Boggis & Anor v Natural England & Anor

Notification of a site of special scientific interest under Wildlife and Countryside Act 1981 section 28 is neither a plan nor a project for the purposes of the Habitats Directive. It identifies protected features and subjects potentially harmful operations to additional control. It does not determine whether those operations will be authorised.

Nature conservation does not necessarily require preservation of the status quo. Allowing natural processes to continue may be a proper conservation technique, depending on the responsible body's professional judgment.

An appropriate assessment is required where objective information cannot exclude a risk of significant effects on a protected site's conservation objectives. A claimant alleging an overlooked risk must produce credible evidence of a real, rather than hypothetical, risk.

Natural England's predecessor confirmed the Pakefield to Easton Bavents Site of Special Scientific Interest under section 28 of the Wildlife and Countryside Act 1981. Its boundary extended landward of eroding cliffs and included homes. The listed operations requiring consent included the erection, maintenance and repair of sea defences.

Residents who had constructed an unauthorised sacrificial sea defence challenged the confirmation. Blair J rejected their contention that allowing erosion was inconsistent with conservation, but held that the notification was a plan within Article 6(3) of the Habitats Directive insofar as it affected maintenance of the sea defence. He quashed the confirmation in part: [2008] EWHC 2954 (Admin).

Natural England appealed on the Habitats Directive issue. The residents cross-appealed on the meaning of the protected geological features and conservation. The central questions were whether notification was a plan or project, whether an appropriate assessment was required, and whether allowing natural erosion could conserve the geological interest.

1. The appeal was allowed and the cross-appeal dismissed. The order quashing part of the SSSI confirmation was set aside. Longmore and Mummery LJJ agreed with Sullivan LJ.

2. The protected geological features comprised the Pleistocene fossils and sediments together with their exposure in the cliff face. The exposure was a geological feature; the act or process of exposure was not. Allowing erosion to reveal fresh material could therefore conserve the geological interest.

3. “Conservation” in section 28G(2) of the Wildlife and Countryside Act 1981 is not necessarily synonymous with preservation of the status quo. Allowing natural processes to proceed without artificial interference is a recognised nature-conservation technique. The appropriate method is principally a matter for the professional judgment of the body charged with the statutory duty.

4. A section 28 notification package was neither a project nor a plan under Article 6(3) of the Habitats Directive. It involved no physical intervention in the environment. Nor did it prescribe how a policy or scheme would be implemented or create the powerful presumption associated with a development plan. It identified the site's special interest and imposed a requirement for further authorisation of potentially damaging operations.

   English Nature's management views had no determinative statutory force. In particular, the notification did not predetermine whether sea defences would receive planning permission. That question remained for the planning authority, which had to consider the site's scientific interest, protection of homes and all other material considerations.

5. Although unnecessary to the result, Article 6(3) requires an appropriate assessment where a real risk of significant effects on a site's conservation objectives cannot be excluded on objective information. A later allegation that an unexamined risk existed does not itself establish a breach. A claimant must produce credible evidence of a real rather than hypothetical risk. No evidence showed such a risk to the protected area in this case.

6. Also obiter, the court doubted that the approach to discretionary relief in Berkeley, which concerned public participation under the environmental impact assessment regime, applied directly to the Habitats Directive. Any discretion must be assessed in context. On the unusual facts, the absence of contrary evidence and the unlawful status of the sea defences could have justified refusing to quash even if a breach had occurred.

1. Court of Appeal (Civil Division): By [2009] EWCA Civ 1061, unanimously allowed Natural England's appeal, dismissed the residents' cross-appeal and set aside the order quashing part of the SSSI confirmation.
2. Administrative Court: By [2008] EWHC 2954 (Admin), Blair J rejected the challenge concerning conservation but held that the notification was, insofar as it affected maintenance of the sea defence, a plan under Article 6(3) of the Habitats Directive. He quashed the confirmation in respect of specified areas.