Boggis, R (on the application of) v Natural England & Anor

Permission for judicial review may be granted where the proposed ground has real prospects of success. The permission tests for an appeal and for judicial review are, in substance, similar. A reasonably arguable European Union law point may provide an additional reason for permission where the court cannot conclude that it is acte clair against the claimant, particularly if refusal would prevent any further appeal or reference. Part 52.15 permits the Court of Appeal to grant permission for judicial review instead of permission to appeal. The merits of whether SSSI designation was a plan or project, and whether an appropriate assessment was required under the 1994 Habitat Regulations, remained for substantive determination.

This was a renewed application arising from the Administrative Court’s decision on an application for judicial review of Natural England’s designation of land as a Site of Special Scientific Interest.

Mr Nicholas Blake QC granted permission on Ground A but refused permission on Ground G and the other grounds. The applicants pursued only Ground G, which raised whether the designation was a plan or project under Directive 92/43/EEC and the relevant parts of the 1994 Habitat Regulations, potentially requiring an appropriate assessment. The central issue was whether Ground G was sufficiently arguable to proceed to substantive judicial review and whether the Court of Appeal should grant permission under Part 52.15.

The application was granted. Permission was given for Ground G to be included in the substantive judicial review application. The court did not grant permission to appeal, since that would cause further expense and delay. Ground A remained live; Grounds B to F were no longer pursued.

1. Permission threshold. Mummery LJ held that the tests for permission to appeal and permission for judicial review were, in substance, similar. A real prospect of success on Ground G was sufficient to justify granting permission for judicial review.
2. European Union law issue. Further documents, a decision of the European Court and a refused application for consent showed that the applicants had a reasonable argument on the European Union law point. The court therefore did not determine whether designation was in fact a plan or project, or whether an appropriate assessment was required. Those issues were left for the substantive hearing.
3. Reference and acte clair. The applicants relied on the possibility that the Court of Appeal was the court of last instance and might have to grant permission or make a reference under Article 234 of the treaty. Mummery LJ could not say that the matters relied upon were acte clair against the applicants. That was an additional reason for granting permission. The court referred to the 1991 unreported decision in R v HM Customs and Excise ex parte Davies Products (Liverpool) Ltd, which recognised the importance of preserving an applicant’s opportunity to obtain a European reference where appropriate.
4. Case management. Mummery LJ was satisfied that Grounds A and G were distinct and would not materially lengthen the substantive hearing. Munby J agreed and added that, because the remaining points were short and not evidence-dependent, the parties should agree a drastically reduced bundle, reading list and bundle of authorities, removing material relating to the defunct grounds.

Order: application granted.

• Court of Appeal (Civil Division): On the renewed application, granted permission for Ground G to proceed as part of the substantive judicial review under Part 52.15.
• Administrative Court: On 14 September 2007, Mr Nicholas Blake QC granted permission on Ground A but refused permission on Ground G and the other grounds.