Bown, R (on the application of) v Secretary of State for Transport

Member States must classify as special protection areas the most suitable territories for protected birds, but the obligation is assessed by relevant ornithological and scientific evidence. An inventory of important bird areas is not legally binding, although it may provide a scientific basis for assessing compliance. The Government may rebut that evidence with contrary scientific material. Areas which should have been classified remain subject to the protective regime under Article 4(4) of the Wild Birds Directive. In deciding whether to authorise development likely to disturb protected species, the decision-maker must consider the disturbance, mitigation measures and the licensing criteria under the domestic habitats regulations. An order may nevertheless be confirmed where the evidence shows that mitigation will minimise the disturbance and a licence would probably be granted.

The claimant sought judicial review of the Secretary of State’s decisions confirming compulsory purchase and highway orders for the Western Bypass of Barnstaple, including a bridge over the Taw estuary. The estuary was an SSSI and supported substantial bird populations and otters.

Two grounds were advanced. First, the estuary allegedly should have been designated as a special protection area under Article 4 of the Wild Birds Directive, so that the proposed bridge would breach the Directive’s protective regime. Secondly, construction was likely to disturb otters contrary to regulation 39 of the Conservation (Natural Habitats etc) Regulations 1994, and the Inspector and Secretary of State had allegedly failed to apply regulation 44. The central issues were whether the evidence established an obligation to designate the estuary and whether the decision-makers had lawfully addressed disturbance and mitigation.

1. The claim was dismissed. The Secretary of State and the Inspector were entitled to conclude that the Taw-Torridge Estuary did not meet the applicable SPA selection guidelines. Although the IBA material was relevant scientific evidence, it was not conclusive. The later material, including the English Nature letter and the JNCC guidelines, provided sufficient scientific evidence to rebut the contention that the estuary required designation.
2. The decisions in Commission v Spain [1993] ECR I-4221, Commission v Netherlands [1998] ECR I-3031 and Commission v France [2000] ECR I-10799 established that the Directive’s obligations arise before an actual decline or extinction risk, that IBA evidence may be used to assess compliance, and that a Member State cannot benefit from failing to designate an area which qualifies. Those principles did not assist the claimant because the evidence did not establish that this estuary qualified.
3. Under Article 12 of the Habitats Directive and regulations 39 and 44 of the Conservation (Natural Habitats etc) Regulations 1994, likely disturbance to otters and the matters relevant to licensing had to be considered. The absence of an express reference to each regulation 44(3) criterion was not fatal. The Inspector’s findings on mitigation addressed the relevant matters and would assist the licensing authority.
4. The decision-maker was entitled to balance the limited, mitigated disturbance against the public and economic benefits of the bypass. It was open to the Secretary of State to conclude that the proposed measures would reduce disturbance to a level insufficient to justify refusing confirmation of the orders. Costs were ordered against the claimant, with detailed assessment for the period covered by legal aid and summary assessment of £2,268.75 for the remaining period, subject to section 11 of the Access to Justice Act.