Eaton v Natural England & Anor

Criminal liability for the deliberate killing or disturbance of protected species does not automatically arise whenever a lawful activity carries a known risk that an individual bird or bat may be killed or disturbed. The court must assess whether the conduct was deliberate, distinguishing incidental killing arising from an ongoing activity. Liability is a question of fact and degree, including the probability and number of affected animals and the impact on the species.

A private claimant cannot ordinarily obtain an injunction to restrain the commission of criminal offences without showing individual tortious loss. Judicial review must provide meaningful relief against the public authority. Where no serious issue is shown, permission may be refused at the hearing of an interim injunction application.

The claimant sought an interim injunction preventing RWE Npower Renewables Ltd from continuing construction of a ten-turbine windfarm. The application was ancillary to a judicial review claim against Natural England, alleging that it had unlawfully failed to seek an injunction against RWE or require it to obtain a bat licence.

The claimant relied on risks to protected birds and bats under the Wildlife and Countryside Act 1981, the Conservation of Habitats and Species Regulations 2010, the Wild Birds Directive and the Habitats Directive. The court considered the legal character of incidental fatalities, disturbance during construction, the claimant’s standing, the American Cyanamid principles, permission to bring judicial review proceedings and a protective costs order.

1. Disposition. The injunction application and the application for a protective costs order were dismissed. Permission to bring the substantive judicial review claim was refused.
2. The judicial review claim sought no useful substantive relief against Natural England. The proposed injunction was in substance a private-law claim against RWE. Under Gouriet v Union of Post Office Workers [1978] AC 435, a private citizen cannot seek an injunction to prevent criminal offences unless the conduct causes or threatens individual tortious loss. The claimant had shown no such loss. Ardagh Glass v Chester City Council [2009] EWHC 745 (Admin) did not support a direct injunction against an interested party, since it concerned mandatory relief against a council.
3. The operation of a windfarm does not necessarily involve deliberate killing merely because the operator knows that a protected bird or bat might collide with a turbine and die. Article 12(4) of the Habitats Directive recognises incidental capture and killing arising from ongoing activities. Whether conduct becomes criminal depends on fact and degree, including the level of risk and the numbers and species affected. The evidence here showed low or negligible risk.
4. The European Commission guidance treated bat deaths at wind turbines as an example of incidental killing. It did not establish that every ongoing activity involving a risk of one fatality necessarily constituted an offence. In relation to birds, the statutory defence for an incidental result of a lawful operation which could not reasonably have been avoided was also relevant.
5. There was no serious issue to be tried concerning disturbance during construction. The evidence disclosed no harm and a low risk of disturbance. In any event, the balance of convenience overwhelmingly favoured RWE. Construction had already continued for several months, the breeding season was ending, delay would cause substantial unrecoverable losses, and the claimant offered no cross-undertaking.
6. It was appropriate to decide permission finally at the oral hearing because the merits had been fully argued, no further evidence could cure the fundamental defects, and refusing permission avoided duplicated hearings. The ordinary protective-costs principles in R (Corner House) v Trade and Industry Secretary [2005] 1 WLR 2600 applied; the modified approach in Garner v Elmbridge Borough Council [2010] EWCA Civ 1006 did not.