The Royal Society for the Protection of Birds v Secretary of State for Environment Food and Rural Affairs [2014] EWHC 1645 (Admin)

Case No CO/12012/2013[2014] EWHC 1645 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21/05/2014
Before
MR JUSTICE MITTING
Between
THE ROYAL SOCIETY FOR THE PROTECTION OF BIRDSClaimantTHE SECRETARY OF STATE FOR ENVIRONMENT FOOD AND RURAL AFFAIRSDefendant- and –BAE SYSTEMS (OPERATIONS) LTD1 st Interested Party- and –NATURAL ENGLAND 2 nd Interested Party
MR DAVID FORSDICK QC(instructed by THE ROYAL SOCIETY for PROTECTION OF BIRDS) for the ClaimantMR STEPHEN TROMANS QC AND MR COLIN THOMANN(instructed by THE TREASURY SOLICITOR) for DefendantMR CRAIG HOWELL WILLIAMS QC AND MR NED WESTAWAY(instructed by ADDLESHAW GODDARD LLP) for 1st Interested PartyHearing Hearing dates: 13 & 14 May 2014JudgmentMR JUSTICE MITTING :
[1]The River Ribble rises in Yorkshire and flows into the Irish Sea between Lytham St Annes and Southport. The River Alt rises in Huyton and flows into the Irish Sea at the edge of the Mersey Estuary. Part of the Ribble Estuary was identified as a National Nature Reserve in 1979 and notified as a Site of Special Scientific Interest under Section 28 of the Wildlife and Countryside Act 1981 in 1984. It was classified as special protection area under Council Directive 79/409/EEC in 1982. The Alt River Estuary was similarly classified in 1985. The two estuaries were jointly classified as a special protection area in February 1995. It was re-designated and its area extended on 28 November 2002. It now comprises 12,412.31 hectares. It is a habitat for a large number of different species of bird. Amongst them are two large gulls: the Lesser Black-backed Gull and the Herring Gull. This case concerns only those gulls and that part of the special protection area which lies within the Ribble Estuary. Both gulls breed there. A reasonable working estimate of the numbers of breeding pairs in the Ribble Estuary in recent years is 4,100 pairs of Lesser Black-backed Gull and, until the recent cull, 500 pairs of Herring Gull. They nest in an extensive area of sand mud flats and saltmarsh on the left, south, bank of the Ribble.[2]On the right bank of the Ribble, to the north and east of that area is the aerodrome and manufacturing and research facility operated by BAE Systems (Operations) Limited (“British Aerospace”) at Warton. British Aerospace and its predecessors have occupied the site since 1947. It is their principal UK facility for developing, manufacturing and testing military aircraft. Bird strike is an unavoidable occurrence. Small birds do not cause significant damage to aircraft; but large birds – those weighing more than 1kg – can do. The principal risk is that of ingestion into an aircraft jet engine. In the case of a single-engined aircraft, such as a Hawk, ingestion can lead to sudden total loss of power, requiring the pilot to eject and the aircraft to crash. The risk has been measured statistically. At Warton the annual frequency of the risk of damage to an aircraft sufficient to cause loss of service for a period of weeks has been assessed at 1 in 12.5 years and of aircraft loss associated with pilot ejection at 1 in 808 years. There is a national standard for yet more catastrophic loss, causing pilot fatality. That is set by the Health and Safety Executive at 1 in 1 million years. At Warton the risk is assessed at 1 in 30,000 years. A significant proportion of the Lesser Black-backed and Herring Gulls weigh more than 1kg. British Aerospace contends, without opposition from any source, that the two gulls are the primary cause of the risks identified above.[3]In an attempt to mitigate that risk, British Aerospace has sought consent for the culling of 1,700 pairs of Lesser Black-backed Gull and 500 pairs of Herring Gull on the Ribble Estuary site and the taking of measures to keep the numbers at the level produced by the cull. To do so British Aerospace required the written consent of Natural England under Section 28E Wildlife and Countryside Act 1981 or, if consent was not given, a direction by the Secretary of State for the Environment Food and Rural Affairs to Natural England following an appeal under Section 28F. Natural England consented to the culling of 200 pairs of Lesser Black-backed Gull and 25 pairs of Herring Gull, but refused to consent to the balance of the cull. British Aerospace appealed to the Secretary of State against that refusal. The Secretary of State appointed Edward A. Simpson to conduct a public inquiry into British Aerospace’s notification. By a report dated 21 February 2012, Mr. Simpson recommended to the Secretary of State that he should direct Natural England to give consent to the full cull and subsequent control mechanisms. By a decision notified by a letter dated 12 December 2012, the Secretary of State directed Natural England to give consent to the culling of 475 pairs of Herring Gull (i.e. the balance left after the cull of 25 pairs permitted by Natural England). In a separate letter of the same date, he indicated that he was minded to direct Natural England to consent to a cull of a further 552 pairs of Lesser Black-backed Gull, but to affirm Natural England’s decision as to the remainder of the cull – 948 pairs. He invited representations from all interested parties. By a decision notified by a letter dated 29 May 2013, he directed Natural England to give consent for the culling of 552 pairs of Lesser Black-backed Gull and further operations to maintain the population at a reduced level, provided that it did not fall below 3,348 pairs. By the date of this letter, the cull of 500 pairs of Herring Gull had been completed. The Secretary of State also directed Natural England to consent to further operations to maintain the population levels of Herring Gull at the reduced level.