Wales. On 30 September Dr Betts confirmed he was instructed to ask the defendant to continue its deliberations upon the overriding public interest purpose under Regulation 44(2)(e). He concluded:

“As set out in my letter of 5 August, Grosvenor does not accept that its lawful entitlement to implement its planning permission can be restricted by these Regulations and is, by this Licence Application, taking all reasonable steps to seek not only to avoid any damage or disturbance to the relevant species but also to improve the species’ security and ecological status, as well as enhancing local biodiversity in line with current government policy.”

On 17 October Mr Barr acknowledged the claimants’ re-identification of the target sub-paragraph of regulation 44(2). He sought much further information from Dr Betts on the advice of Countryside Council for Wales. He then restated in more detail the views first expressed on 1 August (see paragraph 29 above):

“This licence application is being considered under regulation 44(2)(e) of the 1994 Regulations only. Issues of overriding public interest remain relevant…Since no arguments have been put forward to suggest that the translocation is necessary for the purpose of preserving health or public safety, you must satisfy the Assembly that there are ‘imperative reasons of overriding public interest’ for carrying out the translocation. It is in this context that the Assembly invites you to submit further information as to the social and economic benefit of the quarrying activities which would proceed if the licence were granted. The existence of the planning permission does not, in itself, establish that there are ‘imperative reasons of overriding public interest’ for granting the licence, as this test is not presently addressed by the planning process.”

As Mr Milwyn Jarman QC, for the defendant, observed in the course of argument the last sentence of this passage represents the essence of the Assembly’s case upon this review.

Dr Betts replied with some exasperation on 2 December:

“We have done our best to answer all your latest questions and I have set out the responses in a structured format for you in this letter, However, before that, I feel I must bring everyone’s attention firmly back to focus on the proposals’ main issues and considerable benefits which do seem to be consistently forgotten. They are:

1.

The great crested newts cannot stay in a consented live quarrying area where they are at risk. Our proposals have been carefully designed to remove the risk and protect the newts.

2.

The creation of extra ponds and associated habitat in a secure area will provide significant benefits not only for the newts, but also for other aquatic and terrestrial wildlife.

3.

The long term enhancements, management and aftercare are major contributions to nature conservation and fully in line with current government policy on sustainability and biodiversity.” [original italics]

Dr Betts set out at length his submissions in response to the request for information on conservation issues and at page 6 of his letter turned to ‘the overriding public interest (OPI) issues’. First, he drew attention to aspects of the Planning and Minerals Planning Policies for Wales and a ministerial statement which, he argued, identified the importance of planned mineral extraction. I shall recite his sixth bullet point since it formed the subject of an argument addressed to me by Mr Jarman that there remained an inconsistency in the claimants’ approach to the application:

“If the newts are not moved from Pen-yr-Henblas, then the effect would be to sterilise the mineral resource. This would be inconsistent with one of WAG’s objectives in paragraph 2.1.4 of PPW, in terms of sustainable development, which requires the ‘prudent use of natural resources’. [original italics]

Mr Jarman observed that it appeared to be the claimants’ intention not to resume quarrying unless they were granted a licence. On the other hand, the claimants’ argued that they did not require a licence because they would have a defence to an information laid under section 39. There is no true inconsistency. The claimants were drawn into an argument about the commercial availability of limestone when the true basis of the application rested on the existence of the planning permission.

At paragraph 8 of his letter Dr Betts replied to Mr Barr’s assertion that existing planning permission had not addressed the regulation 44(2)(e) issue of overriding public interest. He said:

“The grant or withholding of Planning Permission in response to any new application is subject to de facto OPI considerations as Circular 23/2001 seems to indicate. Grosvenor’s position is that the existence of a Planning Permission is the end rather than the commencement of the relevant process. There are already adequate powers available to the Minerals Planning Authority to revoke a Planning Permission if the development permitted thereby were deemed to be sufficiently injurious to the public interest. To the assertion that the existing Planning Permission at Pen-yr-Henblas cannot fall within these parameters, we make two points:

8.1

the existing Permissions were in force before the Conservation Regulations came into force and nothing in the Conservation Regulations purports to modify or revoke any such Permissions; and

8.2

the grant of a Certificate under Section 192 of the Planning Act on 14 October 2002 confirms that at 31 July 2002 the working of Pen-yr-Henblas for the extraction and working of all forms of stone was lawful (i.e. in the light of the Conservation Regulations and the proposed designation of the area including Pen-yr-Henblas as SAC).”

Circular 23/2001 was issued as interim guidance “in light of the Assembly’s intention to introduce new legislation to require local planning authorities to integrate decision-making on derogations from the species protection provisions of the Habitats Directive with planning decisions, and to update its policy guidance...” While the planning and regulation 44 processes are Directive compliant some criticism has attended the necessity for both the planning and regulation 44 decision makers to consider similar information going to development and environmental issues on different occasions (as to which see paragraph 89 below). The interim guidance stated:

“Licence applications arising from new developments are considered by the National Assembly for Wales. Before such a licence can be granted, the following tests, specified in Article 16 of the Habitats Directive and in regulation 44 of the 1994 Regulations, must be satisfied:

•

there is ‘no satisfactory alternative’ to the derogation;

•

the derogation is ‘not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range’;

•

the derogation is ‘in the interests of public health and public safety, or for other imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment’.” [my emphasis]

Paragraph 6 of the guidance identifies the steps the Assembly will take upon receipt of an application. The Assembly will ask the local planning authority to supply advice and information, including an assessment of the importance of the development, a copy of the report to the planning committee, a copy of the minutes of the planning meeting, a copy of any condition attached to the planning permission taking account of the presence of a European Protected Species and any other information relevant to the tests specified in regulation 44. The Assembly will consult Countryside Council for Wales on conservation issues (second bullet point, paragraph 38 above). At paragraph 8 the Assembly acknowledges that the ‘vast majority of applications for licences arise following the grant of planning permission’ but in the event of an application before planning permission has been granted the Assembly will process the application ‘as far as they can be taken on the basis of information provided by the applicant, but no final decision will be made until the planning position has been resolved’.

It is noteworthy that the Assembly’s approach to the claimants’ application was on all fours with the guidance expressed save, of course, that the Assembly was dealing here with an applicant relying on a long standing planning permission which had not been considered against modern environmental criteria. Herein may lie the reason for the Assembly’s approach to the claimants’ application. The Assembly was interested in the ‘importance attached to the development’ rather than the conservation of a protected species which would be disturbed by activities for which planning permission had long been granted.

