Bown v Secretary of State for Transport [2003] EWCA Civ 1170

[2003] EWCA Civ 1170
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE COLLINS)
Venue Royal Courts of JusticeDate Thursday 31 st July 2003
Strand,
London, WC2A 2LL
Before
LORD PHILLIPS OF WORTH MATRAVERS, M.R.LORD JUSTICE WALLERLORD JUSTICE CARNWATH
Between
ANTHONY BOWNAppellantSECRETARY OF STATE FOR TRANSPORTRespondent
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Robert McCracken QC and Jeremy Pike (instructed by Earthrights) for AppellantRichard Drabble QC and John Litton (instructed by Treasury Solicitor) for Respondent
JudgmentAs Approved by the CourtCrown Copyright ©

Introduction

[1]This is the judgment of the Court.[2]This appeal concerns a decision of the Secretary of State, by letter dated 17th April 2002 following a public inquiry, to confirm various orders in relation to a scheme known as the Western Bypass of Barnstaple in North Devon. The only live issue relates to the environmental effect of a proposed bridge across the Taw estuary. In summary, the complaint is that the Secretary of State failed to treat the Taw and Torridge Estuary ( “the Estuary”) as having the status of a Special Protection Area for Birds (“SPA”), as required by EC law. The selection of SPAs is governed by Directive 79/409 on the Conservation of Wild Birds (“the Wild Birds Directive”).[3]Planning permission for the bypass was granted by the Devon County Council in November 1999. In July 2000, the present orders were made under the Highways Act 1980 for the bridge and side roads, and under the Acquisition of Land Act 1981 for the compulsory purchase of land needed for the scheme. There were no statutory objections (that is, from owners of interests directly affected), but nine non-statutory objections. There was a public inquiry, which lasted five days in June 2001. The inspector’s report (submitted in October 2001) ran to 61 pages, and dealt in detail with the many issues which had been raised. He was satisfied that there was a need for the bypass. He accepted the authority’s case that Barnstaple suffered from “acute traffic congestion”, which was a “restriction on the economic growth of the area”, and that the proposed bypass was the only satisfactory solution. He rejected objections based on a number of grounds, including inadequacy of the authority’s Economic Impact Study and Environmental Assessment, incompatibility with EC Directives, and adverse effects on public safety. Overall, he found that the “cumulative weight” of the arguments pointed to a “clear conclusion” in favour of the Council’s case, and recommended confirmation of the orders. The Secretary of State generally accepted the inspector’s conclusions and recommendations.[4]The SPA question arose as part of legal submissions made by the main objector, the North Devon Group of Friends of the Earth. They submitted that the Estuary should have been classified as a SPA, if Government had fulfilled its obligations under the Directive; and that, in such circumstances, the case-law of the European Court of Justice required it to be treated as if it were so designated. Among other material, the Inspector had before him a letter from English Nature (to which we shall refer further below) explaining why the Estuary was not a classified SPA. He concluded on this point: “There is evidence that FoE 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.” (para 3.27)[5]In his decision-letter, the Secretary of State referred to post-inquiry correspondence, including a letter dated 11th September 2001 from solicitors for Friends of the Earth. This had enclosed a copy of a 1990 study by the Nature Conservancy Council, listing the Estuary as a potential SPA SPA. In response the authority stated that the Estuary had been formally removed from the list of classified and potential SPA sites and did not appear in the list in Annex B of the 1994 PPG9.The Secretary of State concluded that there was nothing in the post inquiry correspondence to persuade him that the Estuary was likely to be designated as an SPA; and that there was no evidence of a breach of the UK's obligations under Council Directives. (We shall refer further below to the 1990 study and the 1994 PPG9.)[6]Mr Bown challenged the decision under the relevant provisions of the Highways Act 1980 and the Acquisition of Land Act 1981, which permit such a challenge on legal grounds only. His interest is as a local resident and an objector at the inquiry. He lives near South Molton on the Taw River. He appeared at the inquiry, and also supported the case of the North Devon Friends of the Earth. He is an active member of the Green Party, and stood as candidate for that party in the North Devon constituency. No issue arises as to his standing in relation to this challenge.[7]On 26th March 2003, the application was dismissed by Collins J. (He also rejected a separate objection related to the effect on otters, under another Directive; that point is not pursued in the appeal.) Permission to appeal to this court on the SPA point was granted at a with notice hearing, following an initial refusal on the papers.[8]The hearing of the appeal has been expedited, having regard to information obtained from the Devon County Council as to the current status of the scheme. In a letter dated 26th June 2003, the County Solicitor has stated that it is the only major highway scheme in the County Council’s current Transport Plan, and “one of the very few which the Department of Transport has approved in such Plans countrywide.” He describes it, accordingly, as “of more than local importance”. He says that all preliminary work has been done, and that, subject to the legal challenge, it would be hoped to invite bids before the end of July 2003, with a view to letting the contract by the end of December and beginning work in April next year. He adds:
“If these target dates slip as a result of continuing legal action then, inevitably, prime working time will be lost and a longer contract period will be needed.”

