Keir, R (On the Application Of) v Natural England

For a derogation licence affecting a protected species, the licensing body must be satisfied that the authorised action will not be detrimental to maintaining the species at a favourable conservation status. The precautionary principle requires the absence of reasonable scientific doubt, not absolute certainty. Likelihood and confidence may inform the assessment, but cannot replace that legal standard. The assessment concerns the species and its population in its natural range, rather than individual animals or a single site in isolation. It may take account of mitigation and compensation secured by the licence. Judicial review does not permit the court to resolve legitimate disputes between experts or substitute its own scientific assessment.

The claimant sought permission to challenge Natural England’s decision to grant a derogation licence for HS2 works at Jones Hill Wood. The works included felling 19 trees which might contain bat roosts, including a possible barbastelle maternity roost. The licence imposed mitigation, compensation, inspection and monitoring conditions.

The challenge concerned the favourable conservation status test in regulation 55(9)(b) of the Conservation of Habitats and Species Regulations 2017, alleged departures from Natural England’s guidance, inconsistency with an earlier decision requesting further information, and irrationality. An interim injunction had restrained works under the licence. The central issues were whether the grounds were arguable and, if so, whether the injunction should continue.

1. Permission refused; injunction discharged. The proposed grounds did not have a real prospect of success.
2. Regulation 55(9)(b) required Natural England to be satisfied that it had no reasonable scientific doubt that the licensed actions would not be detrimental to maintaining the relevant species at favourable conservation status in its natural range. Absolute certainty was unnecessary. Likelihood or confidence could be relevant factors, but could not replace the precautionary standard.
3. The assessment concerned the species and its population, viewed through the statutory concepts of conservation status and favourable conservation status. It was not confined to individual bats or the trees at the particular site. The overall effect of the licence could include mitigation and compensation secured by its conditions.
4. Natural England was entitled to make an evaluative scientific judgment on the material as a whole. It could adopt a precautionary worst-case assumption while also considering evidence that the species was unlikely to be present, the quality and extent of surrounding habitat, and the likely significance of the affected resource. Disputed expert opinions did not establish an error of law or irrationality.
5. The licensing documents were to be read fairly and as a whole, without an excessively forensic approach. Natural England had referred to the relevant statutory and policy requirements and had not positively indicated a departure from its policy. Its later decision was not materially inconsistent with the earlier request for further information.
6. For interim relief, the claimant first had to show a real prospect of success. The balance of convenience then required consideration of conservation risks, project delay and the public interest. Continuing the injunction would effectively prevent reliance on the licence and risk substantial HS2 delay and cost, while the evidence did not show that retaining the trees was necessary to maintain favourable conservation status.

The application for permission to apply for judicial review was refused. The injunction made on 16 April 2021, as varied on 23 April 2021, was discharged.