I am not sure what Dr Betts meant in paragraph 8 by ‘the existence of the Planning Permission is the end rather than the commencement of the relevant process’. If he meant that in this particular application the planning permission should be taken to be the end of the process because, had they wished, the planning authority could have revoked the permission on public interest, including environmental, grounds, that argument was further advanced by the submissions of Mr Martin Kingston QC on behalf of the claimants before me.

At paragraph 13 of his letter Dr Betts returned to the central point of the claimant’s submission to the Assembly:

“For all these reasons, we really can see no sensible reason why the licence should not be granted in the terms applied for as the overriding public interest is to preserve and enhance the relevant species and biodiversity generally. Failure to grant the licence may well result in damage or injury to the gcn population in respect of avoiding which Grosvenor, in our view, has taken and is taking all reasonable steps…”

Submissions to the Assembly by consultees

Mr Bennion, Secretary of the North Wales Regional Aggregates Working Party, advised the Assembly on behalf of Gwynedd Council on 8November 2002 that ‘There is currently sufficient production capacity and permitted reserves to meet local and regional demand…any sales from this quarry would merely displace those from another…’

Mr Nancarrow, for the Director of Transport, Planning and the Environment, Flintshire County Council, wrote to the Assembly on 1 May 2002 enclosing a report from Mr Howard White, and expressed the following views:

“Halkyn Common currently supports three major operational limestone quarries, and two further limestone quarries are located within six kilometres of the application site. It is concluded that there is a substantial supply of limestone aggregate from these quarries to meet local and regional demand, and therefore there is no demonstrable national or local need for further chert or limestone quarrying at Pen-yr-Henblas quarry.

“In addition, there is a cumulative impact on the environment and community from the effects of the existing limestone quarrying on Halkyn Common and we do not believe the area to possess adequate environmental capacity to accommodate further quarrying until one or more of the existing working quarries ceases to be operational.”

As I have said, these documents were provided to the claimants by letter of 16 December 2002 with an invitation to comment. The first point made in a lengthy reply from Dr Betts on 30 December 2002 was that this was not, as Mr Howard White had assumed, a development proposal (with which, of course, the Assembly’s interim guidance had been concerned) but ‘a resumption of an existing active permission which does not constitute development (either by means of new works or change of use) for which any further planning permission is required’.

Mr White’s quotations from the claimants’ Schedule 13 proposals for modernised planning conditions (see paragraphs 6 and 8 above) gave a misleading impression, asserted Dr Betts. Mr White had noted at paragraph 3.2 of his report that the claimants had no immediate plans to work the site; they wished only to protect its asset value. No mineral operator, so far as known, wished to work the site. Dr Betts drew the Assembly’s attention to the detailed scheme for working the site (including, Mr Kingston informed me without demur from the defendant, a site quarrying plan) which accompanied the Schedule 13 proposals. They referred amongst other things to depth of working, access, blasting, dust and noise. He continued:

“These are all matters that demonstrate the Estate’s intention to recommence working of the site in due course, i.e. once the ecological issues are sorted out, (see para. 4.8 of ROMP submission).”

He pointed to Mr White’s omission from his report of several conditions which the claimants had proposed should be attached to the planning permission and related to operation of the quarry. While it was correct to say that the claimants had no immediate intention of quarrying, it had always been their intention to resolve the regulatory issues before doing so.

In commenting upon the ecological section of the Howard White report, prepared by Dr Greg Carson, Dr Betts repeated his assertion that this was not a new development. This was relevant because at paragraph 7.12 of the report, Dr Carson had written:

“Consideration of ‘satisfactory alternative’ should be based on the alternatives to the development proposal, not on the assumption that the proposal will go ahead and therefore there is no alternative to undertaking the translocation. As such, the applicant has clearly failed to demonstrate that there is no suitable alternative, and therefore cannot meet this derogation test. That there may be a valid planning permission is not in itself a reason for the NAfW to issue a translocation licence. The ‘alternative’ to mineral working at this site is dealt with elsewhere in this report.”

Dr Carson may have had in mind paragraph 6 of the report which considered the environmental impact of not working the site. It concluded:

“It is therefore considered there will be no adverse environmental or social consequences arising if this licence to move the newts is not granted and the quarry is not worked at present.” [original emphasis]

Dr Carson expressed the opinion at paragraph 7.6 that “Translocation of an ‘exceptional’ population of Schedule 2 species should only be undertaken where development is inevitable, not as a mechanism to enable development to proceed’. This appears to be the expression of a personal opinion unsupported by any authority or published planning policy since neither party to this review has been able to locate such. In any event, Dr Betts replied that quarrying was inevitable on the site. In dealing with 7.12 of the report he repeated he had not made a development proposal; furthermore, precedent had shown that the existence of a valid planning consent was indeed taken as a reason for issuing protected species licences. Dr Betts had in mind licences which had been awarded to applicants in respect of two other quarries on Halkyn Common on regulation 44(2)(e) grounds. Both were in the ownership of the claimants and worked under contract by others. Aberdo Quarry’s licensee received a licence on 18 April 2001 for the movement of great crested newts in order that a permitted access route to the quarry could be upgraded. No new planning permission was required. On 17 December 2002, thirteen days before Dr Betts’ letter was written, Mr Barr had signed a licence in favour of the licensee at Bryn Mawr Quarry for the movement of great crested newts, in order that soil stripping could take place preparatory to the winning of limestone under an existing planning permission.

Dr Betts made a large number of further submissions in his letter of 30 December, most answering the opinions expressed or the facts advanced by Mr White. I need not repeat them here since they do not directly affect the issues which have arisen in this review.

The licence was refused by letter of 14 February 2003. I shall extract what seem to me to be the significant parts of that letter:

“1.

Howard White Planning (29 April 2002)…considered that there was no present national or regional need for this site to be worked…The North Wales Regional Aggregates Working Party (8 November 2002) has expressed the view that there is currently sufficient production capacity and permitted reserves to meet local and regional demand.

2.

…As far as the use of chert and limestone as aggregate is concerned…[your] letter [of 30 December] accepts that the need does not arise at present, and relies instead on the anticipated exhaustion of nearby quarries, which you predict will take place between 2004 and 2009. You do not disagree with the judgment of the Working Party that “There is currently sufficient production capacity and permitted reserves to meet local and regional demand” but you draw attention to the word ‘currently’ and argue that at some stage in the future constraints on the ability to work Pen-yr-Henblas would contribute to a shortfall of aggregate. This is in line with the statement made [in the ROMP submission]…that the Estate has no immediate plan to reopen the quarry and that the submission has been prepared to safeguard the planning permissions and the value of the Estate’s interest in the quarries.

3.