The Wild Birds and Natural Habitats Directives

[9]The Wild Birds Directive required Member States to bring into force measures to implement it within two years of its notification (that is, by April 1981). One of its purposes was to preserve, maintain or restore a sufficient diversity of areas of habitat to conserve all species of wild birds, with particular focus on those under pressure or declining in numbers and those which were regarded as endangered species.[10]Article 4 provided as follows:
“(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.”
Annex I species include golden plover, but not curlew. 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.[11]At the time no specific legislation was introduced in this country to give effect to the Directive. It seems that the approach adopted initially was to provide protection through the town planning system and by designation of Sites of Special Scientific Interest (“SSSI”) under the Wildlife and Countryside Act 1981 (see Bell & McGillivray: Environmental Law 5th Ed p 643). Although there was no statutory procedure, we have been told that in practice classification by the Secretary of State was preceded by publication of a proposal and public consultation (see, for example, the procedure described in R v Secretary of State for the Environment, ex p RSPB [1997] QB 206, 224-5 ECJ). According to the list attached to the Nature Conservancy Council’s study in 1990, some 30 sites had been classified by that time in Great Britain as a whole, the first dating from 1982.[12]In 1992, the Habitats Directive (Council Directive 1992/43) introduced various additions and modifications to the European law governing nature conservation. It introduced a new procedure for the designation of Special Areas of Conservation (“SAC”), and made provision for such areas, as well as SPAs, to be incorporated into a “coherent European ecological framework”. In relation to classified SPAs, Article 7 modified the obligation under Article 4(4) of the Wild Birds Directive (see above) to bring it into line with the new regime imposed by Article 6 in relation to the SACs. This requires appropriate conservation measures, including management plans, and steps to avoid deterioration (6(1)(2)). It also establishes rules for projects “not directly connected with or necessary for the management of the site but likely to have a significant effect thereon…”. Generally such a project may only be permitted, if after detailed assessment, it “will not adversely affect the integrity of the site concerned…” (6(3)). Article 6(4) provides a limited exception for projects carried out “for imperative reasons of overriding public interest”, where there are no alternatives, and subject to compensatory measures.

