planning and environmental law update
The notification of a Site of Special Scientific Interest cannot be a plan or project
R (on the application of Boggis) v
Natural England [2009] EWCA Civ 1061
The Court of Appeal, in their ruling of 20 October 2009, have
narrowed the circumstances under which the notification of a Site
of Special Scientific Interest (SSSI) can be challenged on
technical grounds by ruling that the notification of an SSSI cannot
amount to a 'plan or project' under the Habitats Directive.
Natural England notified coastal land near Easton Bavents as an
SSSI. The site was notified for a variety of reasons including
geological interest, geomorphological interest and bird
interest.
Mr Boggis challenged the decision on two grounds. The second
ground was to the effect that the notification of an SSSI
constituted a plan for the purposes of Article 6(3) of the Habitats
Directive and therefore notification should have been subject to an
‘appropriate assessment’ under that Directive.
A plan or project is not defined by the Directive. The leading
European case describes a project as an “intervention into the
natural surroundings and landscape”.
It was held that the notification of an SSSI was clearly not a
physical ‘intervention’ in the natural surroundings, and so could
not be considered to be a ‘project’.
The court also held that the notification of an SSSI could not
be a plan. Rather, it was the ‘flagging up’ of the special interest
of the area. SSSIs, along with other notifications such as
Conservation Areas and Areas of Outstanding Natural Beauty, are not
themselves plans but rather a means of ensuring that land use and
other plans take proper account of the environmental features of
special interest. It was held that the list of operations likely to
damage the special interest (operations for which consent must be
obtained from Natural England prior to carrying them out on the
SSSI) was no more a 'plan' than the requirement for Conservation
Area Consent for certain operations in a Conservation Area. It was
also argued by the caimants that Natural England’s statement of
views about the management of the site (which it is required to
provide on notification of an SSSI) could amount to a plan.
However, this was rejected as the statement had no statutory
significance and was simply intended to give owners and occupiers
of SSSIs information about their sites.
One further point addressed by the court was the question of the
court’s discretion in circumstances where it was argued by a third
party that an appropriate assessment should have been carried out.
The court found that the need for an appropriate assessment is
conditional on there being a probability or a risk of significant
effects on the site concerned. A third party could not, therefore,
expect the court to quash a decision simply because an appropriate
assessment had not been carried out. The complainant would have to
prove that there was a probability or risk of significant effects
arising from the plan or project under consideration (either alone
or in combination with other plans or projects) before the court
would quash the relevant decision.
Mr Boggis is currently seeking permission to appeal the
judgement in the Supreme Court and have matters referred to the
European Court of Justice. Browne Jacobson is acting for Natural
England in this matter.
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