The evidence…could be argued to show that the situation in relation to need might change in the future, that some years in the future the exhaustion of other sites, coupled with environmental objections which may arise at that stage in relation to alternative sites, could make this site a relatively desirable source of aggregates. This is insufficient to demonstrate an overriding public interest now or within the timescale required to relocate the newts. If the situation in relation to overriding need for the quarry products were to change at some time in the future it would be open to you to make a new application for a licence…”

The Assembly continued that it had given no significant weight to the claimants’ submission that in due time the newts’ habitat would in any event be spoiled by hydroseral succession of the water environment, or the natural drying up of the pools and would not do so until a risk within the foreseeable future was demonstrated.

The author of the refusal letter, Ms June Milligan, was met with a barrage of protest to which I need not refer save for Dr Betts’ observation on the central issue:

“You say that the OPI condition is not met by the application, yet you have ignored (failed to mention at all actually) the principal basis of my clients’ submission, namely the existence of a valid planning permission-a permission which, furthermore has recently been re-confirmed (copies of this were sent to you). I know you are aware that the existence of a planning consent is, by precedent, grounds for OPI…[T]he purpose of the application is move the great crested newt population…”

The claimants, having unsuccessfully attempted to persuade the Assembly to a meeting, wrote a protocol letter on 10 March 2003 in which they drew attention to the terms of regulation 44(3) and its relevance to the issue whether movement of the newts itself constituted an overriding public interest. In her reply of 27 March Trish Fretten said she believed the earlier decisions in respect of Aberdo and Bryn Mawr quarries had been made on their own merits. She continued:

“I am concerned at your suggestion that, as a result of operations authorised by the extant planning permissions, the great crested newt population ‘will suffer irreparable damage as the inevitable consequence of lawful quarrying activity’. Development which may be lawfully carried out under the provisions of the planning acts must nevertheless not be carried out in away which breaches the criminal law…If your clients are able to conduct their activities in such a way that there is no breach of regulation 39 then they are entirely at liberty to do so and, incidentally, would have had no need apply for a licence. If, on the other hand, their proposed operations are likely to result in such a breach then they cannot lawfully undertake them unless and until the animals have been translocated, for which a licence is required.”

Thus, on the defendant's case, the claimants were caught in Catch 22. I have extracted the passage almost in full since it dealt with an issue upon which the parties have devoted much of their argument.

The claim

The claimants seek an order quashing the defendant’s refusal of 14 February 2003. In their claim form the claimants also seek, if successful on the principal issue, declarations whose purpose would be to guide if not circumscribe the Assembly’s reconsideration of the application. Mr Kingston, realistically in my view, sees the difficulties in that assertion and, save for a declaration which goes to the issue of application of the Regulations, the claim for declaratory relief is abandoned.

Mr Kingston starts with the proposition that quarrying operations may be resumed lawfully under the existing planning permission without further consent. That is a proposition accepted by the defendant and it is, in my judgment, plainly right.

Subject to the statutory defences, however, should the claimant in the course of resuming quarrying operations deliberately kill, capture, or disturb a protected animal, or should the claimant, deliberately or not, damage or destroy a protected animal’s breeding site or resting place, an offence would be committed under Regulation 39(1).

Mr Kingston argues that the quarrying operation permitted by extant planning permission would be a lawful act for the purpose of regulation 40(3)(c). In other words the permission bestows legality.

By Regulation 44(1), Regulation 39 does not apply to anything done for the licensed purpose under and in accordance with the terms of a licence granted under the regulation. Accordingly, Mr Kingston submits, the lawful operation contemplated by the draftsman of Regulation 40(3) cannot have been the activity permitted by such a licence.

He points to the scheme of the regulations and the parallel or overlapping provisions of the 1981 Act. Regulations 19 and 23 grant the defence of reasonable excuse for operations within a protected European site if they are authorised by planning permission granted under Part III Town and Country Act 1990, and section 28P(4) Wildlife and Countryside Act 1981 provides a similar defence for operations carried out on a Site of Special Scientific Interest. It would be entirely consonant with a purposive construction of the Regulations (which the parties agree is the correct approach) if a defendant with the benefit of planning permission had an absolute defence provided the activity concerned was authorised by the permission and the consequences prohibited were the incidental result of that activity.

Mr Kingston drew my attention to the terms of regulation 40(4). Paragraph (4) appears to assume that a knowing disturbance of a protected species [in that case a bat population] incidental to a lawful operation would absolve the defendant of guilt of an offence under regulation 39 were it not for the additional burden imposed in the case of bats to notify a nature conservation body.

The claimants argue that the nature of the quarrying activity referred to in the application and correspondence (see paragraphs 23 and 46 above) put beyond question that the consequences prohibited by regulation 39 would be an unavoidable and incidental result of a lawful operation within the meaning of regulation 40(3)(c). Accordingly, the protection of the newts had itself become an overriding public interest.

Since the claimants would establish their defence if prosecuted following a decision to proceed, the Assembly should have engaged with their assertion that the translocation itself was an overriding public interest of beneficial consequences of primary importance for the environment. Either the defendant reached its decision believing the existing planning permission was merely a factor and that some other and additional overriding public interest beyond the saving of the newts was required to justify the grant of a licence, in which case the defendant failed to take account of a material consideration, or the defendant did not consider the issue at all.

Mr Kingston submitted that the Assembly must have failed, in the decision making process, to have regard to the planning code as it affected mineral development. It was not the case that the planning authority was without power to prevent a resumption of development undesirable on planning, including environmental, grounds. The planning authority has power under section 97 and Part II Schedule 5 to the Town and Country Planning Act 1990 in an appropriate case to revoke the permission upon payment of compensation; under paragraph 1, Schedule 9 to the Act to order discontinuance of the land use; and under paragraph 5(4), Schedule 9 to suspend operation while consideration is given to protection of the environment. Furthermore, the local planning authority retains its right to impose modern conditions of permission under Schedule 13 to the 1995 Act. Planning considerations such as the local, regional or national demand for quarrying products were not, in present circumstances, admissible reasons to refuse a licence under regulation 44. Regulation 44 should not have been used to prevent lawful activity under an existing planning permission. In support of this argument Mr Kingston relied on a decision of the Court of Appeal in R. v. Warwickshire County Council ex parte Powergen plc (1997) 3 PLR 63. It was not reasonable for a highway authority, whose road safety objections had been fully heard and rejected on appeal, to maintain and act upon their original view by withholding co-operation from reaching a section 278 agreement under the Town and Country Planning Act 1990. Here, the defendant should have started from the position that the claimants had permission to proceed with their development and that a licence was required to prevent damage to the protected species. I am bound to observe that I have found Powergen of limited assistance in the resolution of this case which turns on the proper construction and application of a statutory provision.

The defendant argues that a purposive approach to regulation 44(2)(e) should result in a narrow interpretation.