ECJ judgments

[13]We have been referred to a number of judgments of the European Court of Justice, clarifying the obligations of Member States under the Directives. They involved Commission enforcement proceedings against, respectively, Germany (1989), Spain (1993), the Netherlands (1998) and France (1999 and 2000).[14]The first, Commission v Germany Case C-57/89 [1991] ECR I-883, underlined the stringent nature of the control implied by classification as an SPA. It was held that Member States had no general discretion to modify or reduce the extent of a classified SPA. Classification implied a declaration by the state that those areas contain the most suitable environments for Annex I species; accordingly the power to reduce such areas “can be justified only on exceptional grounds”. Such grounds must correspond “to a general interest which is superior to the general interest represented by the ecological objective of the directive”, and would not include purely economic requirements (para 20-22). (That decision preceded the introduction of the slightly more flexible regime under the Habitats Directive Article 6: as to which, see the RSPB case (above) at p 256-8).[15]The second case, Commission v Spain Case C-355/90 [1993] ECR I-4221 established the principle that, where there has been a failure to classify a suitable area, in breach of Article 4, the requirements of Article 4(4) must still be complied with (p I-4252, 4277).[16]Another passage in the judgment (at p I-4275) was also relied on by Mr McCracken, as showing that the obligation under Article 4 was not one that can be performed “gradually”; it had to be performed within two years of the Directive. Mr McCracken suggested that the UK Government failed to fulfil its obligation under the Directive until the 1994 regulations. However, this point appears to us to be based on a misunderstanding of the significance of those regulations. As already explained, classification of SPAs began in this country in 1982. The 1994 regulations were not essential to that process. The purpose of the regulations was to bring the SPA system within the new regime established by Habitats Directive. Annex B to PPG9 shows the number of SPAs in England which had already been formally classified by 1994.[17]Commission v Netherlands Case 3-96 [1998] ECR I-3031 is of more direct relevance, particularly as to the importance of the 1989 European wild bird study known as IBA 89 (to which we shall return below). It concerned wetlands in the Netherlands, which the Dutch authorities had failed to classify, although apparently meeting the criteria for SPAs. In his Opinion, Advocate-General Fennelly responded to an argument on behalf of Germany that IBA89 had no legal standing. He said that this confused “the legal obligation and the evidence required to prove non-compliance”. He continued:
“49…. IBA 89 was prepared for the relevant Directorate-General of the Commission and in co-operation with Commission and national experts; the inventory was at least partly designed to assist the Member States in their implementation of the Directive… 50. 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.”
[18]The judgment of court was to similar effect (p I-3069-72). The Court emphasised the limited nature of the discretion given to member states. “… 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.” (para 60)[19]They also confirmed the importance of IBA 89, in the absence of other evidence:
“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.”
[20]Commission v France Case 166/97 [1999] ECR I-1719 concerned the Seine estuary, part of which had been classified as an SPA. In July 1995, the Commission had issued a “reasoned opinion” alleging insufficiency, and requiring the necessary measures to be taken within two months. The French government accepted that the area was insufficient, and justified its failure to extend it until November 1997 on the basis of the need for local consultation. This argument was rejected, by reference to the well-established principle that a Member State may not plead “provisions, practices or circumstances existing in its internal legal system” to justify failure to comply with a directive (p I-1736 para 13).[21]There was a separate issue whether there had been a failure to comply with Article 4(4) in relation to an area outside the classified SPA, which had been identified in a French study (“the ZICO study”) as an important area for bird conservation. The court reaffirmed the principle from the Spain case that the obligations under Article 4(4) must be complied with - “… even where the area in question has not been classified as an SPA, provided that it should have been so classified.” (para 38) However, it accepted France’s case that the ZICO study was “no more than an initial survey”, and that the Commission had failed to prove “to the requisite legal standard” that the area in question was “one of the most suitable territories for the conservation of birds” (para 42-47).[22]Commission v France Case 374/98 [2000] ECR I-10799 involved an area which was important for Annex I species, particularly Bonnelli's eagle. The court confirmed the significance of IBA 89: “… 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 whether 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.” (para 25) It also reiterated the correct approach to potential SPAs: “ 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.” (para 26)[23]However, it took this reasoning a stage further. Following the lead of the Advocate General, it decided that, although such a potential SPA was subject to the Article 4 regime, the member state could not, before classification, take advantage of the more flexible regime allowed by Article 6 of the Habitats Directive (see above): “47. It is clear 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… 49. Thus, the fact that, as the case law of the Court of Justice shows (see in particular Case 355/90 Commission v Spain [1993] ECR I 4221 para 22) the protection regime under the first sentence of Article 4 (4) of the birds directive applies to areas that have not been classified as SPAs but should have been so classified does not in itself imply that the protection regime referred to in Article 6(2) to (4) of the habitats directive replaces the first regime referred to in relation to those areas.[24]The Court accepted that the SPA regime was “stricter” than that laid down by Article 6 of the Habitats Directive; but considered that the difference was justified by the principle that a member state could not derive an advantage from its failure to comply with its community obligations.

