In R (on the application of McMorn) v Natural England [2015] EWHC 3297 (Admin) the High Court quashed the Defendant Licensing Authority's decision to refuse a licence on the grounds that the licensing criteria had been applied inconsistently without rational basis.

1. Key Points

  • When exercising its discretionary powers a public body must give due thought to the purpose of those powers. In particular it must maintain the balance struck in the legislation.
  • A public body must disclose any policy upon which it relies. Once disclosed, it must apply this policy consistently.
  • The Court will apply a very broad definition of "environmental matter" when making a decision on whether a matter falls within the Aarhus Convention and therefore should be subject to costs protection.

2. Background

The Claimant, a gamekeeper, sought a licence to kill a small number of buzzards in order to protect his pheasants. The Claimant had sought five separate licences from the Defendant over a three year period as the buzzards had caused substantial losses, making his pheasant-shooting business unviable. The Defendant had refused all of the licence applications.

The Claimant contended that the decision was unlawful on the grounds of inconsistency and unreasonableness:

  1. The Defendant had inconsistently applied its published policy on the granting of licences. It had relied on an undisclosed policy of more exacting standards for buzzard licences, unlawfully informed by public opinion.
  2. As a result the decision was unreasonable, applying theWednesbury standard.

The Defendant sought to argue that it had not applied its policy inconsistently. The killing of buzzards was a controversial activity that had attracted a great deal of public interest. As this was the first such application it had applied greater scrutiny so as to ensure that it set the correct precedent.

3. The Decision

The Court found in favour of the Claimant and quashed the Defendant's decision to refuse the licence.

The legal framework

The Court was critical of the Defendant's failure to refer back to the law from which its licensing powers arose. The Defendant was wrong to act as though it was exercising a straightforward executive discretion as this was a misunderstanding of the legal underpinnings of its power. The law, comprising an EU directive and a domestic implementing act, allowed the Defendant to derogate from the general principle of bird protection where there was no other satisfactory solution to prevent serious damage to livestock. Therefore the Court noted that:

  • in circumstances where there was no satisfactory alternative to killing the bird the Defendant did not have any discretion to refuse the licence;
  • where the Defendant was in a position to exercise its discretion it should have acknowledged that the derogation was drafted broadly so as to balance wildlife and human interests; and
  • the derogation did not provide degrees of protection according to the species of bird and therefore the Defendant was wrong to apply this consideration in its licensing decision.

Inconsistent application of policy

The Court made it clear that a decision made by a public body is unlawful on the grounds of inconsistency if like cases are treated differently without a rational basis for the different treatment. The Court upheld the Claimant's view that the Defendant's approach to buzzard licences was unlawfully inconsistent in two key respects:

  1. The Defendant applied an undisclosed draft policy that required a higher evidential standard for buzzards than for other species. This was inconsistent with the disclosed policy that all applications would be decided on the basis of the general policy, and therefore gave the Claimant a partial and misleading picture.
  2. The Defendant unlawfully took into account public opinion in setting a higher standard of evidence for buzzard applications. Though the Defendants were justified in taking extra care to examine the applications, public opposition to the killing of buzzards should not have affected the outcome of the decision.

It should be noted that it was inconsistency between the Defendant's approach to buzzards versus other bird species that was found to be unlawful, rather than inconsistency between the assessments of the Claimant's five applications. In relation to the latter the Court stated that a public body is entitled to change its mind or develop its thinking about the same evidence so long as the basis for doing so is not simply arbitrary.

Finally, the Court held that by making the operation of the derogation excessively difficult and by failing to produce a rational justification for the inconsistency the decision was also Wednesbury unreasonable. Although it was the usual Wednesbury standard that would apply, recognising that that standard permitted variations in the intensity of review depending on the nature of the interests affected, the Court considered that an "intense form of review" was required here because the Claimant's livelihood was directly affected without any right of appeal.

Aarhus claim

The case also provided a clarification of the scope of the Aarhus costs rules. The Aarhus Convention protects access to justice in environmental matters, and has been given effect in domestic litigation by ensuring that an unsuccessful Claimant is only liable for fixed costs in any environmental judicial review. The Defendant contended that because the refusal of a licence would cause harm to the environment, any challenge to the refusal of a licence did not fall within the Aarhus Convention. The Court determined that the Aarhus Convention applies to any decision made in respect of powers in national law relating to the environment. There is no requirement to apply a public interest test to determine the Convention's scope; indeed, such a test would have the unwelcome effect of requiring the Court to make a value judgment as to whether a decision would advance, harm or be neutral in its environmental effects.

4. Comment

The case serves as an important reminder to public bodies that they must act within the scope of their statutory powers. In the case of non-departmental public bodies such as the Defendant, it is insufficient to rely on the policy directions of the government department to which it is accountable. Instead, public bodies should give careful thought to the intention and balance of the statute when exercising their discretionary powers.

In addition, the case placed significant emphasis on the Defendant's inconsistent application of its own policy. Public bodies should therefore take the following factors into account when formulating policy:

  • policy should be formulated to take into account the requirements of the legal framework;
  • care should be taken to disclose any factors taken into account in a decision making process that may amount to a policy; and
  • decision makers should apply the disclosed policies consistently, making close reference to them in the eventual decision.