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Cite as: [2003] EWHC 819 (Admin)

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Neutral Citation Number: [2003] EWHC 819 (Admin)
CO/2776/2002

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

Royal Courts of Justice
Strand
London WC2
26 March 2003

B e f o r e :

MR JUSTICE COLLINS
____________________

THE QUEEN ON THE APPLICATION OF BOWN (CLAIMANT)
-v-
SECRETARY OF STATE FOR TRANSPORT (DEFENDANT)

____________________

Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)

____________________

MR J PERERA (instructed by Earthrights, Essex CM22 6PJ) appeared on behalf of the Claimant
MR T MOULD AND MR T BULEY (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Defendant
Wednesday, 26 March 2003

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

  1. 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.
  2. 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.
  3. The relevant conditions in the planning permission were Nos.5 and 8. 5, so far as material, reads under the heading "Ecological monitoring":
  4. "Within three months of the date of this permission details of an ecological monitoring and mitigation scheme shall be submitted to and approved in writing by the Country Planning Authority. Such approved scheme shall be implemented upon approval in writing and shall continue for a period of five years after construction of the development hereby permitted. The scheme shall address the following:"

    There are then set out six matters, including:

    "Effect on otters and badgers.
    Impact of construction noise on the adjoining SSSI. Ongoing disturbance of over-wintering wetland birds. Counts of birds using the estuary in the vicinity of the development.
    Changes to the distribution and extent of inter-tidal habitat in the vicinity of the development and changes to the plant communities of the saltmarsh."

    The reason for the requirements in this condition was stated to be:

    "To ensure adequate recovery of habitats and species during and after development and prompt action to remediate any failure to recover."
  5. Condition 8 is headed "Protection of the Salt Marsh". It reads:
  6. "No development shall take place until details of a scheme to protect saltmarsh habitat during and after construction has been submitted to and agreed in writing by the Country Planning Authority. The scheme shall include monitoring of the condition of the saltmarsh during and after construction."

    The reason given for that is:

    "To minimise damage to the saltmarsh, which is a nationally important habitat."
  7. 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.
  8. 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.
  9. 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.
  10. 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.
  11. 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.
  12. Article 4 of the Wild Birds Directive (which is for our purposes the most material of the Articles) provides as follows:
  13. "1 The species mentioned in Annex I shall be the subject of special conservation measures concerning their habitat in order to ensure their survival and reproduction in their area of distribution.
    In this connection, account shall be taken of:
    a. species in danger of extinction;
    b. species vulnerable to specific changes in their habitat;
    c. species considered rare because of small populations or restricted local distribution;
    d. other species requiring particular attention for reasons of the specific nature of their habitat.
    Trends and variations in population levels shall be taken into account as a background for evaluations.
    Member States shall classify in particular the most suitable territories in number and size as special protection areas for the conservation of these species, taking into account their protection requirements in the geographical sea and land area where this Directive applies.
    2 Member States shall take similar measures for regularly occurring migratory species not listed in Annex I, bearing in mind their need for protection in the geographical sea and land area where this Directive applies, as regards their breeding, moulting and wintering areas and staging posts along their migration routes. To this end, Member States shall pay particular attention to the protection of wetlands and particularly to wetlands of international importance.
    3 Member states shall send the Commission all relevant information so that it may take appropriate initiatives with a view to the coordination necessary to ensure that the areas provided for in paragraphs 1 and 2 above form a coherent whole which meets the protection requirements of these species in the geographical sea and land area where this Directive applies.
    4 In respect of the protection areas referred to in paragraphs 1 and 2 above, Member States shall take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting the birds, in so far as these would be significant having regard to the objectives of this Article. Outside these protection areas, Member States shall also strive to avoid pollution or deterioration of habitats."
  14. 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):
  15. "At the request of Government, the NCC has identified sites of international importance for nature conservation for designation under both the convention Ramsar Convention and EEC Birds Directive. Identification and evaluation of these areas is a continuing process. To date a total of 218 candidate SPAs and 154 candidate Ramsar sites have been identified. It is the NCC's view that the presently proposed SPA network is the minimum of sites needed to carry through the objectives of this aspect of the Birds Directive. Several other areas have been proposed by various conservation bodies as being likely to qualify, or have been tentatively identified by NCC to fill gaps in coverage. As further information is obtained, either the eligibility of these will be confirmed or they will be deleted from the list."