Implementation in England

[25]The Habitats Directive was given effect in this country by the Conservation (Natural Habitats etc) Regulations 1994 (SI 1994/2716l) (“the 1994 Regulations”). It made provision for the designation of SACs. It made no specific changes to procedure for classifying SPAs. However, it required the Secretary of State to compile and maintain, “in such form as he thinks fit”, a register of “European sites” in Great Britain (reg 11). "European site" was defined as one of five categories of site under European requirements, including SPAs (reg 10(1)(d)). The SPA must be included in the register as soon as it is classified (reg 11(2)(d)). It must be removed if it ceases to be so categorised (reg. 11(4)(b)). When a site is included in the register, the “appropriate nature conservation body” must be notified immediately (reg 12); and they must notify owners and occupiers of land within the site (reg 13). An entry in the register relating to a European site is a local land charge (reg 14).[26]Also in 1994 there was published the Government’s Planning Policy Guidance note No.9 (“PPG 9”), on nature conservation. In a section dealing with “Designated Sites” (para 12ff) it referred to various designations under European and domestic law, including SPAs. Annex B contained a “list of classified and potential SPAs… as at September 1994.” That related to England only, and showed that at that time 50 sites had already been classified as SPAs, and 35 others were “potential” SPAs.The Note advised: “For the purpose of considering development proposals affecting them, potential SPAs… included in the list sent to the European Commission should be treated in the same way as classified SPAs…” (para 13) According to a note to Annex B, the list of potential sites was subject to review by the JNCC; and a revised list would be published when the outcome of the review was announced. We have not been referred to any such revised list. It seems, therefore, that the 1994 PPG represents the most recent formal Government advice to planning authorities on the issue of potential SPAs. [The JNCC (the Joint Nature Conservation Committee) is a committee established, under the Environment Protection Act 1990 s 128(4), by the two bodies set up under that and later Acts, to advise the Secretary of State on conservation issues (English Nature and the Countryside Council for Wales). Up to date information on SPAs is available on the JNCC website, which explains the role of the JNCC, as “the Government’s wildlife adviser”, describes the guidelines for selection of SPAs; and gives a full list of classified SPAs (currently 242 in the UK). It defines “SPA classification” as “the process of formally notifying SPAs to the European Commission”.][27]As to the Register, we have been told that it is “essentially a filing cabinet of A3 folders in polythene wallets for each site plus a 2-3 page explanatory document”. Both DEFRA and English Nature keep identical sets of the Register available for public inspection. Updates are made by DEFRA who also send new details or entries to the Commission in Brussels.

