Badger Trust v The Welsh Ministers (includes Costs)

Under section 21(2) of the Animal Health Act 1981, a Minister must assess the statutory conditions by reference to the particular area covered by the proposed order. On the majority view, “substantially reduce” requires more than a merely insignificant or trivial reduction and, read with “eliminate”, a reduction of substantial degree. A 9% net reduction was insufficient, although a greater reduction within a defined cull area might satisfy the threshold. The statutory discretion also requires consideration of relevant consultation responses, including adverse effects on protected wildlife, and a weighing of those effects against expected benefits. Evidence supporting a cull in an Intensive Action Pilot Area did not justify an order covering the whole of Wales. The appeal was allowed and the Order quashed.

The Badger Trust challenged the Welsh Ministers’ decision under the Animal Health Act 1981 to make the Tuberculosis Eradication (Wales) Order 2009, authorising badger culling. Lloyd Jones J refused the application to quash the Order: [2010] EWHC 768 (Admin). The appeal initially concerned the meaning of “substantially reduce” and whether the Minister had to balance disease-control benefits against the killing of badgers. A third issue arose at the hearing: whether an order covering all Wales could be based on evidence and consultation focused on an Intensive Action Pilot Area. The respondents conceded that the Order should be quashed, but sought guidance on the first two grounds.

1. Disposition. The appeal was allowed on the third ground and the Tuberculosis Eradication (Wales) Order 2009 was quashed. The evidence and consultation concerned a proposed Intensive Action Pilot Area, principally in North Pembrokeshire, whereas the Order applied throughout Wales. The Minister therefore lacked a sufficient basis for being satisfied that the statutory conditions were met across the whole area specified in the Order.
2. Area-specific statutory conditions. Section 21(2) of the Animal Health Act 1981 requires the Minister to identify the relevant area and to be satisfied, in relation to that area, both that disease exists among the specified wild species and is transmitted to animals there, and that destruction in that area is necessary to eliminate or substantially reduce disease incidence there. The non-uniform incidence of bovine tuberculosis in Wales prevented the evidence supporting an IAPA from justifying a Wales-wide order.
3. Meaning of “substantially reduce”. Smith LJ, with whom Stanley Burnton LJ agreed, held that the phrase must be read with “eliminate”. It requires a reduction of substantial degree, rather than merely a reduction above the trivial threshold. A 9% net reduction was not substantial. The court rejected the use of a fixed percentage and accepted that the higher reduction expected within a defined cull area might satisfy the statutory threshold. The adverse perturbation effect outside that area was primarily a matter for the discretionary decision. Pill LJ took the contrary view that a real and tangible reduction exceeding the trivial could suffice.
4. Discretion and consultation. The majority held that the word “may”, together with the consultation requirement, implied that the Minister had to consider relevant consultation responses and weigh the expected disease-control benefits against adverse effects on badgers, wildlife and the ecology of the area. Relevant matters could include perturbation outside the cull area, scientific uncertainty and the cumulative or synergistic effect of cattle-control measures. An exact estimate of the number of badgers to be killed was unnecessary, but the adverse effects of killing large numbers of badgers had not been addressed. Pill LJ would have held that section 21 imposed no specific duty to weigh the number of badgers likely to be killed, subject to the possibility of irrationality in a disproportionate case.
5. Costs. Applying the principles in R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192 and R (Buglife) v Thurrock Thames Gateway Development Corporation [2009] Env LR 18, the reciprocal protective costs cap was upheld. The appellants’ recoverable costs were limited to £10,000 below and £10,000 on appeal, net of VAT.

• Court of Appeal (Civil Division), [2010] EWCA Civ 807: appeal allowed and the Tuberculosis Eradication (Wales) Order 2009 quashed. Guidance was given on the two original grounds, and reciprocal costs protection was maintained.
• Queen’s Bench Division Administrative Court, [2010] EWHC 768 (Admin), Lloyd Jones J: application to quash the Order refused.