    At paragraph 5.14 it is said:

    "The proposed suite of SPAs represents an irreducible minimum, and will need urgently to be complemented by land-use measures in the wider countryside. Some relevant examples are given. Our trusteeship of the environment will be promoted by the network of Special Protection Areas and presented in this report, together with recommendations for wider countryside actions which will be amplified later."

    Then there is set out in two tables the proposed and designated SPAs. The first table includes sites which definitely qualify for either Ramsar and/or SPA status. Table 3.2 includes those sites for which information is still being reviewed. The Taw-Torridge Estuary is included as a site which, in the view of the authors of this report, definitely qualifies as an SPA and is included in Table 3.1.

  16. 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:
  17. "In this book are listed 256 such areas [specially favoured sites which support vulnerable species].
    They are all of international importance and qualify for protection under the European Communities Directive on the Conservation of Wild Birds, and many also under the Ramsar Convention on Wetlands of International Importance. They are maintained wherever possible through sympathetic land management, with core areas notified as Sites of Special Scientific Interest...
    This list is not the last word: new sites of importance could be added as survey work progresses. All the areas in this book have been carefully validated to confirm that they do support internationally important bird populations, and this assessment must continue to be kept under review."

    One of the sites included is the Taw-Torridge Estuary. A description is given of it. It is said that the estuary supports nationally important numbers of wintering curlew. It goes on:

    "In the five-winter period 1985/86 to 1989/90 average peak counts included 20 greenshank and 1400 curlew (2% of British). Notable also are regular large numbers of wintering wigeon, teal, ringed plover, golden plover and grey plover. Average peaks for each of these species approach the 1% British level. Other wintering species include little egret, spoonbill, hen harrier, merlin, peregrine, green sandpiper and common sandpiper."

    It then continues:

    "This estuary is largely unspoilt, but development proposals for marinas and a holiday village, may threaten intertidal areas and also increase the demand for leisure and recreational activities within the estuary. New and expanding activities suggest the need for controls and a management scheme to resolve conflicting demands for intertidal areas and open water."

    The area of the suggested SPA is said to be 1,337 hectares. That was the position in 1992.

  18. 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:
  19. "The presence of a protected species is a material consideration when a local planning authority is considering a development proposal which, if carried out, would be likely to result in harm to the species or its habitat. Local authorities should consult English Nature before granting planning permission. They should consider attaching appropriate planning conditions or entering into planning obligations under which the developer would take steps to secure the protection of the species, particularly if a species listed in Annex IV to the Habitats Directive would be affected. They should also advise developers that they must conform with any statutory species protection provisions affecting the site concerned."

    There were then listed in PPG9 the existing SPAs or those which the Government had proposed to designate as SPAs. They did not include the Taw-Torridge Estuary.

  20. 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:
  21. "A site which has been designated as a Special Protection Area (SPA), or has been selected as a candidate SPA, based on ornithological criteria (similar to, but not equal to, C1-C6) in recognised use for identifying SPAs."

    That is somewhat expanded upon at page 18 of the book, where this is said:

    "Application of this criterion is confined to designated SPAs, and to sites which have been selected as SPAs in the framework of a national inventory which has been used by government agencies as such (although not necessarily officially accepted). This criterion should be applied only to a minority of exceptional cases where it would be inadvisable to exclude the sites concerned from the IBA inventory."