Evidence relating to the Taw and Torridge Estuary

[28]The best information available to the inspector, as to consideration of the Estuary as a potential SPA, was contained in a letter, dated 4th April 2001, from English Nature to the North Devon Friends of the Earth. In answer to the question:
“On what criteria the estuary was proposed for candidate SPA status?"” it stated: “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.”
[29]As a result of the appellant’s researches before and since the Secretary of State’s decision, there is before us substantial additional material on this issue. This has been helpfully supplemented by a witness statement by Trevor Salmon, the responsible officer in the Department for Environment, Food and Rural Affairs (DEFRA). He concedes, however, that it has not been possible “from the paper records” to verify exactly what consideration was given to the classification of the Estuary. It is convenient to summarise the main points which emerge from this evidence (without regard at this stage to admissibility or relevance).[30]According to Mr Salmon, the general procedure for classification of SPAs has remained largely the same since 1981. Sites may be drawn to the Department’s attention by various different agencies, public and private. It relies on English Nature to verify the relevant data and advise it as to the suitability of any suggested site. It is normal practice for English Nature to undertake “a formal public consultation exercise”. Whilst a site is under consideration, the Department, applying “a precautionary principle” treats the site as a “potential SPA”, subject to protection as advised in PPG9. If English Nature concludes that the site qualifies for classification, the matter is submitted to the relevant Minister for decision whether to submit the site to the European Commission as a classified SPA. If he so decides, the site loses its status as a potential SPA and becomes a “classified SPA”; the Commission is notified, and notice is given to landowners and details are entered on the register under the 1994 regulations.[31]Mr Salmon also explains the evolution of criteria for selection of sites. In the absence of precise criteria in the Directive, the UK has developed its own selection guidelines, based initially on internationally accepted criteria. The guidelines were not published officially until 1999, as part of the JNCC’s review of UK SPAs (see below); but “in earlier forms” they were used for selecting SPAs from the 1980s. In particular, from the late 1980s sites were being considered if they supported over 1% of the Great Britain population of any of the Annex I species.[32]The 1999 published guidelines apply a two stage process. Stage 1 includes four possible categories. The first is that an area is used regularly by 1% of the Great Britain population of an Annex I species. The fourth is a residual category, where the application of the other Stage 1 categories for a species “does not identify an adequate suite of most suitable sites for the conservation of that species”. Stage 2 includes seven criteria, ranging from “population size and density” to “severe weather refuges”. As Mr Salmon explains, Stage 2 “allows a judgment to be made” on the most suitable areas for SPA classification, having regard to their contribution to the population viability of a species “both locally and as a whole”.[33]The history of consideration of the Estuary, so far as appears from the papers before us, can be summarised as follows:- i) In 1988 in a Written Answer to a Question in Parliament the Secretary of State identified the Estuary in a list of sites which “in the opinion of the Nature Conservancy Council are important bird areas and which may meet the criteria for designation as special protection areas…” (bundle p. 208). No reasons were given. Mr Salmon infers that this list was related to the circulation of an earlier draft of what became IBA 89 (see below). ii) In 1989 the “Inventory of Important Bird Areas in the European Community” was published (“IBA 89”). This had been prepared for the European Commission. (Its importance in the classification of SPAs was later confirmed by the European Court of Justice in the Netherlands case in 1998 - see above). The Estuary was included in the list of “important bird areas”, because of “its importance for wildfowl and waders (high species diversity but relatively low numbers)”. According to Mr Salmon the supporting data showed an “average maximum” count of 2,921 Golden Plovers, which he interprets as “a five year peak mean for the period 1982/3-1986/7”. iii) In 1990 the Nature Conservancy Council identified the Estuary in a list of “proposed and designated” SPAs in Great Britain. This list included sites which “definitely qualify” for SPA status, as distinct from a separate list of “possible” sites, for which information was still being reviewed. The former list was said to be “slightly updated” from the list given to Parliament in 1988. It seems likely, therefore, that this list also was related to IBA 89. Again no specific reasons were given for inclusion of the Estuary. The accompanying text indicated that the list was prepared at the request of Government, and was the “minimum of sites needed to carry through the objectives of the Birds Directive” (para 4.2) and “the irreducible minimum” (para 5.14). (It is Mr Bown’s case that “at the latest from the moment of the presentation of this advice” the Government was under a duty under EC law to treat the Estuary as though formally classified – see below.) iv) In a Written Answer to a further Question in Parliament in 1991 the Secretary of State again identified the Estuary as a potential SPA (bundle p.221). Again, no reasons were given. v) In 1992, a study “Important Bird Areas in the UK” was published by the main national conservation bodies, including the RSPB, English Nature, and the JNCC. It included a list of sites “designated or identified for designation” as SPAs. The preface stated:
“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.”
The list was said to “build on” IBA89 (para 1.1). The study included a detailed discussion of the limitations of the various criteria used for selection of important bird areas. “In keeping with the Directive” emphasis had been placed on the contribution of individual sites to achieving “the end target” of ensuring the survival and reproduction of Annex I species (para 1.7). The list included the Estuary (p 356), with the following description:
“These estuaries support nationally important numbers of wintering curlews. 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.”
Reference was made to the need for controls and a management scheme to resolve conflicting demands. The area of the suggested SPA was 1,337 hectares. vi) In 1994, as already noted, PPG9 was published, including in Annex B a list of designated and potential SPAs without any reference to the Estuary. We have not been referred to any contemporary documents relating to the decision to exclude the site, or explaining the apparent change of view between 1992 and 1994. Mr Salmon comments that the 1992 study had included the site on the basis of wintering curlew (not an Annex I species), rather than golden plover, numbers of which did not exceed the 1% criterion. He infers that this was the reason for exclusion of the site. (There is no evidence before us of any adverse reaction, in 1994 or immediately thereafter, to the publication of this list of SPAs, even though it was apparently the first time that the Estuary had been excluded from such a list.) vii) In 1999, as already noted, the JNCC published its selection guidelines. viii) In 2000 the Estuary was included in a new edition of “Important Bird Areas in Europe” (IBA 2000) as an Important Bird Area. This publication included a set of criteria for selecting sites as SPAs, representing a “consolidation” of criteria previously used by different member states. The classification of the Estuary (under “criterion C7”) shows that it was included as a site which was already designated or had been “selected as a candidate SPA” based on ornithological criteria similar to the earlier criteria. There is no indication of the source of the information that the Estuary was such a site (notwithstanding its exclusion from the most recent UK list); and it is not clear to what extent the JNCC 1999 guidelines were taken into account. ix) In 2001 the JNCC published a three-volume work “UK SPA network: its scope and content”. It described the JNCC’s 1999 selection guidelines.Appendix 7 described each site in the UK's SPA network. It did not include the Estuary. The status of the study is apparent from the Executive Summary:- “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….” The review was said to be based “on the best available data for sites and populations from the first half of the 1990s”. It was recognised that there were some differences from other studies, but “… the UK SPA list more accurately reflects the obligations under the Birds Directive”.

