The Court of Appeal has recently overturned a decision of the High Court in R (on the application of Boggis and another) v Natural England [2009] EWCA Civ 1061 which had granted judicial review of English Nature’s and Natural England’s (English Nature’s successor body) notifications of an area of retreating cliffs as a site of special scientific interest (SSSI). The case highlights the importance of homeowners applying for the proper consents in the circumstances and clarifi es what needs to be considered by Natural England when notifying of an SSSI.

Nearby homeowners on the Suffolk coast argued that they had been prevented from maintaining a sea defence to protect their homes from sea erosion as a result of the extension of the SSSI. The homeowners had not, however, applied for the necessary planning permission and consent under section 16 of the Coast Protection Act 1949. They brought judicial review proceedings against Natural England’s decision on the SSSI and sought to maintain the sea defence on two grounds:

Ground A: that Natural England had acted outside its powers in notifying the new SSSI.

Ground B: that English Nature had failed to undertake an “appropriate assessment” of the effect of the SSSI notifi cation on a Special Protection Area (SPA) that fell partly within the SSSI, pursuant to Article 6(3) of the Habitats Directive (92/43/EEC).

The High Court rejected Ground A and found that Natural England had adopted a legitimate approach and that notifi cation of the SSSI had been made lawfully. In respect of Ground B, however, the High Court found that the SSSI notifi cation was a “plan” which was likely to have a signifi cant effect on the Special Protection Area. An appropriate assessment of its effect should therefore have been carried out under Article 6(3). Natural England and Boggis appealed.

On Appeal, the Court of Appeal agreed with the High Court’s decision in respect of Ground A but overturned the decision made regarding Ground B, which had granted judicial review. Sullivan LJ found that notifi cation of an SSSI was not a plan under Article 6(3). As such, there was no need to consider whether a signifi cant effect was likely to be had on the SPA which would require an appropriate assessment under Article 6(3) of the Habitats Directive. Notwithstanding this, the Court went on to fi nd that European case law indicated that an appropriate assessment was only necessary where there was a probability or risk that the plan would have signifi cant effects on the SPA.

Whilst “not unsympathetic” to Boggis and the other homeowners who were facing the loss of their homes as a result of sea erosion, the Court emphasised that they should have applied for the proper consents for the sea defences rather than seeking to challenge the SSSI. They were, therefore, “aiming at the wrong target”. In applying for the proper consents the location of the SSSI together with Article 8 of the European Convention on Human Rights (the homeowners’ right to respect for private and family life) would form part of the other material considerations which the local authority should take into account when considering any such applications.