    Within the various categories there is included the Taw-Torridge Estuary with an area of 1,750 hectares which is said to fall within C7. The problem with that is that it does not fall within what are said to be the criteria set out in the body of the document, because it is not a designated SPA, nor has it been selected as an SPA within the framework of the national inventory used by government agencies as such. We know that PPG9 is the document upon which the Government rely; and it is not within PPG9.

  22. 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:
  23. "Firstly, I should point out that there is no such thing as candidate SPA status. However, the Taw-Torridge has previously been listed as a potential SPA in Stroud, DA, Mudge, GP & Pienkowski MW 1990. Protecting internationally important bird sites. A review of the EEC Special Protection Area network in Great Britain. NCC, Peterborough, presumably because it was included in earlier Important Bird Area (IBA) lists, as there is no information within Stroud et al (1990) to show why the site was considered to meet SPA criteria. In the 1989 IBA list the site qualified for IBA status because of its 'importance for wildfowl and waders (high species diversity but relatively low numbers)'. The supporting data showed an "average maximum" count of 2,921 Golden Plovers Pluvialis apricaria (although no count period is given) which suggests the site would have met SPA selection stage 1.1 at that time (ten years before the guidelines were published).
    The 1992 IBA list cites the only qualifying species as Curlew Numenius arquata, which occurred in numbers of national importance (5 year peak mean 1985/86-1989/90 of 1,400 birds). Similarly, Curlew is the only qualifier in the IBA 2000 list (count as at 1995 = 1,000 birds). Neither of these Curlew counts, or any other recent data that English Nature is aware of, meet the criteria in the published SPA selection guidelines.
    As part of the UK SPA Review, the RSPB recently requested that the Taw-Torridge Estuaries be considered as a potential SPA. However, after further discussion the RSPB have withdrawn their request for the site to be considered and now accept that there are insufficient data to support the case. RSPB have requested that English Nature reviews the status of the site within three years, in the light of future data collection."

    The reference there to the selection guidelines might have remained obscure were it not for the industry of the claimant's representatives, because there has been produced a substantial two-volume publication, volume 1 of which is headed "UK SPA Network: its scope and content". This was published by the Joint Nature Conservation Committee ("JNCC") in 1990. Its introduction states:

    "JNCC is responsible to the UK Government for research and advice on nature conservation at both UK and international levels, on behalf of the Countryside Council for Wales, English Nature and Scottish National Heritage, together with independent members and representatives from the Countryside Agency and Northern Ireland.
    The European Union's Directive on the conservation of wild birds requires the selection of Special Protection Areas (SPAs) for certain birds. This review of the UK SPA Network has been undertaken by the JNCC together with the Environment and Heritage Service of Northern Ireland, the Countryside Council for Wales, Scottish Natural Heritage and English Nature.
    SPA suites have been identified for each of 103 bird species. These collectively form the UK's SPA network - a contribution to the European Union's Natura 2000 network of protected sites. The UK SPA network is extensive, contains a wide variety of habitats and includes 243 sites throughout the UK. The network will make an enduring contribution to the conservation of Britain's birds as well as those migrating to other countries."

    There is an executive summary at the beginning of the document. This states, so far as material:

    "The SPA network presented in this report is the result of a review undertaken by the UK Joint Nature Conservation Committee together with the Environment and Heritage Service of Northern Ireland, the Countryside Council for Wales, Scottish Natural Heritage and English Nature. The network of sites has been formally recommended to government by the Joint Committee.
    ...
    This review updates the assessment of UK SPAs published in 1992. Since that time there has been a range of new ornithological surveys undertaken throughout the UK, especially in the uplands and related to a number of species that were highlighted as being poorly represented in the national network proposed in the early 1990s. In view of new information and possible gaps, Government requested JNCC to review the UK SPA network with a view to recommending a definitive list of sites, identified against explicit selection guidelines."