The judgment below

[34]Before Collins J the available historical material was more limited. He referred to the English Nature letter of April 2001. He rightly understood the reference there to “the published SPA selection guidelines” as a reference to the 1999 JNCC guidelines. He examined the available information about the current bird population of the Estuary against the guidelines, and concluded:
“16. 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.”
He noted a concession by Mr Mould (for the Secretary of State) that “… if a site was in IBA89 and there were no scientific or other material produced to counteract that, it would prevail.” However, he concluded, in agreement with Mr Mould, that there was ample material to show that the Torridge Estuary does not now qualify under the relevant criteria, “whatever may have been believed to be the position in 1989”, He concluded:
“24 ….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. 25. 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.”
[35]That conclusion, in so far as it relates to the position at and since the time of the inquiry, is not challenged by Mr McCracken. He criticises the judge’s implication (in para 24) that the 1989 information about golden plovers was other than “ a reliable figure” at the time. However, he does not submit that the present JNCC guidelines, or the exclusion of the Estuary on the basis of those guidelines, is itself in error, or inconsistent with the Directive. His case rests on the fact that, up to 1992 at least, the Estuary was regarded as a potential SPA; and on what he says are the legal consequences of that fact under European law.

The case for Mr Bown in this Court

[36]In this court, Mr McCracken has developed his case on the basis of what he calls a “constructive” SPA. This is his term for an area which (under the ECJ judgments referred to above) is entitled to protection under Article 4, as one which qualifies as an SPA, but which, in breach of the Directive, has not been so classified. Applying that concept to this case, he says that, at the latest from the date of the NCC’s advice in 1990, the Estuary was a constructive SPA; the Government was under a duty under EC law to classify it as an SPA, and to treat it as if so classified. Thereafter, he argues, it was not possible in law for the Government simply to cease treating it as an SPA, or to delete it from the list of such sites, as happened in 1994 in PPG9.[37]He concludes:
“This raises two important questions of EC law. The first is whether it is lawful to de-designate an SPA. The second is what conditions must be satisfied before such a de-designation may take place. The Secretary of State did not address either of those two questions. In failing to address them he erred in law.”
He asks the court to quash the Secretary of State’s decision, so that the matter can be redetermined on the correct basis, or alternatively to refer to the European Court the following question:
“When an area should have been, but was not, designated as an SPA, under what circumstances if any may it cease to be treated as an SPA?”
[38]He accepts that none of the previous cases on which he relies touches directly on what he calls the “time-lag” point: that is, what happens where a site has been identified as a potential SPA, but circumstances subsequently change, so that it ceases to qualify before formal classification takes place. However, he relies on the principle that a State cannot benefit from its own failure to classify. This would be infringed unless the issue is looked at by reference to the time when classification should have taken place; in effect, once a “constructive SPA”, always a constructive SPA. Any reduction in the area so established can only be allowed under the strict criteria laid down by the Germany case.

Discussion

[39]In our view, it is convenient to consider the argument in two stages: first, the legal effect of the events between 1990 and 1994 (so far as they are known); secondly, the position at the time of the decision under challenge in 2002.[40]There is no doubt that, on the evidence of the 1990 and 1992 studies, there appeared to be a strong case for classification of the site. However, the decision rested with the Secretary of State, who had to make a judgment based on the ornithological advice before him. It is surprising and unfortunate that we know so little about how or why the decision was made to exclude the Estuary from the 1994 list. (It is fair, however, to note that this issue does not seem to have been raised directly until the matter came to this court). It may be, as Mr Salmon infers, that it was because the numbers of Golden Plovers, on current counts, fell below the 1% guideline. If so, it seems to have reflected a rather narrow application of that guideline, at apparent variance with the view expressed in the 1992 study. It is notable, also, that the original IBA 89 proposal was based on species diversity, rather than numbers; a conclusion which was borne out by the description of the site in the 1992 study. It would have been of interest to know the Secretary of State’s reasons for taking a different view.