Mr Jarman QC, for the Assembly, attaches significance to the division of functions between the Countryside Council for Wales (subparagraphs (a)-(d)), which is concerned primarily with conservation issues, and the Welsh Assembly Government (subparagraphs (e)-(g)), which is the custodian of the general public interest. He argues that there is good reason for distinguishing between the two categories of purpose. The intention of the draftsman it would seem was to require applications grounded upon conservation to be directed to the Council and those grounded upon a competing but overriding public interest to be directed to the Assembly.

The Assembly has, under subparagraph (2)(f), the responsibility of judging whether it is established the destruction or disturbance of a protected species is necessary to prevent the spread of disease, and, under subparagraph (2)(g), whether it is necessary to prevent serious damage to livestock etc. These are objectives or ‘purposes’ with a public interest dimension.

Each of subparagraphs (f) and (g) requires the Assembly to consider whether the purpose identified is, in the circumstances, of sufficient importance to justify the destruction or disturbance of the protected species.

Adopting the same approach to paragraph 44(e), the appropriate construction, it is submitted, becomes clear.

Since the claimants did not advance the preservation of public health or public safety as their purpose, they needed to establish imperative social or economic reasons or beneficial consequences of primary importance for the environment or the like.

The legislator had given to the Countryside Council for Wales the duty of considering applications made for the purpose of ‘conserving wild animals’ under subparagraph (c). It is therefore unlikely that the legislator intended the Assembly also, under a differently framed provision, to fulfil the same duty. Thus, the ‘beneficial consequences of primary importance to the environment’ contemplated by subparagraph (e) were not those which would arise solely from the conservation of the protected species. Subparagraph (e) should be construed so to require either the preservation of public health or safety or imperative reasons of overriding public interest which outweighed the presumption in favour of leaving the protected species completely undisturbed.

Mr Jarman argues that the Assembly was simply not concerned with the question whether an offence would or would not be committed under Regulation 39. It was concerned only with the question whether there existed such an overriding public interest in the operation proposed that the presumption that the newts should remain undisturbed was overcome. Thus, the Assembly was entitled to consider whether there existed a public interest, economic, social or otherwise, in the resumption of quarrying at Pen-yr-Henblas.

If, in the alternative, the Assembly had considered the application as the claimants suggest it should, it would inevitably have found the claimants would be required, in order to avoid a conviction, to demonstrate on a balance of probability that (1) the act (i.e. capture, killing, disturbing, damaging or destroying) was the incidental result of the lawful operation and (2) the act could not reasonably have been avoided. The planning permission did not of itself authorise the acts prohibited by Regulation 39 (i.e. the capture, killing and so on).

Mr Jarman went a significant stage further. He submitted that if the claimants knew that resumption of quarrying, lawful under the planning permission, would incidentally bring about a prohibited regulation 39 act, they would commit the regulation 39 offence if they carried on regardless since ‘lawful’ must in context mean lawful under the criminal law also. The defence is only to be established if the claimants demonstrate the prohibited act could not reasonably have been avoided. Since they know that the quarrying operation will bring about the prohibited act they will not establish that the prohibited act could not reasonably be avoided. They could quite easily avoid the prohibited act by not quarrying.

Mr Jarman suggests that the logical consequence of the claimants' construction of regulation 40(3)(c) and its application to the present facts is that no licence would ever be required if extant planning consent permitted the development to take place. If that had been Parliament’s intention then it would have been a simple matter to say so, as in regulations 19 and 23 and section 28P(4) of the 1981 Act.

Accordingly, it is the defendant’s case that it was right to examine the public interest considerations put forward by the claimants in isolation from the questions (1) whether an offence would be committed if they resumed quarrying without a regulation 44 licence and (2) whether the consequent destruction or disturbance of the newt population would itself amount to a matter of overriding public interest. Local, regional and national demand for the product was therefore a material consideration as was the period of time within which the disturbance was planned to take place. Since there was no present significant demand and significant demand may not arise for some years the Assembly was entitled to refuse the licence on the ground that an overriding public interest had not been demonstrated.

I accept the submission made on behalf of the claimants that an overview of planning legislation is an appropriate starting point for an understanding of the legislative intention behind regulations 39, 40 and 44.

‘Development’ which includes ‘mining or other operations’ requires planning permission (section 55(1) Town and Country Planning Act 1990). This has been a requirement since 1July 1948 when section 12(2) of the 1947 Act came into force. In exercising the discretion whether to grant planning permission the local planning authority or the Secretary of State shall have regard to the provisions of the development plan and to any other material considerations (section 70 of the 1990 Act; section 14 of the 1947 Act).

Nature conservation is an essential consideration in a development plan (section 36(3) of the 1990 Act and regulation 37 Conservation (Natural Habitats &c) Regulations 1994) and is, in any event, a ‘material consideration’ for the purpose of the exercise of the planning discretion under section 70.

As observed in paragraph 63 above, planning permission may be modified or revoked subject, in appropriate cases, to compensation. A mineral planning authority may make a ‘discontinuance order’ or a ‘prohibition order’ and require the site to be restored. A mineral planning authority may issue a ‘suspension order’ for the purpose of protecting the environment. Section 96 and Schedule 13 to the Act of 1995 provides a power to mineral planning authorities to review old mineral planning permissions and to impose modern conditions.

The Habitats Regulations were the United Kingdom’s performance of its obligations under the Habitats Directive. They introduced sweeping changes affecting the planning process. Part I, regulation 3 imposed on government ministers and nature conservation bodies the duty to exercise their functions under existing conservation legislation to ensure compliance with the Habitats Directive.

Part II concerns the identification and management of sites of a type identified as important by the Habitats Directive. Regulation 7 required the Secretary of State by 5 June 1995 to identify sites with Annex I Habitats Directive natural habitat types and sites with Annex II Habitats Directive species, and transmit a list of those sites to the Commission. Once a site of Community importance has been adopted under Article 4(2) of the Habitats Directive, the Secretary of State, now the Welsh Assembly, shall, by regulation 8, designate the site as a ‘special area of conservation’ (SAC). By this and other means a site may become ‘a European site’ (regulation 10). Operations within European sites notified to the owner or occupier by a nature conservation body as potentially damaging are, subject to emergency and the planning defence, prohibited under regulation 19. The Secretary of State, now the Welsh Assembly, may make in respect of land within a European site a ‘special nature conservation order’ specifying operations which appear likely to destroy or damage flora and fauna etc on the land. Operations carried out in breach of such an order are, subject to emergency and the planning defence, prohibited under regulation 23. Regulation 37 provides that policies to be included in development plans, structure plans and local plans ‘shall be taken to include policies encouraging the management of features of the landscape which are of major importance to wild flora and fauna’ whether or not within a European site. Halkyn Common is not currently a European site.

