JHM Newsum, R (on the application of) v Welsh Assembly Government

Under the Conservation (Natural Habitats etc) Regulations 1994, a licence application must be assessed by reference to the purpose forming its basis. A conservation purpose falls within regulation 44(2)(c), whereas regulation 44(2)(e) concerns a project or operation justified by an imperative reason of overriding public interest which will affect protected species. Preservation of the species itself is not such a reason under regulation 44(2)(e). Planning permission does not itself establish an imperative reason of overriding public interest. A licensing authority need not determine conclusively whether the proposed operation would attract criminal liability under regulation 40(3)(c), but must recognise the possibility that lawful operations may cause incidental harm.

The Trustees of the Estate of the Duke of Westminster sought a licence to relocate great crested newts from a quarry to a prepared site. The application was made to the Welsh Assembly Government under regulation 44(2)(e) of the Conservation (Natural Habitats etc) Regulations 1994. The Assembly refused it, reasoning that there was no present overriding public interest in working the quarry and that the possible defence under regulation 40(3)(c) was immaterial.

Pitchford J quashed the decision, holding that protection of the species was capable of amounting to an admissible public interest and that the Assembly had failed to consider a material consideration. The central issue on appeal was whether preserving the newts could constitute an imperative reason of overriding public interest under regulation 44(2)(e), and whether the Assembly had lawfully approached the application.

1. Appeal allowed. The Assembly was entitled to reject the licence application, and the order quashing its decision was set aside. Costs were awarded to the Assembly, subject to detailed assessment if not agreed.
2. The purpose forming the basis of a regulation 44 application determines which licensing provision and decision-maker apply. If the purpose is simply to conserve great crested newts by relocating them, the application falls under regulation 44(2)(c), for determination by the Countryside Council for Wales. If the purpose is to carry out quarrying which will affect the protected species or its breeding sites, the relevant provision is regulation 44(2)(e), and the quarrying must be justified by an imperative reason of overriding public interest.
3. There may be overlap between the purposes in regulation 44(2), but that overlap does not make preservation of the species itself an imperative reason of overriding public interest under regulation 44(2)(e). The general words contemplate a vital public project or plan which will necessarily affect protected animals or plants, rather than a purpose of preserving them.
4. A licensing authority need not determine conclusively whether the proposed operation would constitute an offence under regulation 39 or be protected by regulation 40(3)(c). It is sufficient to recognise that a lawful operation may cause incidental killing of protected animals or damage to their breeding sites. The option of not carrying out works authorised by existing planning permission is not, by itself, a satisfactory alternative that automatically defeats an application for a licence.
5. Planning permission was relevant but did not itself establish an imperative reason of overriding public interest. The Assembly was entitled to assess independently whether the purpose relied on, ultimately the proposed quarrying, met that statutory threshold.

• Court of Appeal (Civil Division): [2004] EWCA Civ 1565; appeal allowed with costs.
• High Court: Pitchford J, judgment dated 4 February 2004; the Assembly’s refusal was quashed.