[4]By this claim, the claimant, The Royal Society for the Protection of Birds, challenges both of the decisions of the Secretary of State. The grounds of challenge are manifold, but at their heart assert that the Secretary of State was not, as a matter of law, entitled to direct Natural England to give consent to the culling of 552 pairs of Lesser Black-backed Gull.[5]A rational system of law ought to provide a readily understandable means of reconciling the competing claims of the conservation of species of birds with those of a facility for the development, manufacture and testing of military aircraft; or, if reconciliation is not possible, of determining which should have priority. Unfortunately the law is complex and opaque. Unsurprisingly, it has generated a large number of lengthy and detailed documents in which the parties’ submissions have been advanced and analysed. The inspector’s report runs to 126 pages and the Secretary of State’s principal decision letter to 44. The skeleton arguments of the parties in these proceedings run to 45, 45 and 49 pages respectively. My analysis of the decision of the Secretary of State must inevitably be preceded by an extensive review of the law, in an attempt to discern what it is.[6]The starting point is Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (“the Wild Birds Directive”). Recital 1 notes that the original Wild Birds Directive – 79/409/EEC – has been substantially amended several times and states that it should be codified “in the interests of clarity and rationality”. It fails to achieve that aim. The recitals do, however, set the scene. Recital (3) notes that “a large number of species of wild birds naturally occurring in the European territory of the Member States are declining in number” and that that decline represents a serious threat to the conservation of the natural environment. Recital (8) states, “The preservation, maintenance or restoration of a sufficient diversity and area of habitats is essential to the conservation of all species of birds. Certain species of birds should be the subject of special conservation measures concerning their habitats in order to ensure their survival and reproduction in their area of distribution. Such measures must also take account of migratory species and be co-ordinated with a view to setting up a coherent whole.” For present purposes, this is the most important of the recitals.[7]Article 1 defines the scope of the Directive: it relates to “conservation of all species of naturally occurring birds in the wild state in the European territory of the Member States”.[8]Article 2 imposes a general obligation on Member States in relation to all species of naturally occurring birds in the wild state. Unfortunately the language of Article 2 is obscure. It reads, “Member States shall take the requisite measures to maintain the population of the species referred to in Article 1 at a level which corresponds in particular to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements, or to adapt the population of these species to that level”. The Article stipulates a level of population of the species by reference to factors without making it possible to discern what the level should be. The most that can be gleaned is that there should be a level and that it should allow for what in the United Kingdom is called shooting and in continental Europe hunting.[9]Articles 5 – 9 deal with the protection of wild birds generally. Article 5 requires Member States to take requisite measures, “to establish a general system of protection for all species of birds referred to in Article 1.” In particular, deliberate killing or capture by any method is prohibited. Article 7, however, permits hunting under national legislation; and Article 9.1(a) permits derogation from the provisions of Article 5 for a number of specified reasons, including “ – in the interests of public health and safety, – in the interests of air safety”.[10]Articles 3 and 4 deal with the habitats of certain species of wild bird. Article 3 requires Member States to “take the requisite measures to preserve, maintain or re-establish a sufficient diversity and area of habitats” for all species of naturally occurring birds in the wild state in the European territory of Member States. Article 3.2 explains what that entails:
“2. The preservation, maintenance and re-establishment of biotopes and habitats shall include primarily the following measures: (a) creation of protected areas; (b) upkeep and management in accordance with the ecological needs of habitats inside and outside the protected zones; (c) re-establishment of destroyed biotopes; (d) creation of biotopes.”