As I have observed in earlier paragraphs, Part III introduced, by regulations 38 to 46, specific measures for the protection of plants and species.

The consequences of the Habitats Directive for consents generally and the planning process in particular are dealt with in Part IV. In short, all new applications for permission or consent for ‘a plan or project’ on a European site which is (a) likely to have a significant effect upon the site and (b) not directly connected with or necessary to the management of the site, shall, by regulation 48, be subject to an assessment by the competent authority of the implications for the site and the authority, subject to regulation 49, shall agree only having ascertained that the plan or project will not affect the integrity of the site adversely. By regulation 49(1) the competent authority may agree to the plan or project notwithstanding a negative assessment ‘if they are satisfied that, there being no alternative solutions, the plan or project must be carried out for imperative reasons of overriding public interest (which, subject to paragraph (2), may be of a social or economic nature)’. Paragraph (2) provides that where the site hosts a ‘priority natural habitat type or a priority species’ the reasons must be either ‘(a) reasons relating to human health, public safety or beneficial consequences of primary importance to the environment or (b) other reasons which in the opinion of the European Commission are imperative reasons of overriding publicinterest’. This is a significant provision since it mirrors the provisions of regulation 44(2)(e) and (3)(a)). It is to be noted that paragraphs (1) and (2)(b) do not seek to limit categories of public interest.

As to pre-existing ‘consents, permission or other authorisation’ to which regulation 48(1) would have applied if in force, they must be reviewed by the authority as soon as reasonably practicable under regulations 50-53 and affirmed, modified or revoked.

Regulations 54-59 apply regulations 48-53 expressly to planning permissions. Later regulations whose details are not relevant for present purposes apply European site conservation considerations to development orders, planning and enterprise zones, highways and roads development, electricity lines and pipelines construction, transport and works orders, pollution and waste management.

The Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 continued the concept of the Environmental Impact Assessment Development for specific cases and required the local planning authority or Secretary of State before granting planning permission to take environmental information into consideration. (Formerly Town & Country Planning (Assessment of Environmental Effects) Regulations 1988). This will frequently involve the weighing of public interest in the disturbance of habitat.

It follows that when permissions were granted for quarrying at Pen-yr-Henblas the planning authority was not required to engage in the process required by the Habitats Regulations and the protected species subsequently identified was not in occupation of the site. It is, however, accepted that the local planning authority, using the powers listed in paragraphs 63 and 79 above, has the ability on planning grounds to prevent further development under the existing permissions should it be appropriate to do so.

The manner in which the Habitats Directive has been transposed into United Kingdom regulations has been the subject of litigation both here and in Europe. In Commission of the European Communities v. United Kingdom of Great Britain and Northern Ireland (Case C-434/01 Judgment delivered 6 November 2003) the Commission unsuccessfully sought a ruling from the European Court of Justice in Luxembourg that the United Kingdom had failed to put in place a system guaranteeing that, if planning permission is granted to develop sites on which live protected species, such as the great crested newt, the competent authority complies with the conditions laid down in Article 16(1)(c) of the Habitats Directive (whose terms are almost identical to regulation 44(2)(e) and 44(3)(a) and (b) of the Regulations) for the grant of a derogation. It was not disputed that regulation 44 properly transposed Article 16 into national law. The complaint concerned the separate systems of licensing and planning. Planning permission was most often granted before the application for a licence was made. Once planning permission was granted the effect was to fetter the discretion of the decision maker deciding whether to grant a licence. He was no longer in a position to decide independently whether there was a satisfactory alternative or whether the development was really justified by overriding public interest. He relied on information supplied by the planning authority.

The Commission’s request before proceedings for clarification of the United Kingdom’s position was answered by letter of 3 April 2000. National law required planning authorities to take account of the Directive in the exercise of their powers. When an application for planning permission is submitted and the planning authority is informed of the presence of a protected species on a site the development of which is envisaged, it is bound to take that fact into consideration in determining such an application. Two outcomes are possible: either the application is refused by the planning authority, or it is accepted subject to certain specific conditions ensuring the protection of the species. In the latter case, the developer must take account of the requirements of Articles 12 and 16 of the Directive and whether he needs to apply for a licence under regulation 44.

The United Kingdom Government argued that none of the authorities may grant a licence unless satisfied that the application falls within one of the grounds set out in Article 16(1)(a) to (e) of the Directive (regulation 44(2) and (3)). The appropriate authority must carry out an independent assessment of the relevant information and considerations, even if planning permission has already been granted. The decision maker had power to suspend the grant of a licence until the required information is available. Article 16(1) states:

“Provided that there is no satisfactory alternative and the derogation is not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range, Member States may derogate from the provisions of Articles 12 [see paragraph 95 below]…

(a)

in the interest of protecting wild fauna and flora and conserving natural habitats;

(b)

to prevent serious damage, in particular to crops, livestock, forests, fisheries and water and other types of property;

(c)

in the interests of public health and public safety, or for other imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment;

(d)

for the purpose of research and education, of repopulating and re-introducing these species and for the breeding operations necessary for these purposes, including the artificial propagation of plants;

(e)

to allow under strictly supervised conditions, on a selective basis and to a limited extent, the taking or keeping of certain specimens of the species listed in Annex IV in limited numbers specified by the competent national authorities.”

The Commission observed that in a further letter of 25 October 2000 from the Department of Environment, Transport and the Regions to a complainant it was stated that when an authority is considering the grant of derogation from the system of strict protection it takes account of the fact that planning permission has already been granted. The final administrative decision was, however, taken by the appropriate regulation 44 authority.

The Court found that the Commission had failed to establish that in the instant case the appropriate regulation 44 authority did not apply the strict terms of Article 16(1)(c) (regulation 44(2)(e)). The requirement for the second decision maker to consider strictly the terms of regulation 44 was sufficient performance of the Directive.

Mr Jarman drew my attention to two decisions of this court upon interpretation of regulations 39 and 40. In Regina v. Secretary of State for Trade and Industry and Others, Ex parte Greenpeace Ltd. Times Law Reports 19 January 2000 (Transcript CO/1336/1999, decision 5 November 1999) Maurice Kay J granted Greenpeace limited permission to proceed to review of the Secretary of State’s decision that the Regulations applied in geographical scope only to UK territorial waters. He considered, in the context of an argument that the UK government had failed effectively to implement the Habitats Directive, the Regulations generally.

Maurice Kay J drew attention to the terms of Article 12:

“1.

