Newsum & Ors v Welsh Assembly Government

Under regulation 40(3)(c) of the Conservation (Natural Habitats etc) Regulations 1994, a person may have a defence where damage to a protected species is the incidental result of an otherwise lawful operation and could not reasonably have been avoided by carrying out that operation differently. Knowledge of the probable consequences does not itself make capture, killing or disturbance deliberate.

In deciding whether to grant a regulation 44(2)(e) licence, the authority must consider whether protecting the species itself constitutes an admissible overriding public interest. An existing planning permission is relevant, but does not automatically establish overriding public interest or require a licence. A decision that excludes the interaction between the permission, the regulation 40 defence and the risk to the species is irrational for failure to consider a material consideration.

The claimant trustees owned a quarry containing a substantial population of great crested newts and wished to resume quarrying under existing planning permissions. They applied to the Welsh Assembly Government under regulation 44(2)(e) of the Conservation (Natural Habitats etc) Regulations 1994 for a licence to translocate the newts to a specially prepared receptor site.

The Assembly refused the application, principally because there was no present national or regional need for the quarry products and the existence of planning permission did not itself establish imperative reasons of overriding public interest. The claimants sought judicial review, arguing that the Assembly had failed to consider the protective purpose of the translocation, the legal effect of the planning permission and the regulation 40(3)(c) defence.

1. Claim allowed. The refusal dated 14 February 2003 was quashed. The application was remitted to the Welsh Assembly Government for further consideration in the light of the judgment.
2. Quarrying could lawfully resume under the existing planning permission, subject to the statutory protections for the newts. If the operation caused prohibited consequences under regulation 39, regulation 40(3)(c) required consideration of whether the operation was otherwise lawful, whether the consequence could reasonably have been avoided by pursuing the same operation by other means, and whether the consequence was incidental to that operation.
3. The defence was not limited to operations authorised by a licence or confined to the implementation of a planning permission. It could apply to all lawful activities. The probable consequences of an otherwise lawful activity did not, without more, establish a deliberate offence under regulation 39(1)(a)–(c).
4. The expression “other imperative reasons of overriding public interest” in regulation 44(2)(e) was widely drawn and was not confined to interests ejusdem generis with public health or public safety. It could include beneficial consequences of primary importance for the environment, including protection of the species itself where the species would otherwise be at risk from a lawful operation.
5. The Assembly was entitled to consider demand for quarry products and the commercial likelihood of recommencement. It was not entitled to exclude the risk of harm to the newts and the interaction between the planning permission and the regulation 40(3)(c) defence. That was a failure to take account of a material consideration and rendered the decision irrational in the Wednesbury sense.
6. The quarry habitat was “semi-natural” within the Habitats Directive. Its creation through commercial activity did not prevent it from receiving protection.

Not stated in the judgment.