[11]In English biotope and habitat are synonymous or almost so and mean the natural or physical environment in which a species of plant, animal or bird lives. Article 3 is, thus, directed to geographical areas and habitats.[12]So, in the main, is Article 4. As originally drafted, it provided, “1. The species mentioned in Annex 1 shall be the subject of special conservation measures concerning their habitat in order to ensure their survival and reproduction in their area of distribution…. Member States shall classify in particular the most suitable territories in number and size as special protection areas for the conservation of these species 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 1, 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… 4. In respect of the protection areas referred to in paragraphs 1 and 2 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…” The two species of gull with which this case is concerned are not listed in Annex I but are regularly occurring migratory species, so that Member States are under the obligation imposed by Article 4.2 in respect of them.[13]As a matter of language, the requirements of Article 4 are mainly directed to habitats. The obligations imposed on Member States, in relation to migratory birds, are, i) to take special conservation measures “concerning their habitat” – for a particular purpose, “to ensure their survival and reproduction in their area of distribution”. ii) to classify “the most suitable territories” as special protection areas. iii) to do both of those things, “bearing in mind” the need for protection of migratory birds “as regards their breeding, moulting and wintering areas and staging posts”. iv) to avoid significant pollution or deterioration of habitats. Article 4.4 did, however, impose an additional obligation in relation to the birds themselves: to take appropriate steps to avoid any disturbance affecting the birds “in so far as these would be significant having regard to the objectives of this Article”. The overall objective of Article 4 is stated in Article 4.1 and .2: the survival and reproduction of migratory species in their area of distribution. Article 4 as originally drafted made no reference to numbers of birds of a particular species. The objective was to ensure the existence of a viable population of birds of a particular species in that part of the territory of Member States inhabited or visited by them. Member States were required to take measures to prevent or minimise disturbance which put that objective at significant risk.[14]The words of Article 4.4 were unqualified. In relation to the extent of a special protection area, the Luxembourg Court invented an exception in Commission v. Germany Case C – 57/89 28 February 1991, paragraphs 21 and 22, “21…It follows that the power of the Member States to reduce the extent of a special protection area can be justified only on exceptional grounds. 22. Those grounds must correspond to a general interest which is superior to the general interests represented by the ecological objective of the Directive. In that context the interest referred to in Article 2 of the Directive, namely economic and recreational requirements, do not enter into consideration. As the Court pointed out in its judgments in Case 247/85 (Commission v. Belgium [1987] ECR 3029) and Case 262/85 (Commission v. Italy [1987] ECR 3073), that provision does not constitute an autonomous derogation from the general system of protection established by the Directive.” Although it found that the exception applied on the facts of the case, it undoubtedly set a high threshold to be surmounted before the extent of a special protection area could be reduced. Member States may well have been concerned that, by parity of reasoning, an equally high threshold would be set by the Court in relation to the other qualified prohibitions in Article 4.4.[15]Article 7 of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (“the Habitats Directive”) replaced the obligations arising under the first sentence of Article 4.4 of Directive 79/409/EEC, which was in identical terms to Article 4.4 of the Wild Birds Directive, with the obligations arising under Articles 6.2, 6.3 and 6.4 of the Habitats Directive. They provide, “2. Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive. 3. Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the previous provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public. 4. If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measure necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted. Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest.”[16]When the European legislature passed the Wild Birds Directive into law it could “in the interests of clarity and rationality” have tailored the wording of Article 6.2 - .4 of the Habitats Directive to tie in more closely with the scheme and objectives of the Wild Birds Directive. It chose not to do so. It can be taken to have understood and accepted the case law of the Luxembourg Court on the interpretation of Article 6.2 - .4 of the Habitats Directive read in the context of the Wild Birds Directive; and to have decided to leave it in place. To understand its meaning it is necessary to consider the scheme and purpose of the Habitats Directive.[17]The recitals of the Habitats Directive identify its main aims: to promote the maintenance of biodiversity; to take measures at Community level to conserve threatened habitats and wild species; and to designate special areas of conservation in order to create a coherent European ecological network. It also noted that special protection areas classified under the Wild Birds Directive would have to be incorporated into the coherent European ecological network.[18]Article 2.1 identified the aim of the Habitats Directive:
“to contribute toward ensuring bio-diversity through the conservation of natural habitats and of wild fauna and flora in the European territory of…Member States…”
