Scott Loveluck & Anor v Natural England

An expert statutory body’s confirmation of a Site of Special Scientific Interest is subject to procedural fairness and judicial review, but the court will not substitute its assessment for the body’s expert evaluation of scientific evidence. The statutory notification and confirmation process, including the opportunity for objections, a public decision-making meeting and judicial review, may provide sufficient safeguards for Convention purposes. Notification and confirmation alone do not constitute interference with peaceful possession of homes or possessions. Where the decision-maker has relevant expertise, a challenge based on the age, adequacy or interpretation of surveys faces a high irrationality threshold. The court may also rely on the body’s statutory nature-conservation purpose and expertise when assessing matters such as climate change, biodiversity and whether land forms part of a compound site.

The claimants sought permission to apply for judicial review of Natural England’s decision to confirm the notification of West Penwith in Cornwall as an SSSI under section 28 of the Wildlife and Countryside Act 1981. The first claimant renewed his application orally after Lane J refused permission and an extension of time on the papers. The challenge alleged maladministration, actual or apparent bias, procedural unfairness and breaches of Articles 6, 8, 13 and 14 of the ECHR and Article 1 of the First Protocol, irrationality, reliance on matters unsupported by evidence, and errors of fact and law. The central questions were whether any ground was arguable and, if necessary, whether time should be extended.

1. Outcome. Permission was refused because none of the seven grounds was arguable. If necessary, the court would also have refused an extension of time because the claim was not brought promptly or within the period required by CPR 54.5(1)(a).
2. Fairness and Convention rights. The section 28 process contained adequate safeguards, including detailed objections, a public meeting, procedural fairness requirements and available judicial review. The Board was entitled to retire privately for legal advice and breaks. The allegations of maladministration, bias and unfair treatment were unsupported or immaterial. Following R (Aggregate Industries UK Ltd) v English Nature, the process was ECHR-compliant. Notification and confirmation did not themselves interfere with peaceful possession of homes or possessions; operational controls were subject to a separate consent regime and appeal, as recognised in R (Fisher) v English Nature.
3. Scientific evaluation. Natural England and the Board were expert bodies. The court’s role was not to re-evaluate disputed scientific material. The fact that some surveys were old or desktop-based, or that further surveys might have been possible, did not make the Board’s assessment irrational. Disagreement with the scientific evidence did not meet the high threshold for irrationality.
4. Statutory purpose and evidence. The Board could use its expertise in considering climate change and biodiversity decline. Potential additional funding for farmers was policy context, not a reason for notification. Including land that supported features found elsewhere in the site, and treating the area as a compound site, were matters for Natural England’s expertise and were consistent with the relevant guidelines. The complaints of factual and legal error amounted to disagreement with evidence the Board was entitled to accept.
5. The parties were directed to seek agreement on a draft order and consequential matters within 14 days. Any challenge to the judgment was to be made to the Court of Appeal under CPR 52.8.

Lane J refused permission and an extension of time on the papers by order dated 11 December 2023. The first claimant renewed the applications before the High Court (Administrative Court), which refused permission and indicated that an extension would also have been refused.