R (Langton) v Secretary of State for Environment, Food and Rural Affairs [2019] EWHC 597 (Admin)

R (Langton) v Secretary of State for Environment, Food and Rural Affairs [2019] EWHC 597 (Admin) concerned a judicial review challenge to Natural England’s assessment of the impact of badger control licences issued in 2017 on Sites of Special Scientific Interest lying within the licence areas, heard in the High Court before Sir Ross Cranston sitting as a High Court judge. The claimant succeeded in part, establishing that Natural England had failed properly to assess special features at certain SSSIs, thereby breaching its statutory duty under section 28G of the Wildlife and Countryside Act 1981.

These proceedings arose from earlier litigation, Langton 1, in which challenges to badger control licencing had been dismissed. Permission had been given for the claimant to pursue additional grounds concerning Natural England’s approach to assessment of possible impacts of granting eight badger control licences in 2017 on ecological features within forty-five SSSIs within the licence areas. Natural England can grant licences under section 10(2)(a) of the Protection of Badgers Act 1992 to kill or take badgers for the purpose of preventing the spread of disease, and may impose conditions. The Secretary of State authorised Natural England to exercise this licensing function.

The claimant contended that badger control operations risked harm to bird populations through fox predation (fewer badgers leading to more foxes) and disturbance, and to other species such as invertebrates and bats. Natural England was said to have omitted relevant interest features which could be adversely affected by operations under the licences. The claimant argued that Natural England’s assessment was fundamentally flawed, resulting in licences being granted in breach of statutory duties, namely the duty under section 28G of the 1981 Act to take reasonable steps to further the conservation and enhancement of the flora, fauna or geological or physiographical features by reason of which a SSSI is of special scientific interest, and the common law duty to take relevant considerations into account.

Natural England conceded that it may have erred as regards three SSSIs and amended the conditions attached to the relevant licences. It contended that alleged omissions would make no difference to the conditions imposed on licences at twenty-five sites, rendering the claimant’s case purely academic as regards those sites. As to the remaining seventeen sites, Natural England disputed that any special features had been omitted from its assessments. Evidence for Natural England was given by Mr John Finnie, Principal Adviser on terrestrial protected sites, and Mr Ivan Lakin, an ornithologist specialist. Mr Dominic Woodfield gave evidence for the claimant. A Scott Schedule was prepared identifying the SSSIs at issue, the species said to be omitted from assessment, and the parties’ pleaded positions.

The court noted that Part II of the 1981 Act governs nature conservation. Section 28(1) requires Natural England to notify land as a SSSI where it is of the opinion that any area of land is of special interest by reason of its flora, fauna, or geological or physiographical features. Under section 28(4), notification must specify the flora, fauna or features by reason of which the land is of special interest, operations likely to damage them, and Natural England’s views about management. Section 28G imposes a duty on section 28G authorities, including Natural England, to take reasonable steps consistent with the proper exercise of their functions to further the conservation and enhancement of the flora, fauna or features by reason of which the site is of special scientific interest. Offences are created under section 28P including where a section 28G authority in the exercise of its functions carries out or permits operations damaging special features without first complying with notification requirements.

The court accepted that Natural England must in licensing badger control focus on the special features of a SSSI. Discharge of those duties may require the imposition of conditions or, ultimately, refusal of licences. The issue was what constituted the special features of a SSSI which must be assessed in relation to the grant of badger control licences. The court held that these are the features to be found in the citation for a site which results from the notification procedure contained in section 28. The claimant argued for a broader scope of assessment, contending that section 28G was not expressed by reference to the reasons for notification and that consideration must be given to the actual interest of the site. He relied on the denotification procedure in section 28D, which is not linked to the original reasons for notification. The court rejected this, holding that as a matter of statutory interpretation the duty in section 28G is focused on special features, mirroring the wording of section 28(4)(a) and running through other parts of Part II of the 1981 Act. Without renotification or denotification the special features on notification remain as they are as a matter of law.