Conservation is defined by Article 1(a) as, “a series of measures required to maintain or restore the natural habitats and the populations of wild fauna and flora at a favourable status as defined in (e) and (i).”[19]The general aim of the operative provisions of the Habitats Directive is identified in Article 2.2, “Measures taken pursuant to this Directive shall be designed to maintain or restore, at favourable conservation status, natural habitats and species of wild fauna and flora of Community interest.” Natural habitats of Community interest are listed in Annex 1 and include sandbanks, estuaries and mudflats, such as those on the Ribble Estuary site. Natural fauna and flora of Community interest include species of Community interest as defined in Article 1(g): those which are endangered, vulnerable, rare or endemic and requiring particular attention because of the specific nature of their habitat or the potential impact of their exploitation on their habitat or conservation status. They are listed in Annexes II, IV or V. They do not include wild birds.[20]Article 3 of the Habitats Directive requires Member States to establish a coherent European ecological network of special areas of conservation under the title Natura 2000. It includes the special protection areas classified under the Wild Birds Directive. Articles 4 and 5 describe the means by which sites are to be designated as special areas of conservation – by the Member States, but with a default provision permitting the Commission and Council to intervene in exceptional cases.[21]Mr. Forsdick QC submitted or conceded that birds are not fauna. He was wrong to do so. Birds are warm-blooded vertebrates, most, but not all of which fly. They are, in general and scientific usage, accepted to be part of the animal life of a region and so are described by the collective name fauna: a penguin is as much a part of the fauna of the Antarctic as a seal. Because they are not listed in Annexes II, IV or V of the Habitats Directive, they are not fauna of Community interest. This has a significant consequence: their conservation is one of the aims of the Directive set out in Article 2.1, but they are not the object of measures to maintain or restore them at favourable conservation status under Article 2.2. Even if they were, favourable status of a species of bird would be as defined in Article 1(i) – when it was maintaining itself on a long-term basis as a viable component of its natural habitats, when its natural range was not or will not be reduced and when there was and will be a sufficiently large habitat to maintain its population on a long-term basis.[22]Article 6.2 of the Habitats Directive does not, as a matter of language, apply to special protection areas classified under the Wild Birds Directive, because it only applies to special areas of conservation – i.e. those designated by Member States or, in exceptional cases, by the Commission and Council, under the Habitats Directive. If so designated, Article 6.2 would apply to them; but when, as in the case of the Ribble Estuary site, an area has not been so designated, it could only have effect if “special areas of conservation” is to be read as including “special protection areas”. Mr. Forsdick and Mr. Tromans QC submit that it should be so construed. I doubt that it should be: the legislature knew the difference between the two, because it referred to special protection areas in the recitals and in Article 3 of the Habitats Directive. It provided for their inclusion in the coherent European ecological network titled Natura 2000; but it did not go further. It could easily have referred to them by name in Article 6.2 in the Habitats Directive or included an express reference to them in the codifying Wild Birds Directive.[23]Article 6.2 refers to “the objectives of this Directive”. Mr. Forsdick and Mr. Tromans submit that this must, in the context of the Wild Birds Directive, be taken to refer to that Directive, not the Habitats Directive. I was at one point inclined to agree. Mr. Howell Williams QC drew my attention to a persuasive decision of high authority to opposite effect, Royal Society for the Protection of Birds v. Secretary of State for Scotland, a decision of the First Division of the Inner House presided over by Lord Rodger of 28 July 2000 [2000] SLT 1272. A decision to grant licences to two farmers to shoot Barnacle Geese on two sites classified as special protection areas under Article 4 of the Wild Birds Directive in Islay was challenged in judicial review proceedings. The Lord Ordinary held that “the objectives of this Directive” in Article 6.2 referred to the Wild Birds Directive. Lord Rodger held that it referred to the Habitats Directive even when it was being applied to the Wild Birds Directive. He reached that conclusion as a matter of language and because to decide otherwise would detract from the coherence of the special areas of conservation in the Natura 2000 network. He construed the obligation of the Scottish Ministers as being “to take appropriate steps to avoid disturbance of the species for which the special protection areas have been designated, in so far as such disturbance could be significant in relation to the objectives of the Habitats Directive”. Applying that test, he held that, “Disturbance should not impair the protection of the quality of the living conditions of the birds on the site and so affect their ability to maintain themselves on a long-term basis as a viable component of their natural habitat.” Lord Dawson and Lord Cowie agreed with him.[24]Lord Rodger’s conclusion anticipated the analysis of Article 6.2 and .3 by the Luxembourg Court in the seminal case of Landelijke Vereniging tot Behoud van de Waddenzee v. Staatssecrtris van Landbouw, Natuurbeheeren Visserij – Case C – 172/02 [2004] ECR 1-7405. The Court was considering the relevant objectives under Article 6.2 and .3 of the Habitats Directive in a case concerning its application to a nationally protected site treated as classified under the Wild Birds Directive. In paragraphs 37 and 38 it expressly treated the objectives of the Habitats Directive as the relevant objectives, not those of the Wild Birds Directive.