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

An SSSI may lawfully include land and geological exposures whose maintenance depends on continuing natural processes. Conservation is a dynamic concept. It may require allowing erosion to continue rather than preserving a feature in its present condition. The statutory duty to notify arises where the authority forms the relevant opinion; the extent of the notified area is principally a matter of expert judgment.

However, an SSSI notification and its operations list may constitute a “plan” under Article 6(3) of the Habitats Directive where, on the particular facts, they formally predetermine that an intervention such as maintaining sea defences will not be authorised. An appropriate assessment is then required if a significant effect on a protected site cannot objectively be excluded.

The claimants sought judicial review of English Nature’s notification and confirmation of the Pakefield to Easton Bavents SSSI, insofar as it covered the Easton Bavents cliffs, adjoining land and sea defences. They argued that the designation was ultra vires because it relied on future scientific interest, promoted erosion rather than conservation, and used the statutory power for study. They also argued that the designation breached Article 6(3) of the Habitats Directive by failing to assess its implications for the neighbouring Benacre to Easton Bavents SPA.

The central issues were whether the designation was lawful under the Wildlife and Countryside Act 1981, and whether the notification and operations list amounted to a plan requiring appropriate assessment.

1. Ground A dismissed. An exposed cliff face was plainly capable of being a geological feature of special interest. English Nature had not unlawfully treated the erosion process itself as the geological feature; the geological exposure was maintained by erosion and the reasons for notification showed that the continuing exposure was of interest.
2. The statutory language concerning an “area of land” and special interest was deliberately broad. The 225-metre landward boundary, based on a 50-year prediction of coastal erosion, was not irrational. The land was of current interest because it contained the same fossil-bearing sediments, even though they were not then exposed. Study of those sediments was consistent with the purpose of an SSSI.
3. “Conservation” was a dynamic concept. It could involve preserving existing conditions, but could also involve allowing natural processes, including erosion by the sea, to continue. The notification and confirmation were therefore not ultra vires.
4. Ground G succeeded in part. Ordinarily, an SSSI notification and list of operations requiring consent would neither be a plan nor a project under Article 6(3) of the Habitats Directive. A project includes an intervention in the natural surroundings and landscape. A plan is a formal statement of an intended future course of action concerning authorisation of such interventions.
5. On the particular facts, the officers’ report stated that English Nature was unlikely to consent to the existing sea defences. Confirmation of the notification without altering the relevant prohibition therefore effectively predetermined that maintenance would not be authorised. The notification was, to that extent, a plan.
6. Under Waddenzee, an appropriate assessment was required where a significant effect could not be objectively excluded. The evidence did not exclude a risk to the SPA. The court could not retrospectively dispense with the assessment merely because the result might have been the same, applying Berkeley. English Nature’s Article 6(3) obligation was independent of the legality of the original construction of the sea defences.
7. The notification and confirmation were unlawful only insofar as they applied to the land seaward of the cliffs where the defences stood and to the land behind the cliffs. They remained lawful for the remainder of the SSSI. Further submissions on the appropriate order were adjourned.

The judgment records that permission for Ground A was granted by a deputy High Court judge on 14 September 2007. The Court of Appeal granted permission on 29 February 2008 to argue Ground G. The Administrative Court determined both grounds at first instance.