R (RSPB) v DEFRA and BAE Systems (Operations) LTD & anr [2014] EWHC 1645 (Admin)

Adjoining the left bank of the Ribble Estuary there is an extensive area of mud flats and saltmarsh. It has supported, in recent years, 4,100 breeding pairs of Lesser Black-backed Gull and 500 pairs of Herring Gulls. On the right bank of the Estuary is Warton Aerodrome. Here, British Aeropsace operates the principal UK facility for developing, manufacturing and testing military aircraft. It was with a view to mitigating the risk of aircraft damage and crashes through ingestion of large, thermalling birds that British Aerospace sought a consent for a cull of a limited number of breeding pairs.

In the action for judicial review, the Royal Society for the Protection of Birds challenged the decision of the Secretary of State to direct Natural England to give consent for the culling of 552 pairs of Lesser Black-backed Gull as well as further operations to maintain population levels of Herring Gull at a reduced level following the cull of 500 breeding pairs. The case turned primarily upon the impact of the plan upon the population of Lesser Blackbacked Gulls, which had been notified to the European Commission as a designated feature of the site. It was argued that, Natural England having accepted that there was a stable “baseline” population of 4,100 breeding pairs on site, any human intervention reducing these numbers constituted, by definition, a breach of the Secretary of State’s Directive obligations.

In his judgment of 21 May 2014, Mr Justice Mitting observed that, in so far as Directive 2009/147EC had sought to codify the Wild Birds Directive “in the interests of clarity and rationality”, the European legislator had failed to achieve that aim. By Article 6(3) of the Council Directive 92/43 (“the Habitats Directive”) it was clear, however, that the determinative question was the impact of the plan consented to upon the integrity of the special protection area. This involved an exercise of judgement on the Secretary of State’s part. He had regard to the exponential increase in numbers of breeding pairs of these large gulls since the 1970s. It was self-evident that the habitat of the gulls would not be interfered with, except temporarily. The Secretary of State had plainly been entitled to conclude that the long-term viability of the designated species on this site would not be impaired, nor would the integrity of the site be affected.

The judgment is of interest principally for a number of observations which did not ultimately bear upon the judge’s robust endorsement of the Secretary of State’s assessment. Thus Mr Justice Mitting took it to be settled law that, in assessing the appropriateness of steps taken to avoid deterioration of special protection areas, for the purposes of Article 6(2) of the Habitats Directive, regard had to be had to the objectives of the Habitats Directive rather than the Wild Birds Directive. He thereby confirmed the approach of the First Division of the Inner House of the Court of Session in Royal Society for the Protection of Birds v Secretary of State for Scotland [2000] SLT 1272.

By contrast, the assessment of plans and projects under Article 6(3) of the Habitats Directive presented less difficulty. Project impact was to be assessed, as the wording of Article 6(3) made clear, by reference to the site’s “conservation objectives”. Those objectives were not defined in either Directive, but, at a higher level, were those of ensuring the survival and reproduction of migratory species of birds in their area of distribution: Articles 4(1) and 4(2) of the Wild Birds Directive. He further accepted as material the aim in Article 2(1) of the Habitats Directive: contributing to biodiversity through the conservation of natural habitats and of wild fauna and flora.

Secondly, Mr Justice Mitting addressed the role of Natural England in setting conservation objectives. By Regulation 5(1) of the Conservation of Habitats and Species Regulations 2010, Natural England was the appropriate nature conservation body for England. Its duty in the context of a European marine site was, as regulation 35 made clear, to advise other relevant authorities as to conservation objectives. It was thereafter for the Secretary of State to determine the conservation objectives for the Ribble Estuary site, taking into account Natural England’s views.

The judge rejected, finally, the suggestion by the Royal Society for the Protection of Birds that the Wild Birds Directive should be construed as prohibiting any non-natural intervention, or cull, of a designated species below its present stable population level within a special protection area. The specification of population levels was but a feature of the national application of more general requirements set out in Article 6(3). The judgment repays close reading.