[25]I therefore take it to be settled law that the Directive referred to in Article 6.2 of the Habitats Directive, even when it is being applied in the context of the Wild Birds Directive, is the Habitats Directive.[26]I also accept Lord Rodger’s statement of what Article 6.2 prohibits, “What is not permitted is disturbance which adversely affects the ability of the species to maintain itself on a long-term basis on the site or – as the Commission puts it – which could contribute to the long-term decline of the species on the site.” That chimes with the objectives identified in Article 2.1 of the Habitats Directive and Article 4.1 and .2 of the Wild Birds Directive: neither imposes an obligation to preserve, on any particular site, a particular number of a species of migratory bird or of migratory birds generally.[27]Article 6.3 presents less difficulty. It applies to a plan or project which is not directly connected to the management of the site. It is common ground that the planned cull is such a plan or project. “Site” is defined in Article 1(j) of the Habitats Directive as “a geographically defined area whose extent is clearly delineated.” It clearly includes a geographically defined area classified as a special protection area. Greater difficulty is caused by the phrase “conservation objectives”, which is defined in neither Directive. At a high level, it is that set out in Article 4.1 and .2 of the Wild Birds Directive: the survival and reproduction of migratory species of bird in their area of distribution; and in Article 2.1 of the Habitats Directive: contributing to biodiversity through the conservation of natural habitats and of wild fauna and flora.[28]Both Directives leave it to Member States to identify the conservation objectives for special protection areas within their territory. The United Kingdom, in England, has done so, but only in a roundabout way. The Ribble Estuary site is a “European marine site” as defined by Regulation 8(4) of the Conservation of Habitats and Species Regulations 2010. (It is unnecessary to set out the route by which it is so defined, because it is common ground that it is). Under Regulation 5(1) Natural England is “the appropriate nature conservation body” in relation to England. Under Regulation 35, it has a duty to advise “other relevant authorities”, including the Secretary of State, as to the conservation objectives for a European marine site. Its function is, however, confined to advice. No person or authority is expressly charged with the statutory duty of setting conservation objectives. This has a consequence, as I shall explain.[29]Article 6.3 of the Habitats Directive contains two discrete obligations: to assess the likely impact of a plan or project and to agree to it only after having ascertained that it will not adversely affect the integrity of a special area of conservation or special protection area. The difference was pithily explained by Advocate General Sharpston at paragraph 50 of her opinion in Sweetman v. An Bord Pleanala Case C – 258/11 [2013] 3 CMLR 16: the question at the first stage is, “should we bother to check?”; that at the second is “what will happen to the site if this plan or project goes ahead?” The first test sets a low threshold, as the Luxembourg Court explained in Waddenzee at paragraph 44, “In the light, in particular, of the precautionary principle…such a risk exists if it cannot be excluded on the basis of objective information that the plan or project will have significant effects on the site concerned….Such an interpretation of the condition to which the assessment of the implications of the plan or project for a specific site is subject, which implies that in case of doubt as to the absence of significant affects such an assessment must be carried out, makes it possible to ensure effectively that plans or projects which adversely affect the integrity of the site concerned are not authorised…”[30]The Secretary of State determined that, applying that principle an assessment of the implications for the site was required. Nobody disputes that he was right to do so and I accept that he was.[31]His obligation was to assess the implications of British Aerospace’s plans for a cull for the site “in view of the site’s conservation objectives”. In relation to the first task imposed upon the Secretary of State – that of assessment – the site’s conservation objectives play a significant part. As the Luxembourg Court explained in Waddenzee at paragraphs 48 and 49 when a plan or project is likely to undermine the conservation objectives of a site, “it must necessarily be considered likely to have a significant effect on the site”.[32]Mr. Forsdick submits that similar reasoning should be applied to the second obligation. Mr. Tromans and Mr. Howell Williams do not agree. Nor do I. The obligation of the Secretary of State is spelt out in terms which are, in my view, unmistakeably clear: he must assess the implications of the plan or project for the site; and must only agree to it having ascertained that it will not adversely affect the integrity of the site. The first obligation does require him to assess the implications for the site “in view of” its conservation objectives; but having done so, he is required to agree or not agree to the plan or project by reference to one criterion only: the integrity of the site.[33]This focus was confirmed by the Luxembourg Court in Sweetman: a case concerned only with the Habitats Directive and with a plan or project which would lead to lasting and irreparable loss of part of a priority natural habitat type:
“40. Authorisation for a plan or project, as referred to in Article 6(3) of the Habitats Directive, may therefore be given only on condition that the competent authorities – once all aspects of the plan or project have been identified which can, by themselves or in combination with other plans or projects, affect the conservation objectives of the site concerned, and in the light of the best scientific knowledge in the field – are certain that the plan or project will not have lasting adverse effects on the integrity of that site.”