    It noted, too, that there were minor differences between the UK list of SPAs and Bird Life International's Important Bird Areas inventory. This, it was said, is unsurprising - indeed, it is to be expected - since different selection guidelines, criteria and priorities have been used to identify the respective site networks. It concludes:

    "The UK SPA list more accurately reflects the obligations under the Birds Directive."

    We find that in Part 3 of the document there are set out the guidelines. Stage 1(1) is said to be an area used regularly by 1% or more of the Great Britain (or in Northern Ireland, the all-Ireland) population of a species listed in Annex I of the Birds Directive in any season; (2) is said to be an area used regularly by 1% or more of the biogeographical population of a regularly occurring migratory species (other than those listed in Annex I) in any season; (3) is said to be an area used regularly by over 20,000 waterfowl or 20,000 sea birds in any one season. Then (4) reads:

    "An area which meets the requirements of one or more of the Stage 2 guidelines in any season, where the application of Stage 1 guidelines 1, 2 or 3 for a species does not identify an adequate suite of most suitable sites for the conservation of that species."

    Those guidelines clarify what is set out in the letter of 4 April 2001 to which I have already referred. It is clear that it is indeed to those guidelines that the letter is referring.

  24. 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.
  25. 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:
  26. "There is evidence that FoE [Friends of the Earth] have campaigned for Taw-Torridge Estuary to be designated as an SPA (for the protection of some species of birds) ... , but there is no evidence that these campaigns are likely to result in relevant designation. It is not the function of this inquiry to resolve such matters, and I take particular note of the fact that the appropriate government agencies give no cause for me to believe that the sites are even potential candidates for designation. It follows that there is no evidence of a breach of the UK's obligation under Council Directives."
  27. 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.
  28. 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:
  29. "The Commission's view"
  30. - that the obligations arising under Articles 3 and 4 of the Wild Birds Directive require specific measures to be taken in certain habitats of wild birds -

    "must be upheld on this point. Articles 3 and 4 of the directive require Member States to reserve, maintain and re-establish habitats as such, because of their ecological value. Moreover, it follows from the ninth recital in the preamble to the directive that the preservation, maintenance or restoration of a sufficient diversity and area of habitats is essential to the conservation of all species of birds. The obligations on Member States under Articles 3 and 4 of the directive therefore exist before any reduction is observed in the number of birds or any risk of a protected species becoming extinct has materialised."

    Then in paragraph 34 we find:

    "The Spanish Government explains that the new road is necessary to improve access to the town of Santoña. Also, the new route is the best of various possible alternatives, mainly because it affects only a small proportion of the total surface area of the marshes.
    35. These explanations cannot be accepted. As the Court stressed in Case C-57/89 Commission v Germany, although Member States do have a certain discretion with regard to the choice of the territories which are most suitable for classification as special protection areas, they do not have the same discretion under Article 4(4) of the directive in modifying or reducing the extent of those areas.
    36. The court finds in this connection that the construction of the new section of road C-629 between Argoños and Santoña involves a reduction in the surface area of the marshland, an effect that, moreover, is aggravated by the erection of a number of new buildings near this new section of road. These operations have resulted in the loss of refuge, rest and nesting areas for birds. In addition to the disturbances caused by the road works, the action in question has modified the ebb and flow of the tide, causing this part of the marshland to silt up.
    37. Since, regard being had to the considerations of principle set out above, such action cannot be justified by the need to improve access to the municipality of Santoña, the complaint must be upheld."

    That makes the point that the provisions of the Directive cannot be off-set by arguments of economic necessity or considerations of balance between what is required for a particular town in the interests of its inhabitants as against what is required to protect the birds in an area, which clearly ought to be the subject of an SPA. It is incidentally to be noted that in the context of that case there was no argument, and indeed there could be no argument, but that it concerns an area which quite clearly qualified as an SPA.