The claimant also pointed to the Guidelines for the Selection of Biological SSSIs, which state at paragraph 2.7 that the principle behind designation is to protect all component parts of the habitat within an SSSI and all species within those habitats. The court held that a general statement of policy could not override the statutory and common law duties, which focus on the special features of a site. The claimant further argued that assistance could be derived from other statutory provisions including section 2 of the Natural Environment and Rural Communities Act 2006, the Environmental Damage (Prevention and Remediation) (England) Regulations 2015 and European instruments. The court held that no duty flowed from that statutory language additional to that in section 28G, and that the regulations performed a different function. The fact that a species had European protected status said nothing about the quality of its representation at a particular site; it needed to be a special feature of a SSSI before it must be taken into account in decision making on badger control licensing.

The claimant submitted that the Operations Likely to Damage (OLDs) and Views about Management (VAMs) might identify or assist in interpreting special features. Natural England submitted that such documents would generally be of little assistance. The court accepted Natural England’s position. OLDs identify matters which could affect special features but can be broad in scope, pursuant to their statutory purpose of ensuring Natural England has the ability to influence site use through the consenting function in section 28E. As to VAMs, section 28(4) expressly states that these can extend to management measures beyond the special features. The court held that an OLD or a VAM for a site would generally be of little if any assistance in interpreting a SSSI citation.

Natural England submitted that there could be reference to the guidelines to understand, for example, that a species mentioned in a citation was not a basis for notification because it did not occur in the required quantity or density, and that the court should be slow to move away from its interpretation of SSSI citations since it was the expert body with responsibility for issuing and interpreting them. Natural England relied on the limited role of the court in construing planning policy. The court rejected this approach. SSSI citations can lead to legal consequences for persons other than Natural England. Operations in OLDs of which landowners must be aware are specified on the back of special features in citations. Special features in citations trigger the section 28G duty for public bodies to refrain from taking certain steps and duties such as that in section 28I(2) to give notice to Natural England. Offences in section 28P are linked to the special features of a site set out in citations. Because SSSI citations can lead to legal consequences, there cannot be interpretations requiring detailed analysis of how, under the guidelines, notification was made at some point in the distant past. The guidelines were sometimes difficult to follow and the citations for many of the sites at issue predated the 1989 guidelines. Further, there cannot be meanings of a citation which can only be divined through Natural England’s practices.

The court held that citations are to be interpreted in the ordinary way by reference to their language, structure and context. The task is to identify in each citation the special features leading to notification. This is not always straightforward because SSSI citations frequently contain descriptions of other valuable features present on the site. In modern citations the features listed under the heading “Reasons for Notification” will generally be the features of special interest notified under section 28(4)(a). Fauna or flora mentioned under the general description heading will generally not be features of special interest because they do not appear under the “Reasons for Notification” heading. Older citations are more difficult. They sometimes contain a paragraph at the outset which obviously summarises the features of special interest. If they refer to a species as being of national importance or significant this would be a strong indication that it was a feature of special interest. However, because a feature does not have national importance or significance in a citation does not preclude it being a special feature.

The forty-five SSSIs fell into three categories. First, Natural England reviewed the sites to identify any at which there had been an omission of a feature of special interest and where that omission would make a difference to the conditions imposed. The review identified three such sites. At Lulworth Park and Lake SSSI the review concluded that there had been an omission from the SSSI spreadsheet of a feature of special interest, namely a lake supporting water-birds. A prohibition was imposed on shooting within 200m of the lake on 17 September 2018 before permission was given. The claimant contended that there had been two seasons without that condition. The court accepted Natural England’s evidence that the very low intensity of licensed activity meant that there was only a low probability that any shot at all was fired within 200m of the lake and that to the extent any shots were fired this negligible additional activity would not have resulted in any credible risk of an adverse effect on the populations using the lake. At The Quantocks SSSI the claimant contended that although woodland breeding birds had been assessed, others using the periphery of woodland when breeding had not been assessed. Natural England extended the prohibition on activity in woodland areas to a general prohibition on shooting during the bird breeding season at the site. However, no shooting could take place during the bird breeding season so the issue was academic. At Cranbourne Chase SSSI Natural England accepted that breeding birds should have been assessed and wrote to the claimant on 17 September 2018 that it would impose a licence condition to prohibit badger control in the bird breeding season. Licensed activity had not taken place during the bird breeding season so the issue was academic.

