Fisher, R (on the application of) v English Nature

Under section 28 of the Wildlife and Countryside Act 1981, English Nature must notify land when, on its expert judgment, it is of special scientific interest by reason of its fauna. The statutory language imposes no limit on the area that may be notified and does not require national importance as a separate criterion.

Confirmation requires a genuine, open-minded reconsideration after investigation, consultation and consideration of objections. English Nature may take account of a site's European significance and proposed SPA status, but must independently apply the section 28 criteria rather than act on Government policy alone. A challenge based on Article 1 of the First Protocol requires evidence of a disproportionate impact; general objections to regulatory controls, uncertain land-value effects and consultation requirements do not establish disproportionality.

English Nature notified and then confirmed 13,335.70 hectares of Breckland farmland as a site of special scientific interest because of its internationally important population of stone-curlew. The land was also within a proposed special protection area.

The landowners sought judicial review, contending that English Nature had misapplied section 28 of the Wildlife and Countryside Act 1981, had acted on immaterial considerations connected with SPA designation, and had interfered disproportionately with their property rights under Article 1 of the First Protocol. Lightman J dismissed the claim in [2003] EWHC 1599 (Admin). The appeal concerned whether the confirmation decision was unlawful on those grounds.

1. Appeal dismissed unanimously. Lord Justice Wall, with whom Mr Justice Pumfrey and Lord Justice Auld agreed, held that English Nature was entitled to notify and confirm the Breckland Farmland as an SSSI.

2. Section 28(1) of the Wildlife and Countryside Act 1981 required English Nature to notify once it reasonably formed the expert opinion that the land was of special interest by reason of its fauna. An internationally important population of stone-curlew plainly satisfied that description. The Act did not prescribe a maximum size for an SSSI, require national importance as an additional criterion, or prevent land from being both an SSSI and an SPA.

3. The confirmation process under section 28(5) was not an automatic rubber stamp. English Nature had to investigate, consult, receive and analyse objections, and reconsider whether its original assessment remained correct. The court preferred to view section 28(5) as conferring a power not to confirm, exercisable after that genuine and open-minded process. If the statutory factors and the appropriateness of the specified damaging operations remained established, however, the scope for refusing confirmation was limited.

4. English Nature had rationally changed its earlier policy on temporary habitats after informed consideration. It could consider the site's European significance and its proposed SPA status. Those matters did not displace the statutory question. The Council had independently applied the section 28 criteria and had not merely yielded to Government policy.

5. Article 1 of the First Protocol could in principle support judicial review if a disproportionate impact had not been taken into account. On the evidence, however, the alleged effects were insufficient. The relevant operations likely to damage had not been challenged, agricultural use had been preserved as far as possible, the evidence of depreciation was equivocal, and the further consultation requirements did not establish disproportionate interference.

6. The confirmation decision was rational, procedurally fair and lawful. The appellants were ordered to pay English Nature’s appeal costs, to be assessed if not agreed. Permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): Appeal dismissed: [2004] EWCA Civ 663.
• Administrative Court: Lightman J dismissed the application for judicial review and refused permission to appeal: [2003] EWHC 1599 (Admin); reported at [2004] 1 WLR 503.