Langton, R (On the Application Of) v The Secretary of State for Environment, Food And Rural Affairs & Anor (Rev 1)

When Natural England decides whether to grant badger-control licences affecting an SSSI, it must consider the special features for which the site was notified. Those features are identified principally by interpreting the SSSI citation. The citation must be read by its language, structure and context, rather than by Natural England’s past practice, selection guidelines, or broad management documents. The court may refuse relief where it is highly likely that the alleged omission would not have produced a substantially different outcome. Modern citations will generally identify notified features under “Reasons for Notification”; material appearing only in a general description will usually be descriptive, although older citations require a more evaluative reading. The claim therefore succeeded only in relation to limited sites and declaratory relief was refused.

The claimant pursued further grounds arising from earlier judicial review proceedings concerning Natural England’s grant of eight badger-control licences in 2017. The earlier proceedings had been dismissed, but permission was granted to determine whether Natural England had unlawfully assessed the possible effects of the licences on ecological features within 45 SSSIs.

The claimant alleged that species mentioned in the SSSI citations had been omitted from the licensing assessments. Natural England accepted that some omissions had occurred, but contended that many issues were academic because the licence conditions would have been the same. The central questions were the scope of the statutory duty to safeguard SSSIs, the proper interpretation of SSSI citations, and the application of the no-difference principle.

1. Outcome. The claim achieved limited success. The court refused declaratory relief because Natural England had indicated that it would take any action required by the judgment.
2. No-difference principle. Under section 31(2A) of the Senior Courts Act 1981, relief must be refused where it is highly likely that the alleged omission would not have resulted in a substantially different outcome. The principle also reflected the court’s general reluctance to decide academic questions and the need for proportionate use of judicial resources. It applied to sites where the same licence conditions would have been imposed in any event.
3. Relevant features. Section 28G of the Wildlife and Countryside Act 1981 required Natural England, when exercising its licensing functions, to take reasonable steps to further the conservation and enhancement of the features by reason of which an SSSI was of special scientific interest. Those features were also legally relevant considerations at common law.
4. Interpretation of citations. The notified features were to be identified from the SSSI citation produced through the statutory notification process. Citations were to be interpreted in the ordinary way by reference to their language, structure and context. Modern citations would generally identify notified features under “Reasons for Notification”, whereas material under a general “Description” heading would generally be descriptive. Older citations were less straightforward, and references to national importance or significance were strong, but not conclusive, indications of special features.
5. Limits of extraneous material. Operations Likely to Damage lists and Views about Management documents were generally of little assistance in construing a citation. They served broader statutory or management purposes. The Guidelines for the Selection of Biological SSSIs could not override the statutory and common-law duties. Natural England’s expert status and past practice could not determine the legal meaning of citations, particularly because citations could generate legal consequences for persons other than Natural England.
6. Application. Applying those principles, the court found deficiencies at Severn Ham, Blackmore Vale Commons and Moors, Oakers Wood, and Piddles Wood, although the no-difference principle disposed of the Piddles Wood issue. Other alleged omissions were rejected because the relevant species were descriptive, insufficiently certain, or not special features on the language of the citation. The court also rejected challenges where existing licence conditions made the issue academic.

The judgment states that the claim arose from earlier judicial review proceedings in which challenges to the badger-control policy and 2017 licences had been dismissed: [2018] EWHC 2190 (Admin). Permission was subsequently granted to pursue the adjourned grounds by Whipple J: [2018] EWHC 3828 (Admin). The present claim was determined by the High Court (Administrative Court).