Member States shall take the requisite measures to establish a system of strict protection for the animal species in Annex IV(a) in their natural range, prohibiting:

(a)

all forms of deliberate capture or killing of specimens of these species in the wild;

(b)

deliberate disturbance of these species, particularly during the period of breeding, rearing and hibernation and migration;

(c)

deliberate destruction or taking of eggs from the wild;

(d)

deterioration or destruction of breeding sites or resting places.”

These requirements were met by regulation 39 of the 1994 Regulations.

The judge considered what was the meaning of ‘deliberate’ regulation 39(a)-(c) ‘acts.’ He said:

“The assumed factual matrix is that oil exploration activities of the type contemplated will or are likely to or may disturb cetaceans particularly during breeding, rearing, hibernation and migration. [Greenpeace] submits that when an operator conducts an activity in the knowledge that such disturbance will result or knowing that it is likely or possible that it will result, he is ‘deliberately’ disturbing. It does not require an intention or desire to disturb, simply that the consequence is known or foreseen or foreseeable. [The Secretary of State] and [the Oil and Gas companies] submit that that is an erroneous construction of ‘deliberate’ which, it is suggested, is the antithesis of ‘incidental’. On their, narrower, construction ‘deliberate disturbance’ connotes a specific aim of disturbing the species. They also point to Article 12.4 which provides:

‘Member States shall establish a system to monitor the incidental capture and killing of the animal species listed in Annex IV(a). In the light of the information gathered, the Member States shall take further research on conservation measures as required to ensure that the incidental capture and killing does not have a significant negative effect on the species concerned.’

……

In my judgment, the submissions of [the Secretary of State] and [the Oil and Gas companies] and the antithesis of ‘deliberate’ and ‘incidental’ are correct. I do not consider it can properly be said that the Oil Companies engage in the deliberate disturbance of cetaceans. However, whilst that may put an end to Greenpeace’s reliance on paragraph (b), it does not deal with paragraph (d) where the word ‘deliberate’ is absent…”

Greenpeace was driven to submit that regulation 40(3)(c) was an impermissible derogation from the prohibition required by the Habitats Directive. Although not expressly stated in the judgment, it seems Greenpeace was driven to this position by the fact that the Oil and Gas Companies were not, as the judge found, ‘deliberately’ committing the prohibited regulation 39(a)-(c) acts and had, by regulation 40(3)(c), a defence to regulation 39(d). Maurice Kay J held regulation 40(3)(c) was not an impermissible derogation. He found it to be reasonable and within the permitted degree of discretion to reflect the prohibitions of Article 12 in the criminal law and to provide the regulation 40(3)(c) defence in order to distinguish between the deliberate and incidental effects of activity contemplated by the Directive. “Moreover,” he observed, “without regulation 40(3)(c), the range of criminality which might arise in the course of carrying out activities which are in other respects lawful would be intolerable, especially if Article 12.1(d) were allowed to create a crime of virtually strict liability.”

This is an important first instance decision. Maurice Kay J’s view was that the establishment of ‘strict’ protection within the meaning of Article 12 did not require absolute prohibition of the Article 12(1)(a)-(d) acts since the Directive itself, by Article 12.4, contemplated ‘incidental’ capture and killing. The use of the word ‘incidental’ implied an acknowledgement that there might be unavoidable damage to a protected species consequent upon a lawful act. Accordingly, regulation 40(3)(c) adequately reflected that acknowledgement and was Directive compliant. I agree with and adopt Maurice Kay J’s acceptance of the Government’s submission in Greenpeace. It seems to me these findings are a powerful obstruction to Mr. Jarman’s submissions upon the meaning and application of regulations 39 and 40.

The second decision to which I was referred was that of Harrison J in R. v. Cornwall County Council, ex parte Hardy (2001) JPL 786. I have been provided with a transcript of the judgment (CO/4784/99). An application for extension of a landfill site was granted by the local planning authority subject to conditions. Condition 8 prohibited development until, amongst other things, a bat survey had been carried out and measures agreed to mitigate disturbance. Harrison J held that having concluded a further survey was required the local planning authority acted unlawfully in granting permission before the survey was to hand. It could not rationally conclude that there were ‘no significant nature conservation effects’ without also the data from the forthcoming survey.

The claimant argued without apparent demur that regulation 40(3)(c) provided the developer with a defence to a regulation 39 offence once permission was granted. Having noted regulation 40(4), Harrison J continued at paragraph 40 of his judgment:

“It follows, therefore, that it would not be unlawful to destroy the bats’ roosts when carrying out the planning permission provided that the provisions of regulation 40 were observed and provided that it was not contrary to such mitigation measures as may be imposed to condition 8 of the planning permission.”

As Mr Jarman acknowledged the claimants derive from these two decisions support for their argument as to the construction of regulation 40(3)(c). I accept the claimants’ construction. I do not, however, consider that their comparison of paragraph 3(c) with regulations 19 and 23 and section 28P(4) of the Wildlife and Countryside Act 1981 (see paragraph 60 above) is helpful. Those provisions are differently framed and plainly intended to apply to operations upon specific sites. Once applied they create an absolute defence. Nevertheless, it seems to me that the plain purpose of regulation 40(3)(c) is, in the circumstances requiring proof, to exempt the operator from criminal liability. The subparagraph is drawn widely enough to embrace all lawful activities and is not confined to the implementation of a planning permission. Thus, a farmer driving his tractor across his fields in the course of his work would be able to rely on the defence as would a developer who implements his planning permission. The reality is that conditions would be attached to any new planning permission designed to minimise or eliminate disturbance. If the public interest did not outweigh environmental considerations then permission would be refused altogether.

I cannot accept Mr Jarman’s narrow construction of regulation 40(3)(c). His construction would, in my view, deprive the statutory defence of its effect. If the intention was to protect a species absolutely from any operation which would knowingly damage, disturb or destroy, then I do not see the need for the use of the words ‘incidental result of a lawful operation’. Furthermore, the use of the word ‘deliberate’ in regulations 39(1)(a)-(c) was intended to provide an antithesis to the incidental acts contemplated by regulations 39(1)(d) and 40(3)(c). Knowledge of the probable consequences of an otherwise lawful activity (for example, oil and gas exploration or, as here, quarrying) is not enough to establish proof of a ‘deliberate’ offence under subparagraphs (a)-(c). Conviction of a regulation 39(1)(d) offence would be avoided if a defendant proved that (1) the operation was, apart from regulation 39, lawful, (2) the lawful operation could not have been carried out in a manner which could reasonably have avoided the damage or destruction, and (3) the damage or destruction was an incidental result of the lawful operation. I do not accept Mr Jarman’s argument that if the claimants are right any holder of planning permission will have an absolute defence to an information framed under regulation 39(1)(d). The defendant must prove both that the prohibited consequence was incidental to the lawful operation and that the consequence could not reasonably have been avoided by pursuing the same lawful operation by other means.