Secondly, the court held that Natural England was correct in its submission that the court should exclude from consideration sites where an omission to assess would make no difference, in other words where it would not result in the conditions applied to the badger control licences being different. The legal basis of the no difference principle was twofold. First, under section 31(2A) of the Senior Courts Act 1981 the court must refuse relief in cases where it appears to be highly likely that an alleged omission would not have resulted in a substantially different outcome. Section 31(2A) is not restricted to conduct of a procedural or technical kind and can include a failure to consider a matter. Secondly, this statutory power should be seen against the background of the court’s general disinclination to give advisory opinions and its discouragement of academic points. One reason for this is the need to allocate resources proportionately. At many sites the claimant accepted before or during the hearing that the no difference principle applied. For example, at Berry Head to Sharkham Point SSSI bats at the site had been assessed as part of South Hams Special Area of Conservation and shooting and lamping activities were prohibited. The claimant initially pointed out that there was no prohibition on going within 20m of the site, a condition applied at other sites with protected bat populations. Natural England replied that the 20m cordon was unnecessary since the cave entrances used by bat colonies existed well inside the site boundary, and the claimant accepted the point at the hearing.

As to two sites in Licence Area 16, Dorset, Blue Pool and Norden Heaths SSSI and Hartland Moor SSSI, the claimant initially did not accept that the word “avoid” in the licence conditions would necessarily be understood by licensees as a prohibition. Natural England said that in the interests of not spending further time or costs it would add a note to licences from the 2019 season explaining that “avoid” was a prohibition, and the claimant accepted that the no difference principle was engaged. With nine sites in Licence Area 16, Dorset, the claimant contended that the no difference principle was no more than arguably engaged because he believed over-wintering Dartford warblers could be impacted by shooting activity. These SSSIs were part of the Dorset Heathlands SPA. It had been assessed for Dartford warbler and woodlark in 2017. The conclusion was that there would be no adverse effect on these species, taking into account the nature of licensed activities and an agreed prohibition on shooting during the bird breeding season. In Langton 1 the court accepted Natural England’s evidence and found that the claimant did not succeed in that part of his judicial review claim. Subject to any appeal that finding stood.

That left five sites, all in Licence Area 16, Dorset, where Natural England argued that the no difference principle applied. At four of these the claimant took the opposite view because he submitted that butterflies or other invertebrates were not protected by the licence conditions restricting the placement of traps to existing sett footprint or areas of scrub. Mr Lakin stated in his second witness statement that placement of traps in areas of scrub would typically be underneath plants and often upon largely bare, shaded ground, and that bushes would not be dug up or cut down. Thus there would not be any material damage to scrub habitats supporting invertebrate communities including butterflies. Mr Lakin also calculated that the affected area within a badger control licence area was equivalent to that of one beach towel per 198 Premier League football pitches over a short period each year. The claimant submitted that this comparison could not be taken at face value, that the location of traps in relation to special features was unknown, and that evidence in Langton 1 was that operations were clustered around badger setts and could typically involve eight to ten repeat visits over a short period. He also made the point about the workability of conditions relying on contractors to make judgments about avoiding special features of a SSSI. Notwithstanding this, it seemed to the court that the chances of such activity materially impacting any scrub habitat or any butterfly population that might utilise this habitat were negligible. For similar reasons to those in Langton 1 there was no reviewable flaw in Natural England’s decision-making. It could reasonably conclude that potential disturbance from badger control operations would not have significant adverse effects. As to bats at Creech Grange SSSI, the court accepted Natural England’s submission that the claimant’s complaints were academic. The site was an outbuilding surrounded by a complex of buildings, gardens and tracks, and no licensed activities would be taking place within the building or in its vicinity.

Thirdly, there were seventeen sites where the SSSI citation needed to be interpreted to identify whether Natural England had taken all special features into account in the licensing process. The court considered each of these sites in turn. At Severn Ham, Tewkesbury SSSI the court was just persuaded that the claimant was correct and that Natural England’s assessment was deficient. The short citation had only one heading, “Reasons for Notification”, with no mention of description. Trying to distinguish between the reasons for notification and description was not assisted by the heading which swept up everything under a reasons rubric. At Coombe Hill Canal