Bown v Secretary of State for Transport

An area identified as a potential Special Protection Area remains a proposal until formally classified. Its treatment must reflect the relevant ornithological evidence available when the decision is made. Earlier evidence that an area qualified does not require its permanent treatment as a protected area where better and current scientific evidence shows that it no longer meets the applicable criteria.

The special protection regime for an unclassified area applies only where the area should have been classified. A published decision excluding an area from the list of classified and potential sites must be challenged promptly. It cannot ordinarily be attacked many years later through proceedings concerning a development promoted in reliance on that decision.

The Secretary of State confirmed highway and compulsory purchase orders for the Western Bypass of Barnstaple following a public inquiry. The appellant, a local resident and inquiry objector, contended that the Taw and Torridge Estuary should be treated as a Special Protection Area under the Wild Birds Directive, although it had never been formally classified.

Earlier studies had identified the Estuary as a potential or proposed Special Protection Area. It was omitted, however, from the Government's published 1994 list of classified and potential sites. Current advice from English Nature and the Joint Nature Conservation Committee indicated that the Estuary did not meet the applicable selection guidelines.

Collins J dismissed the statutory challenge. The appeal raised whether the earlier identification created a permanently protected “constructive” Special Protection Area and whether the Secretary of State had been required to address the conditions for declassification.

1. Appeal dismissed. The inspector and Secretary of State were entitled in 2002 to proceed on the basis that the Estuary was neither a Special Protection Area nor likely to become one. The conclusion of Collins J was correct.

2. The earlier studies disclosed a strong case for classification between 1990 and 1992. Nevertheless, classification required a judgment by the Secretary of State on the ornithological advice. By publication of the 1994 planning guidance, it became public knowledge that the Estuary had been excluded from the list of classified and potential sites. Any person with sufficient interest could then have challenged that decision by prompt judicial review or approached the European Commission. It was far too late to challenge the 1994 decision through these proceedings, especially after public authorities and developers had relied on the published list for nine years.

3. The expression “constructive Special Protection Area” could describe the protection afforded under article 4 of the Wild Birds Directive to an area which should have been classified. It did not convert every potential site into a permanently protected area. Until classification, a potential site remained a proposal. The decision-maker had to consider all relevant information available at the date of decision.

4. Formal classification was a legally significant step. It affected conservation obligations and landowners, required notification, and resulted in registration as a local land charge. Because the Estuary had never been classified, no question of declassification arose.

5. The European authorities did not require an area to be treated as protected merely because earlier evidence had suggested that it qualified. Commission v Netherlands [1998] ECR I-3031 showed that a scientific inventory such as IBA 89 was a reference point rather than conclusive evidence. It could be displaced by better scientific evidence. The current guidelines and assessment were unchallenged and supported the Estuary's exclusion.

6. Berkeley v Secretary of State [2001] 2 AC 603 did not support a challenge brought more than eight years after the relevant decision. Its statements about the narrow discretion to withhold relief for breach of Community law had to be read in the context of that case, which did not concern delay or demonstrated prejudice to other interests.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court upheld Collins J's dismissal of the statutory challenge. No order was made as to costs, and leave to appeal to the House of Lords was refused.

2. High Court, Queen’s Bench Division, Administrative Court: Collins J dismissed the challenge on 26 March 2003. He held that current scientific material showed that the Estuary did not qualify for classification as a Special Protection Area. No citation is stated in the judgment.