The Royal Society for the Protection of Birds v The Secretary of State for Environment Food And Rural Affairs & Ors

A conservation objective allowing a population to fluctuate naturally is not permission to reduce the population deliberately and maintain it at the bottom of that range. Generic percentage thresholds used to assess favourable condition are proxies for natural fluctuation where the natural range is unknown. They do not provide headroom for planned culling or other anthropogenic deterioration. An appropriate assessment under Article 6(3) of the Habitats Directive must therefore be based on properly construed conservation objectives. A decision founded on the contrary interpretation is unlawful.

The RSPB appealed against Mitting J’s dismissal of its judicial review claim concerning the Secretary of State’s direction to Natural England to consent to culling Lesser Black-Backed Gulls and Herring Gulls at the Ribble Estuary special protection area. The challenge concerned the interpretation of the site’s 2011 and 2012 conservation objectives and the resulting assessment under Article 6 of the Habitats Directive.

The Secretary of State treated a 25% population-loss threshold as permitting a deliberate reduction above 75% of the designation baseline, and directed consent for a further Lesser Black-Backed Gull cull and measures maintaining both species at reduced levels. The central issue was whether that interpretation lawfully supported the conclusion that the proposals would not adversely affect the integrity of the site.

1. Appeal allowed. The Secretary of State’s decision of 29 May 2013 was quashed. The direction authorising further measures to maintain the Herring Gull population at its reduced level was also unlawful, although the prior cull had occurred.
2. The 2011 and 2012 conservation objectives were not enactments. They had to be read in a common-sense way, in context, and according to what they said. The 2012 objective of maintaining qualifying-feature populations, subject to natural change, did not permit deliberate reduction of those populations and their maintenance at a reduced level.
3. The 2011 favourable-condition table and the Common Standards Monitoring Guidance allowed for natural fluctuations and measurement margins. The generic threshold of an unacceptable 25% loss was a proxy for the lower end of a naturally fluctuating range where the natural limits were unknown. It was not a threshold authorising planned culling or other anthropogenic reduction within the protected site. A deliberate ten-year reduction to the bottom of the natural range was inconsistent with maintaining the population in favourable condition.
4. The Secretary of State’s interpretation was fundamental to his Article 6(3) assessment. His consideration of external risks, the wider gull population, a safety margin and monitoring could not cure the error, because those matters were considered on the erroneous premise that remaining above 75% of the baseline would in principle avoid adverse effect on site integrity.
5. The challenge concerning the Herring Gull measures was not academic. The separate challenge to the calculation of the seabird-assemblage baseline failed: the Secretary of State was entitled to exercise planning judgment in selecting a representative baseline, and his reasons were intelligible and not irrational.
6. The court declined to determine wider statutory-scheme arguments because the decision was already unlawful on a narrower ground and those issues had not been fully argued. Any observations on that scheme would have been obiter.

• Court of Appeal (Civil Division): Appeal allowed; the Secretary of State’s decision dated 29 May 2013 was quashed.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Mitting J dismissed the judicial review claim in [2014] EWHC 1645 (Admin).