It follows that the claimants would have a good arguable defence to a prosecution under regulation 39. That finding does not of itself resolve this claim. It may, however, assist in a purposive interpretation of regulation 44(2)(e) under which the licence application was made.

It seems to me I am bound to approach regulation 44 with an understanding that the Directive and the Regulations both recognise the possibility that a lawful operation could cause serious incidental harm to a protected species. This, in my view, is the point at which the defendant should have but did not consider the effect of the planning permission and its interaction with the regulation 40(3)(c) defence.

Mr Jarman accepts that an application for this licence could have been appropriately addressed to the Countryside Council for Wales under regulation 44(2)(c). What then would have been material considerations for the Council? The claimants would be seeking a licence to conserve a protected species because, in light of the planning permission, it is likely the species would otherwise be harmed. If Mr Jarman’s argument is sound the Council would be entitled to refuse the application simply on the ground that there was a satisfactory alternative within the meaning of regulation 44(3)(a), namely not pursuing the development under extant planning permission. In my view, that cannot be right. It seems to me the Council would be bound to proceed on the basis that the permission entitled the developer to commence operations subject to regulations 39 and 40.

The purpose of regulation 44 is to permit activities which, apart from regulation 39, may be lawful or unlawful but only for restricted purposes. Depending upon the circumstances the licence may prescribe strictly the activity for which the licence is granted. For example, it may be the intention of the applicant ‘deliberately to take…the eggs of such an animal’ (regulation 39(1)(c)) for ‘scientific or educational purposes’ or for ‘conserving wild animals’ (regulation 44(2)(a) and (c)). The activity will be appropriately controlled by licence conditions imposed by the conservation body.

It does not seem to me that the fact a proposal could, on the claimants’ case, be addressed either to the conservation body or to the Welsh Assembly under different subparagraphs of regulation 44(2) assists Mr Jarman’s argument for a narrow construction of subparagraph (2)(e). The terms of Article 16 themselves admit of the same prospect of overlapping. The Directive does not identify separate competent authorities to whom application can be made; that was the choice of the UK legislature. That choice cannot in my opinion govern construction of regulation 44(2)(e).

The question for me is whether the Welsh Assembly was right to direct itself that (1) the overriding public interest contemplated by regulation 44(2)(e) could not include the preservation of the species the claimants sought to relocate and (2) the damage to the protected species upon resumption of the quarrying development was not a consideration relevant or central to the decision whether to grant a licence. This is a question of construction of the regulation.

It seems clear the ‘other imperative reasons of overriding public interest’ are not intended to be ejusdem generis with ‘preserving public health or public safety’ since paragraph (2)(e) immediately identifies reasons of a ‘social or economic nature and beneficial consequences of primary importance for the environment’ as candidates. The paragraph is widely drawn, in my view for good reason. The public interest may be formed by a variety of exigencies of the time. It does not seem to me that the categories of public interest described by paragraph (2)(e) are intended to be exhaustive. See also paragraph 83 above. What is required is an identifiable public interest which outweighs the regulatory purpose of preventing any destruction or disturbance of or damage to a protected species. The claimants, however, are content to rely on ‘beneficial consequences of primary importance to the environment’. I have considered the use of similar terms in regulation 49(1) and (2). While it must be acknowledged that under regulation 44(2)(e) or 49(1) and (2) the decision maker will usually be faced with an argument that the development is of such importance that disturbance is justified, I am unable to construe either as excluding a public interest in the preservation of the protected species itself. The public interest is, upon the claimants’ case, represented by the need not to allow existing planning decisions to damage the environment. Here, the claimants’ purpose is to minimise damage to the protected species by the creation of a specially formed and, incidentally, better environment. The public interest is served, it is argued, by saving from damage a protected species which otherwise would inevitably suffer destruction and damage from an activity made lawful by an existing planning permission and by the existence of the regulation 40(3)(c) defence. It is not necessary to examine whether the claimants would in fact proceed without a regulation 44 licence. It is enough that it would be lawful for the claimants to proceed.

I accept these submissions. It makes good sense that the concept of public interest should be engaged to prevent the risk of damage to a protected species by the operation of a planning permission granted before the regulations came into effect. I can see nothing in the words of the subparagraph or in the apparent purpose of the regulation which should restrict its meaning as the defendant contends.

There is one apparent consequence of this construction which has caused me some anxiety whether it is correct. The Government submitted to the European Court of Justice in Luxembourg (admittedly in a case where it was assumed planning permission was recently granted) that the regulation 44 decision maker applied the rigour of paragraph (2)(e) even if planning permission had already been granted and the Court accepted that was sufficient performance of the Directive (see paragraphs 88-92 above). If an applicant persuaded the planning authority to grant permission then, if the claimants are right, he would be able either to commence the development without a licence (subject to conditions of the permission and a regulation 40(3)(c) defence), or to require the regulation 44 decision maker, as here, to treat protection of the species as an overriding public interest consequent upon the grant of planning permission. This is plainly not the way in which the Government envisaged the operation of the planning and regulation 44 procedures.

On the other hand, the Government submitted to Maurice Kay J in Greenpeace that regulation 39(1)(a)-(c) did not create an offence of strict liability when the prohibited acts were merely foreseen and not intended, and that regulation 39(1)(d) liability was subject to the defence (widely interpreted) provided by regulation 40(3)(c). The logical consequence of that submission, accepted by Maurice Kay J and by me, is that, should the development be likely to give rise to regulation 39 destruction, damage or disturbance, (1) planning permission to develop does provide the applicant with powerful material with which to apply for a licence under either subparagraph (c) or subparagraph (e) of regulation 44(2), or (2) the developer may proceed (subject to conditions and a regulation 40(3)(c) defence) without a regulation 44 licence. If this is right then the full burden of the overriding public interest judgment rests with the planning authority and not with a regulation 44 decision maker (contrary to the decision of the European Court in Commission v. U.K.) unless it is a condition of the planning permission that the permission will not be implemented unless and until a regulation 44 licence is obtained.

I am not, ultimately, deterred from accepting the claimants’ construction of regulation 44. My reasons are as follows.