  31. 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:
  32. "It follows in my view that IBA89 not only constitutes scientific evidence, the necessity for which Germany appears to accept in principle, but was expressly designed for use in the application of the Directive. It is not itself conclusive or constitutive of a legal obligation, but can be relied upon in demonstrating the extent of a Member State's compliance therewith, both as regards the general obligation and specific sites. As regards an individual site, it is open to a Member State to produce better scientific evidence to show that it is not amongst the 'most suitable' for the conservation of Annex I species. Similarly, it is open to a Member State to produce contrary evidence to prove that the total figures for SPAs, in number and in area, which arise from IBA89, or from any other such list upon which the Commission relies, are erroneous."

    The court effectively approved that approach. Paragraph 55 (page I-3069) states:

    "It must first be observed that, contrary to the contention of the Kingdom of the Netherlands, Article 4(1) of the Directive requires Member States to classify as SPAs the most suitable territories in number and size for the conservation of the species mentioned in Annex I, an obligation which it is not possible to avoid by adopting other special conservation methods.
    56. It follows from that provision, as interpreted by the Court, that if such species occur on the territory of a Member State, it is obliged to define inter alia SPAs for them."

    In paragraph 60 the court says:

    "Moreover, while the Member States have a certain margin of discretion in the choice of SPAs, the classification of those areas is nevertheless subject to certain ornithological criteria determined by the Directive."

    There is reference to paragraph 26 of Commission v Spain. Then (in paragraph 65) the court says:

    "Third, it should be observed, that the Netherlands Government, while not questioning the scientific reliability of IBA 89, contends that the application of the criteria on which that report is based cannot, in view of their general character, lead to unequivocal results as regards the classification of SPAs. It has maintained that, although it applied the same criteria as those on which IBA 89 is based, it arrived in its inventory of sites potentially classifiable as SPAs as a result which was very different from that indicated by that report. At the hearing, however, it admitted that its criteria differed from those used in IBA 89.
    66. In that regard, it is significant that the Kingdom of the Netherlands has to this very day failed to produce a single document from the national procedure for classifying SPAs which indicates the criteria which governed the designation of SPAs in that Member State.
    69. In the circumstances, IBA 89 has proved to be the only document containing scientific evidence making it possible to assess whether the defendant State has fulfilled its obligation to classify as SPAs the most suitable territories in number and area for conservation of the protected species. The situation would be different if the Kingdom of the Netherlands had produced scientific evidence in particular to show that the obligation in question could be fulfilled by classifying as SPAs territories whose number and total area were less than those resulting from IBA 89.
    70. It follows that that inventory, although not legally binding on the Member States concerned, can, by reason of its acknowledged scientific value in the present case, be used by the Court as a basis of reference for assessing the extent to which the Kingdom of the Netherlands has complied with its obligation to classify SPAs."
  33. 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:
  34. "It should also be noted that the inventory of areas which are of great importance for the conservation of wild birds, more commonly known under the acronym IBA (Inventory of Important Bird Areas in the European Community) includes the area in question. The Court of Justice has held that this inventory, although not legally binding on the member states concerned, contains scientific evidence making it possible to assess wether a Member State has complied with its obligation to classify as SPAs the most suitable territories in number and size for conservation of the protected species.
    26. It follows from the general scheme of Article 4 of the birds directive that, where a given area fulfils the criteria for classification as an SPA, it must be made the subject of special conservation measures capable of ensuring, in particular, the survival and reproduction of the bird species mentioned in Annex I to that directive."

    Paragraph 45 dealt with a submission that Article 6 of the Habitats Directive could apply so as to permit some sort of development provided particular criteria were met. But the court said that could not be done if there had been a failure to designate as an SPA. Its reasons were as follows:

    "45. It follows that, on a literal interpretation of that passage of Article 7 of the habitats directive, only areas classified as SPAs fall under the influence of Article 6(2) to (4) of that directive.
    46. Moreover, the extent of Article 7 of the habitats directive states that Article 6(2) to (4) of that directive replace the first sentence of Article 4(4) of the birds directive as from the date of implementation of the habitats directive or the date of classification by a Member State under the birds directive, where the latter date is later. That passage of Article 7 appears to support the interpretation to the effect that the application of Article 6(2) to (4) presupposes the classification of the area concerned as an SPA.
    47. It is clear, therefore, that areas which have not been classified as SPAs but should have been so classified continue to fall under the regime governed by the first sentence of Article 4(4) of the birds directive."
  35. 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.
  36. 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.
  37. 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.
  38. 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.
  39. 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.
  40. Regulation 44 provides as follows:
  41. "(1) Regulations 39, 41 and 43 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
    (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;
    (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."