[41]However, it is equally clear that in 1994 it became public knowledge that a decision had been made by the Secretary of State that the Estuary had, for whatever reason, been excluded from the list of SPAs or potential SPAs. It would have been open to anyone with a sufficient interest to challenge that decision, either by a prompt application for judicial review, or possibly by reference to the Commission. We know (from the inspector’s report) that the Friends of the Earth did at some time campaign for inclusion of the site, and (from the April 2001 letter) that the RSPB recently renewed their interest in it. However, we have no evidence that either of those bodies, or anyone else, took steps to challenge the decision in 1994 or thereafter. Even at the inquiry, the evidence was that the RSPB had withdrawn their request for inclusion of the site, on the basis of insufficient data, although requesting further review.[42]The 1994 PPG9 list was published for the guidance of local planning authorities, developers and others. It has no doubt been acted on by them over the nine years since then. In particular, the present bypass scheme has been prepared and presented to the inquiry on the basis that the area, although an SSSI, does not have the added protection of an SPA. In our view it is far too late now to challenge the 1994 decision or to base an argument on alleged legal shortcomings in that decision. That of course does not preclude further consideration of the site, as the RSPB has requested. But that must be made on the basis of current information.[43]This conclusion is not affected by Mr McCracken’s interesting argument based on “constructive SPAs”. That may be a convenient term to explain the effect of the protection given to potential SPAs. However, it does not alter the fact that a “potential” SPA, until classification, remains a proposal. Classification as an SPA is a legal step with important consequences, both for conservation and for those whose land is affected; hence, the need for notification of owners, and registration as a local land charge. As with any such proposal, the decision-maker must take account of all relevant information available to him at the date of the decision.[44]This conclusion also makes it unnecessary to address the issue which underlies Mr McCracken’s suggested reference. Since the site never became an SPA, the issue of declassification does not arise.[45]Once the arguments based on pre-1994 events have been disposed of, there is in our view no basis for challenging the actual decision in 2002. On the material before him, the inspector was correct to proceed on the basis that the site was not an SPA and was not likely to become one. The additional material placed before the Secretary of State, relating to the 1990 study, did not alter that position. There was and is no challenge to the JNCC’s view of the site under its current guidelines, and no criticism of those guidelines. This approach is not inconsistent with the ECJ cases relied on by Mr McCracken. The judgments lend no support to the proposition that an area which, on the available evidence does not qualify as an SPA, must be so treated merely because of conclusions reached in the past. On the contrary, in the Netherlands case, it was made clear that the IBA89 was only relied on in default of “better scientific evidence” from the Netherlands government. In those circumstances, in our view, the conclusion of Collins J was entirely correct.[46]For completeness, we should note Mr McCracken’s reference to the decision of the House of Lords in Berkeley v Secretary of State [2001] 2 AC 603. In that case, a planning permission (for redevelopment of the Fulham football ground) had been granted without an environmental assessment as required under European law. The Court of Appeal, in the exercise of its discretion, refused to quash the decision, because on the facts an environmental assessment would have made no difference. The House of Lords allowed the appeal and quashed the permission. It was held that, in the absence of at least substantial compliance, the court should not exercise its discretion to validate retrospectively a breach of the Directive, even if satisfied that the result would have been the same. Mr McCracken relies in particular on Lord Bingham’s comments on the narrowness of the court’s discretion, in the Community context, to refuse a remedy where a breach of community law is established (p 608C-G). He suggests that to rule out a challenge to the effect of the 1994 PPG9 would be subject to the same objection.[47]This is not a suitable case to consider in detail the implications of that decision. There was no issue there about delay in bringing proceedings. Certainly, it gives no support for a challenge more than eight years after the decision complained of. We would add one comment. The speeches need to be read in context. Lord Bingham emphasised the very narrow basis on which the case was argued in the House (p 607F-608A). The developer was not represented in the House, and there was no reference to any evidence of actual prejudice to his or any other interests. Care is needed in applying the principles there decided to other circumstances, such as cases where as here there is clear evidence of a pressing public need for the scheme which is under attack.[48]Accordingly, the appeal must be dismissed.