First, Mr Jarman’s acceptance on behalf of the Assembly that the holder of planning permission could apply for a licence to the Countryside Council for Wales under regulation 44(2)(c) is plainly right. The opposite construction of paragraph (2)(c) would require me to read into it the words ‘other than for the purpose of implementing a planning permission or otherwise conducting a lawful operation’. I do not consider that a justifiable device. It is not necessary in order to give purposive effect to the Regulations and the Directive. The required effect is achieved provided that the planning authority performs its obligation to act in accordance with the Directive. If the concession that the claimants would have a valid paragraph (2)(c) case is correct, then, as I have said at paragraph 104, I can see no justification for the argument that the application could be refused simply because not to implement the planning permission would be a satisfactory alternative within the meaning of regulation 44(3)(a). The applicant could proceed without the licence and the protection of the species the Regulations are designed to achieve would be lost. If it would not be right to construe regulation 44(2)(c) and (3)(a) as Mr Jarman proposes, then I can see no better argument for adopting the same device in an interpretation of paragraph (2)(e). To construe the subparagraph as did the defendant requires an assumption or qualification that the public interest can never be represented by a need to protect the species itself. Yet self evidently such an overriding public interest may well arise if the developer can proceed anyway without a licence.

My second (and linked) reason arises from what I regard as the proper construction of regulation 40(3)(c). If the words of the subparagraph do not provide a defence to an operator who could avoid the damage or destruction of a breeding site simply by ceasing his lawful operation, then it seems to me subparagraph (c) is robbed of its intended effect. It would mean no more than that a defendant is not liable for a regulation 39 act if he did not realise it would or might be an incidental result of his lawful operation. That is not, in my view, what the subparagraph says or intends. If the wider construction is correct then it follows, as I have found in paragraph 103, that regulation 44 should be approached with an understanding that lawful operations could cause damage to protected species without criminal liability attaching to the operator. It does not, however, follow automatically that because an applicant asserts a right to exercise an extant planning permission a licence will be granted or he will be free to proceed without one. The reality is that planning permissions granted after 1994 will have been given only after consideration of the environmental consequences of the development proposed and with the public interest very much in mind. Only if the public interest prevails and adequate mitigating steps are to be taken will the permission be granted. Furthermore, the planning authority can, in an appropriate case, impose a condition that the developer may not proceed without a regulation 44 licence. In such a case, it seems to me that the mere existence of a conditional permission could not found an application under regulation 44(2)(c) or (e) because the permission would not, of itself, permit the development to take place for the purposes of regulations 40(3)(c) or 44. It could not, therefore, found an argument that the developer was compelled to conserve the protected species (subparagraph (c)) or that protection of the species comprised an overwhelming public interest (subparagraph (e)). Provided the planning authority or the regulation 44 decision maker or both address the admissible overriding public interest issues then it seems to me the United Kingdom’s application of the Directive is indeed compliant. Whether the existence of a planning permission can form the justification for grant of a licence will depend upon the circumstances of the individual case.

Thirdly, it seems to me, particularly where the planning permission pre-dates the regulations, that the regulation 44 decision maker may properly in certain circumstances consider planning issues. Regulation 45(1) gives the decision maker a wide discretion to make the licence subject to conditions. There may be circumstances in which it could properly be the view of the Assembly that no step creating disturbance should be taken until the planning authority is given the opportunity to reconsider the grant of permission or the conditions upon which it was granted. The licence may be refused or granted subject to a condition giving effect to that view. (I am not implying that is the case here since the planning authority has had ample opportunity to consider taking action and has not acted.) I recognise the possibility that the refusal or the grant on condition might not have teeth if the developer has a regulation 40 defence. Alternatively, the Assembly may conclude there is no established intention to recommence the development, or that the development can take place without disturbing the protected species, or that the measures proposed will not fulfil their purpose. In each case the Assembly will be making a judgment whether the public interest advanced outweighs the statutory purpose that a protected species should be disturbed only if a satisfactory alternative is unavailable.

That judgment, it seems to me, is bound to include an assessment whether the applicant could proceed without criminal liability under regulation 39. If so, the more weighty becomes the public interest in managing the disturbance to the advantage of the environment. Here, the Assembly was faced with an application by developers who did not need planning permission, nor was their existing planning permission subject to conditions which would prevent re-commencement of quarrying on environmental grounds or without a regulation 44 licence. In my judgment, had the Assembly correctly interpreted regulations 39, 40 and 44, it would have concluded that protection of the species was, in the circumstances of this application, of itself capable of amounting to an admissible public interest. In excluding such a public interest from its consideration and confining itself to an assessment of the demand for the limestone product, it seems to me the Assembly failed to take account of a material consideration, thus acting irrationally in the Wednesbury sense, and the decision should not stand. I do not say that demand was not relevant. It was relevant, for example, to the question whether in commercial reality quarrying operations would ever take place. That, however, was not the Assembly’s approach. Their approach was that the public did not need the product.

The Assembly’s observations upon the timescale to disturbance seem to me to be linked to the erroneous view that considerations of demand prevailed. In fact the claimants had placed before the Assembly a detailed timetable commencing with the creation of the alternative environment and ending with the recommencement of extraction in 2008 or 2009. By then, the claimants were advised, Pen yr Henblas would replace other sources which had been worked out in the meantime. Mr Jarman sought to support the decision with the argument that the claimants should have completed the construction of the new great crested newt environment before making their licence application. To that extent the application was premature. I regard the argument as untenable. The applicants could not be expected to make a substantial investment of time and money in advance of a decision whether a licence would be granted. Had the evidence been that the claimants’ intentions were based on speculation or were hypothetical, however, it would, as I have indicated in paragraph 115 above, have been another matter.

The claimants argue that the Regulations do not apply to Pen-yr-Henblas’ great crested newt population at all and seek a declaration to that effect. It is submitted it is not the purpose of the Directive or the Regulations to provide protection to habitats which are artificially created by commercial use; such habitats are not natural within the meaning of Article 1(b) of the Directive.

‘Natural habitats’ are defined in Article 1 of the Directive as ‘terrestrial or aquatic areas distinguished by geographic, abiotic and biotic features entirely natural or semi-natural’. By regulation 2(2) of the 1994 Regulations, ‘Unless the context otherwise requires, expressions used in these Regulations and in the Habitats Directive have the same meaning as in that Directive’.

The ‘habitat’ with which the Assembly was concerned was a long standing quarry in which natural water was allowed, largely by inactivity, to accumulate, thus creating over a period of several years an environment suitable for the sustenance of a newt population. For present purposes, I take the term ‘semi-natural’ to mean partly by the activity and effect of nature and partly by the activity and effect of man. In my judgment, the environment created at Pen-yr-Henblas was without question semi-natural within the meaning of the Directive and the Regulations. That the quarrying activity which enabled the habitat to form was the product of a commercial activity is, it seems to me, immaterial. The motive or purpose of the intervention of man which contributed to the creation of the habitat is irrelevant to the question whether a ‘semi-natural’ habitat was, in the result, created.

I see no grounds for the declaration sought.

For the reasons summarised in paragraphs 116 and 117 above, the decision of the defendant notified on 14 February 2003 will be quashed. The application should be considered further by the Assembly in the light of this judgment.