Contrary to Mr. Forsdick’s submission, that passage makes plain that the Court accepted that once all aspects of the plan as it affected the conservation objectives of the site had been considered, it was the integrity of the site which was determinative.[34]On a strict analysis of the wording of Article 6.3, the reduction in number or even elimination of a species on a special protection area for which it had been classified would not affect the integrity of the site provided that its biotopes and habitats were fully preserved. No party suggests that that is the approach which should be adopted and all state that issues of this kind have always been determined by taking into account the impact of a plan or project on the species on the site. I have no wish to disturb the settled understanding on the context in which these issues are to be decided; and accordingly accept that conservation objectives, if they can be identified, are relevant to a decision about the impact of a plan or project on the integrity of a special protection area.[35]I also accept the common ground between the parties that when a plan or project not directly connected with or necessary to the management of the site is in issue, a decision as to whether or not it can be allowed to proceed is to be taken under Article 6.3 of the Habitats Directive, not Article 6.2. As the Luxembourg Court held in paragraphs 35 and 36 of the Waddenzee case, “35. The fact that a plan or project has been authorised according to the procedure laid down in Article 6.3 of the Habitats Directive renders superfluous, as regards the action to be taken on the protected site under the plan or project, a concomitant application of the rule of general protection laid down in Article 6.2. 36. Authorisation of a plan or project granted in accordance with Article 6.3 of the Habitats Directive necessarily assumes that it is considered not likely adversely to affect the integrity of the site concerned and, consequently, not likely to give rise to deterioration or significant disturbances within the meaning of Article 6.2.” The underlying reason for that approach is, I believe, that identified by Lord Rodger in Royal Society for the Protection of Birds v. Secretary of State for Scotland: it is because a plan or project which does not affect the integrity of the site will not adversely affect the ability of the species to maintain itself on a long-term basis on the site or contribute to the long-term decline of the species on it, that any disturbance will not be significant in relation to the objectives of the Directive. The culling of a number of birds of a species in a special protection area which does not have that effect can be agreed to.[36]Thus far, I have approached the issues by reference to the two Directives, rather than the domestic legislation which gives effect to them – the 2010 Regulations. They are contained in Regulation 61 which replicates, in the same words, albeit in different order, the obligations set out in Article 6.3 of the Habitats Directive. The outcome would be the same, for the same reasons, as under the Directives directly considered.[37]I have, unusually in a judicial review, begun my judgment with an analysis of the statutory scheme before turning to the reasoning of the decision-maker, the Secretary of State, and the criticisms of that reasoning advanced by the Claimants. I have done so because I am certain that the outcome of this case cannot turn on the detail of the Secretary of State’s reasoning, provided that it addressed the issues which Article 6.3 of the Habitats Directive required him to address and that his conclusion that the integrity of the site was not adversely affected was one that he was entitled to reach and lawful. If those requirements are fulfilled, it does not matter that there might be legitimate criticism of the detail of his reasoning.[38]The first substantive issue addressed by the Secretary of State in his decision letter was the conservation objectives for the site. This was no easy task. The site was identified and described in a Joint Nature Conservation Committee document entitled “UK SPA Network: Its Scope and Content” published in 2001. The reasons given for its classification as a special protection area were identified: under Article4.1 of the Wild Birds Directive, because it supported populations of European importance of species listed in Annex I of the Directive; and under Article4.2 because it supported populations of European importance of migratory species, including the Lesser Black-backed Gull. It noted that 1,800 breeding pairs, representing at least 1.5% of the breeding Western European etc. population had been counted in 1993. Natural England had produced two draft statements of objectives for the site in 2006 and 2008 and a “final” version dated 23 August 2011. It was not a model of clarity. It applied to all three of the sites’ designations – as a site of special scientific interest, as a special protection area and as a Ramsar site. In a table headed “Species Populations” it set out the following observations in the entry relating to “Aggregation of breeding birds”:
“Site specific target range and measures. Maintain population within acceptable limits (in this context the population can be that of an individual species or the total population of an assemblage). Based on the known natural fluctuations of the population in the site maintain the population at or above the minimum for the site. Where the limits of natural fluctuations are not known, maintain the population subject to natural change within acceptable limits, above 75% of that at designation – loss of 25% or more unacceptable…. Individual species present in nationally/internationally important numbers at designation are:.. Lesser Black-backed Gull (Larus fuscus) – breeds colonially. Breeding bird population size 4,100 (Seabird 2000) mainly confined to Banks and Hesketh Marshes. The baseline figure of Lesser Black-backed Gulls was confirmed as 4,100 pairs in 2008. → 20,000 breeding seabird assemblage: assemblage baseline figure is 32,624 individuals.”
