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

Selection of a site as a candidate special area of conservation must be determined by the conservation criteria in the Habitats Directive. Economic, planning and other consequences of designation cannot justify excluding a site that otherwise satisfies those criteria. Where a public authority voluntarily undertakes consultation, it must conduct the exercise fairly, but fairness depends on the circumstances. The consultation must provide a genuine opportunity to make informed representations and the decision-maker must conscientiously consider them. A broad scientific judgment is permissible, provided it has a rational evidential basis. Site boundaries may be drawn by reference to coherent management units where that approach reasonably protects qualifying habitats. A challenge may retain a useful purpose even after subsequent European and domestic designation if the findings could assist related proceedings.

The claimants, trustees and freehold owners of most of Halkyn Mountain, challenged the Welsh Assembly Government’s decision of 26 March 2003 to include the amended site in a list of candidate special areas of conservation submitted to the European Commission.

The grounds alleged inadequate consultation, irrational reliance on great crested newts and calaminarian grassland, failure to consider an existing planning permission and possible translocation of newts, and irrational inclusion of Holywell Golf Course. The defendant argued that the proceedings had become pointless after the European Commission adopted the site and Wales designated it as an SAC, and that the claim was out of time.

1. Useful purpose and delay. Although the site had subsequently been adopted and designated, the claimants could seek to rely on findings in proceedings before the Court of First Instance and might seek reconsideration by the Commission. The claim therefore retained a legitimate purpose. The later decision effectively superseded the earlier 2001 decision and was independently amenable to judicial review. The claimants acted promptly after notification of the decision, and time was extended in any event.
2. Consultation. There was no statutory duty to consult, but having chosen to consult the defendant had to act fairly. The principles stated in R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213, as discussed in R (Capenhurst and Others) v Leicester City Council [2004] EWHC 2124 (Admin), were satisfied overall. The consultation was genuine, representations continued over a substantial period, the material relied on was supplied, and the claimants had expert assistance. The later Stevens report was supplied before the decision and the claimants could have commented on it. The consultation was therefore fair and sufficient.
3. Scientific and statutory criteria. Under article 4(1) and Annex III of the Habitats Directive, the relevant assessment is exclusively directed to conservation of qualifying habitats and species. Applying R v Secretary of State for the Environment, Transport and the Regions, ex parte First Corporate Shipping Ltd [2001] 4 PLR 1, the existence or likely implementation of a planning permission could not lawfully justify excluding an otherwise suitable site. Its possible effect on newts was not a legally relevant consideration in deciding whether to include Pen yr Henblas or Aberdo.
4. The presence of 325 great crested newts provided a rational basis for inclusion. The assessment required a broad scientific judgment concerning population, geographical range and other matters. The evidence also rationally supported reliance on the calaminarian grassland, which was the best and largest example known in north-east Wales. The Interpretation Manual permitted judgment as to the inclusion of semi-natural sites.
5. Including the whole of Holywell Golf Course was rational because it was an open space under a single management regime. Existing boundary features could reasonably be used instead of drawing boundaries tightly around scattered stands of grassland.
6. The permission application was granted, but the judicial review claim was dismissed.