Postscript

[49]In conclusion, we would make two comments. First, although the appeal has failed, it has served a useful purpose in exposing an apparent lack of transparency in the procedures for classifying SPAs. EC law does not appear to impose any specific requirements for the decision-making process, although it requires registration once a site is classified. Nonetheless, in fairness to all involved, the procedure needs to be clearly defined and publicly explained. There seems an urgent need for updating of Annex B to PPG 9, to provide authoritative information as to the current list of classified and potential sites. The JNCC web-site is a useful source of information, but does not carry the authority of Government. We hope that attention will be given to these issues.[50]Secondly, the case has highlighted a possible gap in the procedures for permission to appeal to this court. This is a without notice procedure, and normally there is no reason for the potential respondent to be involved. However, in a case such as the present, the dispute is not solely of concern to the parties. The claimant is relying on the public interest in the protection of SPAs, but there are weighty interests on the other side. Although no prejudice seems to have resulted from delay caused by the challenge in the High Court, the information before us indicates that further delay would affect the timetable for the scheme. Such factors should be known to the court, since they may be very relevant to its exercise of any discretion, particularly as to the significance of delay or the need for expedition. In our view, in such cases, the claimant should, as part of his duty of full disclosure, provide the court with information about countervailing considerations, so far as not apparent from the documents, or alternatively give notice to the proposed respondents to enable them to put any relevant information before the court.

Order

Appeal dismissed. No order as to costs. Leave to appeal to the House of Lords refused. (Order does not form part of the approved judgment)

Cited in 3 later judgments