In a note appended to the table, Natural England explained that they had taken the population size of Lesser Black-backed Gulls as 4,100 pairs, rather than the designated number, because counts suggested that there were over 4,000 pairs in 1998 and that the population had remained stable at around 4,100 pairs subsequently. The figure of 32,624 for the breeding seabird assemblage, which included the Lesser Black-backed Gull, was based on a five year assessment preceding the expansion and re-designation of the special protection area in 2002. → 20,000 breeding seabird assemblage: assemblage baseline figure is 32,624 individuals.”[39]In 29 May 2012 Natural England published a document entitled “European site conservation objectives for the Ribble and Alt Estuaries special protection area”. It reads, “With regard to the individual species and/or assemblage of species for which the site has been classified (“the qualifying features” listed below); Avoid the deterioration of the habitats of the qualifying features and the significant disturbance of the qualifying features, ensuring the integrity of the site is maintained and the site makes a full contribution to achieving the aims of the Birds Directive. Subject to natural change, to maintain or restore: - the extent and distribution of the habitats of the qualifying features; - the structure and habitats of the qualifying features; - the supporting processes on which the habitats of the qualifying features rely; - the populations of the qualifying features; - the distribution of the qualifying features within the site. Qualifying features … A183 Larus Fuscus; Lesser Black-backed Gull (breeding)… Seabird assemblage.” The explanatory notes at the end of the document contained the following, “European site conservation objectives are those referred to in the Conservation and Habitats and Species Regulations 2010 (the “Habitats Regulations”) and Article 6(3) of the Habitats Directive 1992. They are for use when either the appropriate nature conservation body or competent authority is required to make an appropriate assessment under the relevant parts of the respective legislation. These conservation objectives are set for each bird feature for a special protection area(SPA). Where the objectives are met the site can be said to demonstrate a high degree of integrity and the site itself makes a full contribution to achieving the aims of the Birds Directive for those features…. This document is also intended for those who are preparing information to be used for an appropriate assessment by either the appropriate nature conservation body or a competent authority. As such this document cannot be definitive in how the impacts of a project can be determined. Links to selected sources of information, data and guidance which may be helpful can be found on Natural England’s website. This list is far from exhaustive.” Subject to natural change, to maintain or restore: Qualifying features A183 Larus Fuscus; Lesser Black-backed Gull (breeding)… Seabird assemblage.”

A183 Larus Fuscus; Lesser Black-backed Gull (breeding)…

[40]Two tentative and one firm conclusion can be drawn from these documents. The first tentative conclusion is that in 2011, Natural England contemplated that conservation objectives for the site would be met if 75% of the population of a species at designation of the site as a special protection area was maintained. The second, even more tentative conclusion, is that in its 2012 guidance, Natural England was not identifying, as a conservation objective, the maintenance of a minimum number of an individual species on the site: hence the use of the plural, “populations” in the phrase “the populations of the qualifying features”. If it had been intended to specify a minimum number for a species, it should have read “the population of each qualifying feature”. The third firm conclusion is that, as Natural England recognised in the last paragraph of its explanatory notes, the documents are advisory, not determinative. In this the notice is consistent with Regulation 35(3) of the 2010 Regulations.[41]The conclusion which should be drawn from this is that it was for the Secretary of State to determine for himself what the conservation objectives for the Ribble Estuary site were. No doubt he would have failed to take into account a relevant consideration if he had ignored the advice given by Natural England; but he was not bound by it. The Secretary of State was entitled to determine for himself the size of the cull which would not adversely affect the integrity of the site. He undertook a meticulous analysis of the number of Lesser Black-backed Gulls on the site at designation in 2002 and accepted Natural England’s conclusion that it was 4,100 pairs. He concluded that the conservation objective for this species should be to maintain or restore that population above 75% of that at designation.[42]Mr. Forsdick submits that, in so concluding, the Secretary of State fell into error: he treated the margin for natural fluctuation in the guidance manual on common standards of monitoring issued by the Joint Nature Conservation Committee in February 2004 as the limit of a non-natural intervention, a cull. There is nothing in this criticism. The Secretary of State was entitled to exercise his judgment on the minimum number of Lesser Black-backed Gulls which must be maintained to fulfil the ultimate conservation objective – that of ensuring the ability of the species to maintain itself on a long-term basis on the site and/or avoiding its long-term decline on the site. The Secretary of State knew, and expressly took into account, that this species had increased exponentially in number before the site was designated: from fewer than 10 breeding pairs before 1973 to 1,800 pairs in 1993 and 4,100 at re-designation. It was obvious, and the Secretary of State was entitled to conclude, that the culling of 752 pairs (200 + 552) would not affect the ability of the species to maintain itself on a long-term basis on the site or lead to its decline. What might lead to its decline is the cutting off or reduction in food sources as noted by the Joint Nature Conservation Committee in its 2012 report: a decrease in the availability of domestic refuse in landfill sites and reduced discards from fisheries. Further, the Secretary of State set the minimum number at 3,348 pairs – the lowest number counted since 1998, since when the number has increased to about 4,150 pairs. On any view, this was a careful and rational assessment of the numbers which could safely be culled before the long-term viability of the Lesser Black-backed Gull on this site was impaired. Given that conclusion and the self-evident fact that the cull would not, except temporarily, affect the habitat of the gulls, the Secretary of State was plainly entitled to conclude that the integrity of the site would not be affected by it. The challenge to this aspect of his decision is unfounded.