    The appropriate authority is stated by the Regulations to be the agriculture minister (now the Secretary of State for DEFRA).

  42. 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.
  43. 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.
  44. The Inspector's overall conclusion on the Bridge Order is contained in paragraph 7.53 of his report in these words:
  45. "I have taken into account all environmental information put to me in writing and at the inquiry, including the Environmental Statement produced in accordance with EC Directive No.97/11/EC, comments from statutory consultees, and representations made by all other persons about the likely effects of the Order. Weighing the totality of the disbenefits of the environmental effects of the Order, namely the impact of the bridge's intrusion into the Taw Estuary SSSI, and any possible effect on the risk of flooding in the area, against the overwhelming benefit to the predicted reduction in town centre traffic congestion, together with the expected economic benefits accruing to the North Devon Sub-Region, I come to the conclusion that none of the objections to the scheme on environmental, or on any other grounds, are sufficiently substantial to overcome the merits of the proposal. They do not materially affect my final recommendation."

    In reaching that conclusion he dealt with otters specifically (in paragraph 7.49). He said this:

    "It seems to me that the principal issue with regard to protected species under threat, on which the first part of this objection stands or falls, is whether or not it has been shown that actual otter resting places would be directly threatened by the scheme."

    It is not surprising that that was his approach since that was the way in which the matter was put before him by Friends of the Earth. He continues:

    "This may or may not be the case now, but I note from paragraph 5.56 above that this had been considered by the statutory body responsible for SSSIs who require mitigation measures to be undertaken to remove the threat before construction work begins, and that such action is a condition of the planning consent. It cannot be assumed that such conditions will not be observed and for this reason I conclude that this objection does not stand."
  46. 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.
  47. 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.
  48. 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.
  49. 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.
  50. 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.
  51. MR JUSTICE COLLINS: I know that there is in existence an assessment which I have not yet seen.
  52. MR BULEY: My Lord, a figure has been agreed of £2,268.75.
  53. 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?
  54. 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.
  55. 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.
  56. MR PERERA: I am told we are prepared to agree yesterday's and today's costs, because that is really the ---
  57. 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 ---
  58. MR BULEY: I have thought, but I may be wrong, this was only in respect of ---
  59. MR JUSTICE COLLINS: If it is only in respect of post-legal aid then it may be that I can make the necessary order.
  60. 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 ---
  61. MR JUSTICE COLLINS: That is only the non-legal aid period.
  62. 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.
  63. 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.
  64. MR PERERA: I am told that the form of order should refer to section 11 of the Access to Justice Act.
  65. MR JUSTICE COLLINS: You can be responsible for that if the need arises. Unless I am told I cannot do that.
  66. 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.
  67. 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.
  68. 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.
  69. MR JUSTICE COLLINS: It was referred to in the letter but it was not actually produced.
  70. 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 ---
  71. MR JUSTICE COLLINS: But it was not determinative. I would still have found the same based on the April letter.
  72. MR PERERA: I think if that is the case then I cannot pursue the application I am pursuing.
  73. 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.
  74. MR PERERA: If that is the case I cannot pursue the application.
  75. 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.
  76. MR PERERA: You understand the application I was going to make.
  77. 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.
  78. MR PERERA: That being the case that forces me to apply for permission to appeal, which I understand ---
  79. 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.
  80. MR PERERA: Clearly your view.
  81. 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.


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