Western Power Distribution Investments Ltd, R (on the application of) v Countryside Council for Wales

In deciding whether land qualifies as a Site of Special Scientific Interest, the notifying authority must apply the statutory criteria and exercise its informed scientific judgment. It need not identify the single best site, or complete every possible survey, before notifying a site which independently satisfies those criteria. Resource constraints cannot determine whether notification is required, although they may affect subsequent management. A threat of development may properly prompt investigation and notification, provided the decision is based on the site’s scientific value rather than an improper purpose. Judicial review does not permit the court to substitute its assessment for that of a specialist conservation body unless an error of law or irrationality is established.

The claimant owned Llanishen and Lisvane Reservoirs and sought planning permission for housing development. Surveys identified an unusually diverse population of waxcap fungi. The Countryside Council for Wales notified the reservoir embankments as a Site of Special Scientific Interest under the Wildlife and Countryside Act 1981 and later confirmed the notification.

The claimant challenged the notification and confirmation, alleging irrationality, failure to obtain and consider sufficient comparative information, misapplication of scientific guidance, and reliance on an unlawful policy concerning threatened sites and available resources. The central issues were whether the statutory criteria were met and whether the Council’s investigative and evaluative process was lawful.

1. Claim dismissed. The Council was entitled to confirm the notification. The evidence that the site contained approximately 28 of the 35 waxcap species was sufficient to support the conclusion that it was of special scientific interest and capable of meeting the statutory criteria.
2. Under section 28 of the Wildlife and Countryside Act 1981, the Council had to notify land if it was of the opinion that the statutory criteria were satisfied. The statutory duty did not require selection of only the best site. The JNCC guidance contemplated that more than one site might qualify within an Area of Search, particularly where a site met the minimum standards. The Council was therefore not required to delay notification until every potentially better or comparable site had been identified.
3. The Council was entitled to rely on the methodology and opinions of its specialist advisers and to prefer them over the claimant’s expert evidence. The court could not resolve the underlying scientific dispute or substitute its own assessment. The appropriate supervisory question was whether an error of law, irrationality, or a material failure to consider relevant matters had been shown.
4. Resource considerations could not determine whether a site met the notification criteria. They might be relevant to management after notification, but a site satisfying the statutory criteria had to be notified. It was also lawful to investigate a site because it was under threat, provided the decision was genuinely based on its scientific value and was not driven merely by the threat to development.
5. The Council was required to obtain such information as was reasonably necessary, but it did not have to exhaust every possible avenue of investigation. The decision would be unlawful only if taken without information in the absence of which no reasonable decision-maker could have acted. On the evidence, further surveys were unnecessary and would not have altered the result.
6. The Council did not apply its flawed resource-and-threat policy when confirming the notification. It correctly treated the existence of a threat and the owner’s willingness to co-operate as irrelevant to whether the statutory criteria were met. The claim was dismissed.