[43]The next issue considered by the Secretary of State was the impact of the cull on the seabird assemblage. The Seabird assemblage is the total number of individual breeding seabirds on the site. The Secretary of State was faced with an obvious difficulty: establishing the number of breeding individuals within the seabird assemblage when the Ribble Estuary site was re-designated in 2002. In its 2011 advice, Natural England identified a figure of 32,624 breeding individuals. Other, lower, figures were proposed by British Aerospace and by the Secretary of State in his second letter of 12 December 2012. Natural England’s advice in its 2012 document was unspecific, for the reasons explained in relation to the Lesser Black-backed Gull. Again, the Secretary of State was entitled to determine for himself the conservation objectives in relation the seabird assemblage. The figure at which he eventually arrived was 25,123 breeding individuals, based on counts made in the years 2000 to 2004. His reason for doing so was that it omitted what he believed to be an unrepresentative – overlarge – count of the major component of the assemblage – Black-headed Gulls – in 1999. Having taken that as the starting point, the Secretary of State concluded that the cull of Lesser Black-backed Gulls and Herring Gulls would not reduce the number below 75% of that figure – a mathematically unchallengeable conclusion. Whether or not it was appropriate to take that 75% figure depends upon the same considerations as those considered in relation to the Lesser Black-backed Gull and my conclusion about them is the same.[44]Mr. Forsdick criticises the Secretary of State’s selection of the starting number for two reasons: it was irrational to omit the count of Black-headed Gulls in 1999, because an analysis of the figures shows that it was not anomalous; and it was wrong to take into account counts made after re-designation in 2002. I accept that there is an element of casuistry in the Secretary of State’s approach; but I am not persuaded that that vitiates it to the extent of making it irrational or unlawful. It is necessary to delve a little deeper into the figures. What they show is that there has been a long-term decline in the numbers of breeding pairs of Black-headed gull, from 20,000 estimated in 1988 and 15,500 in 1989. These figures cannot purport to be precise, but they can be taken to indicate an order of magnitude. Numbers then declined to 9,000 in 1993, rose again to 11,875 in 1996 and declined again to 8,325 in 1998. The subsequent figures are as follows: 14,300 in 1999, 8,460 in 2003, 7,750 in 2007 and 5,242 in 2008 (figures taken from the proof of evidence of Allan Drewitt, called by Natural England at the inquiry). The decline in number of Black-headed Gulls has coincided with an increase in the number of Lesser Black-backed Gulls and Herring Gulls – from 340 and 85 breeding pairs in 1987 to 4,117 and 460 breeding pairs in 2008. It is possible that there is a connection between these two trends; but in any event it is apparent that the dominant cause of the decline in the overall number of breeding birds in the assemblage is the decline in the number of Black-headed Gulls. The problem, if there is one, lies in the decline in number of that species. Nobody has suggested that it has declined because of a deterioration in its habitat on the Ribble Estuary site, still less because that site has lost or is in danger of losing its integrity. It is surely illogical to address a problem caused by the decline of one species by refusing to impose a limit on numbers of breeding pairs of a species that has thrived on this site. Accordingly, however the Secretary of State arrived at his figures, given that he was entitled to conclude that the integrity of the site was unimpaired, this challenge, too, must fail.[45]Mr. Forsdick also challenges the decision to authorise steps to maintain the reduced number of breeding pairs of Herring Gull, because of its impact on the assemblage. This challenge is now academic, because the cull of Herring Gulls has already occurred, pursuant to a decision taken on 12 December 2012, which was not challenged in time.[46]The Secretary of State considered whether the disturbance which would necessarily be caused by the cull and later control measures to birds on the site which were not culled would adversely affect the integrity of the site. He concluded that it would not; and his conclusion is not challenged in these proceedings.[47]Mr. Forsdick suggested that two questions should be referred to the Court of Justice: i) In the context of a special protection area designated for particular species at a particular population level, can the State grant consent under Article 6.3 of the Habitats Directive for significant long-term deliberate reductions in population below that level? ii) Is the integrity test to be judged by reference to the site, meaning its physical structures, or by reference to the site including all of its constitutive elements and in particular the level of populations for which it was designated?[48]Both questions seem to me to make an assumption about the “population level” of a species on a site which is not to be found in Article 6.3. It arises from the national application of the general requirements set out in that Article. Further, the answers which I have given to the questions raised by the case do not require Mr. Forsdick’s proposed questions to be answered. I can see no purpose in referring them to the Luxembourg Court.[49]For the reasons given, this claim for judicial review is dismissed.

Cited in 1 later judgment