The Royal Society for the Protection of Birds v Secretary of State for Environment Food and Rural Affairs

Under Article 6.3 of the Habitats Directive, a competent authority must first assess whether a plan or project is likely significantly to affect a protected site. It may authorise the plan or project only after ascertaining that it will not adversely affect the integrity of the site. Conservation objectives are relevant to both stages, but the decisive authorisation criterion is the integrity of the site. For a special protection area, that assessment may take account of the effect on qualifying bird populations and their long-term viability. Natural England’s advice on conservation objectives is relevant but not determinative. The Secretary of State may determine the population level that can safely be maintained, provided the conclusion is rational and supported by the evidence.

The claimant challenged decisions by the Secretary of State directing Natural England to consent to the culling and subsequent population control of Lesser Black-backed Gulls and Herring Gulls at the Ribble Estuary, part of the Ribble and Alt Estuaries special protection area. The challenge concerned the interaction between the Wild Birds Directive, the Habitats Directive and the Conservation of Habitats and Species Regulations 2010, particularly the meaning of conservation objectives and the integrity-of-the-site test in Article 6.3 of the Habitats Directive. The claimant also sought a reference to the Court of Justice.

1. Applicable scheme. Article 6.2 of the Habitats Directive, when applied in the context of a special protection area, refers to the objectives of the Habitats Directive. Disturbance is prohibited only where it adversely affects the ability of the species to maintain itself on the site in the long term or contributes to its long-term decline. The relevant approach was explained in Royal Society for the Protection of Birds v Secretary of State for Scotland [2000] SLT 1272.
2. Article 6.3. The provision creates two discrete obligations. The first is a low-threshold assessment of likely significant effects. The second is a prohibition on authorisation unless the authority has ascertained that the plan or project will not adversely affect the integrity of the site. The second obligation is determined by reference to site integrity, although conservation objectives are relevant in assessing the effect on the site. The cull was a plan or project requiring assessment. The approach in Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserij Case C – 172/02 [2004] ECR 1-7405 and Sweetman v An Bord Pleanala Case C – 258/11 [2013] 3 CMLR 16 supported that analysis.
3. Conservation objectives. Natural England’s documents were advisory. Under Regulation 35 of the 2010 Regulations, Natural England had a duty to advise, but no person or authority was expressly charged with setting the objectives. The Secretary of State was therefore entitled to determine them for himself, while taking Natural England’s advice into account.
4. Application. The Secretary of State rationally concluded that the authorised cull would not impair the long-term viability of the Lesser Black-backed Gull on the site, would not cause its long-term decline, and would not adversely affect the integrity of the site. The same conclusion applied to the seabird assemblage. The challenge to the reasoning and the proposed reference to the Court of Justice therefore failed.
5. The claim for judicial review was dismissed.