The High Court has recently had to grapple with the legal meaning of conservation where the regulatory agency concerned wished to allow the natural forces of erosion to take place.
R on the application of Boggis and Easton Bavents Conservation v Natural England ( EWHC 2954 Administrative Court, High Court 5 December 2008) raises challenging questions concerning conflicts between property rights and contemporary conservation policies; issues that are likely to become more apparent with the increasing impacts of climate change.
The case concerned low cliffs at Easton Bavents in Suffolk which have been subject to continual erosion from the sea. Mr Boggis had lived all his life near the shoreline and, together with local residents, had built a 1,000-metre long sea defence out of local soil and materials to protect properties.
There was some dispute over the operations’ legality. The claimants asserted that they were carried out under waste disposal exemptions granted by the Environment Agency. Natural England argued they should have obtained consent from the local authority as the coast protection authority. Although the claimants had not obtained planning permission for the works, the local authority was sympathetic to what they had done and supported them in court as an interested party.
Natural England’s real concern was over the possible effect of the sea defence on the cliff face’s geological features. A Site of Special Scientific Interest (SSSI) had been declared in 1989, but the cliffs within it had been washed away by the time the sea defence was built.
In 2005, Natural England proposed enlarging the SSSI, which would include not just the cliffs’ existing faces, but also the land up to 225 metres on their landward side. This included Mr Boggis’ property. The area was based on the prediction that over the next 50 years, the sea would naturally erode the cliff face back this far, and it was this continuing exposure that provided the site’s scientific interest.
In this light, erecting or maintaining sea defences was considered likely to damage the nature of the site and would have to be notified to English Nature in advance. In documents justifying notification of the site, officers made it clear they would be unlikely to grant consent for such operations - a point that was to later assume legal significance in the case’s outcome.
The claimants’ core argument was that the justification for establishing the SSSI fell outside English Nature’s legal remit. The site’s scientific interest lay in the exposed parts of the land formations which contained fossils, and in essence Natural England wished to allow continual exposure to take place naturally rather than preserve the existing face. According to a report from officers: "The key management principle for coastal geological sites is to maintain exposure of the geological interest by allowing natural processes to proceed freely. Inappropriate construction of coastal defences can conceal rock exposures and result in the effective loss of the geological interest."
The court noted that the basic statutory provisions required Natural England to designate a site where it considered it was of "special interest by reason of any of its flora, fauna, geological or physiographical features". Natural England (or rather its predecessor English Nature at the time of designation) had general nature conservation functions and it was accepted that the designation powers were granted and were to be used for conservation.
In essence, the claimants argued that in this case Natural England was misconstruing its powers. Far from using its powers for conservation, it was permitting destruction of the exposed face of the cliffs. Through the policy of enforced erosion of the cliffs, it was not protecting the existing exposed cliff face that was of special interest.
Natural England argued that the decision was taken because of the area’s geological features. It was not just the visible cliff face that was of interest, but also the continual geological exposure maintained by erosion. The approach rejected a concept of nature conservation that was confined to the preservation or protection of current features.
Mr Justice Blair accepted that existing statutory definitions of ‘conservation’ did not help in deciding what counted in law as ‘geological conservation’. The parties presented dictionary definitions, as well as extracts from scientific reviews and core text books on geological conservation.
The judge felt at least a "forensic attraction" in the claimants’ argument that a policy of allowing erosion to take its course conserves nothing. But he concluded that this approach was too limited a view of the concept. He accepted that in the context of geological conservation, there was a distinction between ‘integrity’ sites where a protectionist approach could be expected and ‘exposure sites’ where maintenance of the exposure was required.
In his view, conservation is "a dynamic concept that may involve keeping things as they are but does not necessarily do so. It may also involve allowing natural processes to take their course, as in the case of erosion by a river, or by climatic forces, or by the sea, and similar considerations will apply when the area of land in question is of special reason by its flora or fauna."
As to the SSSI’s size, he did not feel Natural England had acted irrationally in choosing a 225-metre inward distance on the basis of a 50-year prediction. Furthermore: "The fact that the fossils are currently unexposed does not mean that the land is not of current interest."
The court concluded that Natural England had acted within its statutory powers. But the claimants also raised a second, unrelated argument concerning the EC habitats Directive, and its procedural requirements.
There was a Special Protection Area (SPA) designated under the Directive and its implementing regulations, situated a little further up the coast. The claimants argued that any prohibition of sea defence works at Easton Bavents would have knock-on effects, giving rise to a significant risk from coastal erosion on a saline lagoon within the SPA.
Under the Directive, any ‘plan or project’ likely to have a significant effect on the SPA must be subject to an appropriate assessment of its implications. No such assessment had taken place before the SSSI’s designation in this case.
The key legal argument was whether designation itself was a ‘plan or project’ within the Directive’s terms. The court accepted that the European Court of Justice had urged a generous interpretation of the concepts in view of the Directive’s conservation objectives, but without clearly defining their meaning.
Mr Justice Blair adopted Natural England’s formulation and held that within the context of the habitats Directive, a project was equivalent to an intervention in the natural surroundings, while a plan was a formal statement of an intended course of future action in respect of the authorisation of such interventions. Plans govern the authority’s decisions and so are justifiably subject to prior assessment.
Natural England argued that the mere designation of an SSSI did not amount to a plan or project within these terms. Designation did not itself prohibit potentially damaging operations, but provided a procedure for their authorisation or rejection. Mr Justice Blair accepted that ordinarily, notification of an SSSI was essentially the statement of Natural England’s opinion of the site’s interest and was neither a plan nor project.
But in this case, the designation’s background papers stated that consent for the claimants’ coastal defence works would be unlikely to be granted. Given this, designation effectively amounted to a prohibition and the judge concluded, "with considerable hesitation, and on the very unusual facts of the case", that notification and confirmation of the SSSI amounted to a statement of an intended course of action, and was a plan within the Directive’s terms. A risk of a significant effect on the SPA could not be excluded and given the lack of assessment, the designation of that part of the SSSI relating to the cliffs and land behind the cliffs was unlawful.
Natural England announced it would appeal this part of the judgment because of concerns over the precedent it might create. Certainly the Court of Appeal might well feel that the statements made at the time of the SSSI’s declaration would not or could not inhibit Natural England from considering notifications of potentially damaging operations afresh.
Natural England could of course start the whole notification and confirmation process again, but include the appropriate assessments. Whatever the legal position, the court urged the parties to come to a compromise over the sea defences.
He noted that earlier in the year, the Secretary of State had overturned Natural England’s refusal to allow a neighbour to maintain a small length of sea defences. The inspector appointed by the Secretary of State felt that refusal of consent would amount to an unnecessary and disproportionate interference with the appellant’s human rights.
Clearly, the judge was aware that should Natural England turn down the present claimants’ request to maintain defences, they too had the right to appeal to the Secretary of State.
The Boggis cases raises issues concerning the exercise of statutory conservation powers and their possible conflicts with property rights which are likely to become more acute as climate change pressures increase. The Royal Commission on Environmental Pollution is currently studying the question of adaptation to climate change, and the scope and adequacy of existing legislative provisions in the light of new challenges is likely to form an important element of the study.
Mr Justice Blair neatly summed up the dilemma in his judgement’s conclusion: "I make it clear that no criticism is intended of Natural England. It has been trying to do its duty to preserve the scientific value of the site at Easton Bavents. But without some form of defence, the claimants’ homes will soon be swept away by the sea, and their very human predicament must be taken account of too."
Richard Macrory is professor of environmental law, University College London