Fisher & Anor v English Nature

Under section 28 of the Wildlife and Countryside Act 1981, English Nature must notify and confirm a site where, in its expert judgment, the statutory criteria are satisfied. The provision confers judgment, not a discretion to choose an alternative conservation scheme.

English Nature may consider a site’s European conservation significance and its possible relationship with a special protection area. It may not decline confirmation because voluntary agreements or SPA designation appear less burdensome or more effective. Guidelines and past practice may inform, but cannot constrain, the statutory judgment. Judicial review does not permit the court to substitute its own expert assessment. The Article 1 property-rights challenge failed because the complaint was directed to the decision rather than any incompatible statutory provision, and the statutory scheme pursued a legitimate environmental aim within the relevant margin of appreciation.

The claimants challenged English Nature’s confirmation of the notification of the Breckland Farmland, Norfolk and Suffolk Site of Special Scientific Interest, which included their land. The site covered over 13,335 hectares and was notified because of its internationally important population of stone-curlews.

The claim alleged irrationality, excess of jurisdiction and incompatibility with article 1 of the First Protocol to the European Convention on Human Rights. The claimants argued that protection could instead be achieved through a special protection area or voluntary agreements, and that the area was too extensive for an SSSI. The central issues were whether section 28 permitted English Nature to take those alternatives into account and whether the confirmation was legally irrational or disproportionate.

1. Application dismissed. English Nature had lawfully confirmed the SSSI notification, and the claimants’ challenge was dismissed with costs.
2. Section 28(1) imposed a duty to notify where English Nature formed the opinion that the statutory criteria were satisfied. Although section 28(5) used the word “may”, continued satisfaction of the criteria meant that confirmation was the only lawful course. English Nature could not withdraw or allow the notification to lapse in order to avoid the statutory consequences.
3. The notification and confirmation stages required successive exercises of expert judgment. English Nature had to decide whether the land was of special interest, identify the relevant flora or fauna, and specify operations likely to damage them. The Guidelines and past practice could inform that judgment but could not restrict it. The court expressly declined to follow the contrary obiter dictum in R v Nature Conservancy Council ex parte London Brick Property Ltd, [1996] Env. LR 1.
4. English Nature was entitled to consider the site’s function as part of a larger area of European importance and its suitability for SPA classification. The existence of a potentially less onerous alternative did not displace the statutory duty. The Council’s minutes and the advice given at its meeting showed that it addressed the correct question: whether the land satisfied section 28.
5. The irrationality challenge failed. The court applied the approach in Simplex v Secretary of State, [1998] 3 PLR 25, but found no material error. English Nature’s expert assessment of the area and its extent was one for the specialist regulator, not the court, to make. The reasoning in R (on the application of Aggregate Industries Ltd) v English Nature, [2003] Env. LR 3, supported that conclusion.
6. The Article 1 complaint was misconceived. Confirmation of an opinion did not itself interfere with property rights, and any challenge to restrictions or other statutory consequences had to be directed to the relevant statutory regime. In any event, environmental protection pursued a legitimate public interest, and the statutory controls fell within the legislature’s and English Nature’s area of judgment.

First-instance judicial review in the Administrative Court. The application was dismissed with costs. Permission to appeal was sought orally, but the judge considered that the appeal had no prospect of success and directed the claimants to present any application to the Court of Appeal.