R (Boggis) and another v Natural England; [2009] EWCA Civ 1061; [2009] WLR (D) 304

PLANNING — Protection — Site of special scientific interest — Notification and confirmation of area of land as site of special scientific interest — Whether constituting “plan” or “project” to be assessed pursuant to Directive — Wildlife and Countryside Act 1981, s 28 — Council Directive 92/43/EC, art 6(3)

R (Boggis) and another v Natural England

[2009] EWCA Civ 1061; [2009] WLR (D) 304

CA: Mummery, Longmore, Sullivan LJJ: 20 October 2009

A notification pursuant to s 28 of the Wildlife and Countryside Act 1981 that an area of land was of special scientific interest did not constitute a “plan” or a “project” for the purposes of art 6(3) of Council Directive 92/43/EC (“the Habitats Directive”) and so was not subject to an appropriate assessment of its conservation implications for any special protection area on which it was likely to have a significant effect.

The Court of Appeal so held in reserved judgments allowing the appeal of the defendant, Natural England, from the decision of Blair J [2009] 3 All ER 879 dated 5 December 2008 who had granted in part the claim of the claimants, Peter Charles Boggis and Easton Bavents Conservation, for judicial review of the decision of the defendant’s predecessor, English Nature, to confirm the notification of the Pakefield to Easton Bavents Site of Special Scientific Interest pursuant to s 28(5) of the 1981 Act.

Since 2003 the second claimant, a group formed by local residents including the first claimant, had constructed a “sacrificial sea defence” on the seaward side of Easton Bavent cliffs in Suffolk. The sea defence fell within the site of special scientific interest (“the SSSI”) that had been confirmed by the defendant’s predecessor in 2006. Fearing that the SSSI would prevent them from replenishing the sea defence, the claimants had sought judicial review of the SSSI’s confirmation. The judge had held that insofar as the notification and confirmation of the SSSI applied to the authorisation of the maintenance of the sea defence it was a “plan” within the meaning of art 6(3) of the Habitats Directive and that, therefore, art 6(3) of the Habitats Directive required it to be subject to an appropriate assessment of its implications for the Benacre to Easton Bavents Special Protection Area, which fell within the SSSI, an assessment which had not taken place.

Art 6(3) of the Habitats Directive provided: “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.”

SULLIVAN LJ said that the judge had been correct to reject the claimants’ submission that the notification of the SSSI was, insofar as it applied to the authorisation of the maintenance of the sea defence, a “project” within the meaning of art 6(3) of the Habitats Directive. In the leading authority on the effect of art 6(3), Landelijke Vereniging tot Behould van de Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserij (Case C-127/02) [2004] ECR I-7405 the European Court of Justice had noted that the Habitats Directive did not define the terms “plan” or “project” and referred to the definition of “project” in art 1(2) of Council Directive 85/337/EEC: “the execution of construction works or of other installations or schemes; other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources.” The court had said that that definition was relevant to defining the concept of plan or project in the Habitats Directive. By no stretch of the imagination could the notification or confirmation of an SSSI be described as an “intervention in the natural surroundings and landscape”. The notification and confirmation of an SSSI was not an intervention at all, it was a means of ensuring that any such intervention took proper account of the features that were of special interest in the SSSI. When considering whether the notification of an SSSI amounted to a “plan” for the purposes of art 6(3) it was important to bear in mind that SSSIs were only one among many areas or features that might be designated because of their special environmental qualities, such as buildings listed as being of special architectural or historic interest, conservation areas and areas of outstanding national beauty. All of these “flagged up” the special interest of the feature, and imposed, or enabled the imposition, of more stringent controls than would otherwise be imposed by the “normal” planning processes over any activities which might harm it, thereby ensuring that before any plan or project that was likely to have an adverse impact upon it was authorised, full account would have been taken of that which was of special interest. A notification “package” under s 28 of the 1981 was therefore most certainly not a “plan” for the purposes of art 6(3) of the Habitats Directive.

LONGMORE and MUMMERY LJJ agreed.

Appearances: Gregory Jones and James Neill (instructed by Parkinson Wright, Evesham) for the claimants; John Howell QC and Jane Collier (instructed by Browne Jacobson LLP, Nottingham) for Natural England; Christopher Balogh (instructed by Legal Services, Waveney District Council) for Waveney District Council, an interested party.

Reported by: Ken Mydeen, barrister