Wildlife: R v Scottish National Heritage, the Secretary of State for Scotland, Highland Council, Highlands & Islands Enterprise and the Cairngorm Chairlift Company Limited, ex parte World Wildlife Fund (WWF) and the RSPB...

R v Scottish National Heritage, the Secretary of State for Scotland, Highland Council, Highlands & Islands Enterprise and the Cairngorm Chairlift Company Limited, ex parte World Wildlife Fund (WWF) and the Royal Society for the Protection of Birds (RSPB) (27 October 1998) Court of Session

An application was brought by WWF and the RSPB for judicial review of decisions relating to the protection of Special Areas of Conservation and Special Protection Areas at Cairngorm, near Aviemore and proposals for construction of a funicular railway. An application for planning permission for the one and a half mile funicular railway was made in 29 August 1994. A long consultation period then ensued with the RSPB and WWF strongly voicing objections to the project. Permission was, however, granted in the spring of 1997. WWF and the RSPB claimed that the railway would adversely affect the environment, threatening a number of species of rare protected birds. In the petition, it was asserted that the Scottish National Heritage had incorrectly drawn boundaries for Special Areas of Conservation and Special Protection Areas, that there was a necessity for an unqualified guarantee that wildlife and habitats would not be harmed which had not been given and that Highland Council and other backers had not consulted properly before granting planning permission. These were considered separately by the judge under the headings "the boundary issue", "the assessment issue" and the "environmental issue". The boundary issue concerned the process of delineation with regard to the boundary of potential sites to be designated as Special Areas of Conservation under Directive 92/43/EEC on the conservation of natural habitats and of wild flora and fauna (the "Habitats Directive") or Special Protection Areas under Directive 79/409/EEC on the conservation of wild birds (the "Birds Directive"). The parties agreed that the Birds Directives and the Habitats Directive are so closely inter-related that they should be interpreted so as to yield mutually consistent results and so the classification of the relevant sites requires substantially the same approach. Counsel for WWF and RSPB submitted that although Scottish Natural Heritage and the Secretary of State had a discretion in the selection of a 'most suitable territory' as a Special Protection Area or a 'site' as a Special Area of Conservation, once selected the site must include all contiguous habitats and/or habitats used by relevant species. Therefore Member States had no discretion in boundary delineation. The judge stated, in rejecting the construction of the Habitats Directive and Birds Directive put forward by Counsel for WWF and RSPB, that in his opinion there is a discretion to be exercised in identifying the boundaries of the site as an integral part of the process of identifying the site itself. Further, delineation of the boundaries is inherently a scientific exercise. It is not part of that exercise that all contiguous or linked qualifying habitats or species populations must be included. In addition, there was no reason to question the use of the boundaries of existing Sites of Special Scientific Interest as an aid to deciding along with other relevant considerations where the boundary of the Special Areas of Conservation and Special Protection Areas should be drawn. The assessment issue concerned the standard of assertainment which must be reached as to the effects on the integrity of the Special Area of Conservation and Special Protection Area (the parties agreed that the site fell to be treated as such) before planning permission was granted (as required by Article 48 of the Habitats Directive). Counsel for WWF and RSPB asserted that there was required an absolute guarantee of a legal certainty that the project will not adversely affect the integrity of the Special Areas of Conservation or Special Protection Area.

The judge rejected this proposition stating that he did not accept that there need be an absolute guarantee that the integrity of the site will not be adversely affected. He considered that there could never be absolute certainty about what will happen in the future and the most that can be expected of a planning authority or the Scottish National Heritage, as the appropriate nature conservation body, is to identify the potential risks and put in place a legally enforceable framework with a view to preventing these risks from materialising. As to the environmental issue, Counsel for WWF and RSPB argued that the public consultation had not been conducted properly as Highland Council had not made the final draft of the agreement under Section 50 of the Town and Country Planning (Scotland) Act 1972 and the draft Visitors Management Plan annexed thereto available for public consultation before the Section 50 agreement was entered into. Therefore, the consequential decision to grant planning permission was unlawful and both the Section 50 agreement and the planning permission should be reduced. In the judge's opinion, the objective of the Directive 85/337/EEC on the assessment of certain private and public projects on the environment and thus the Environment Assessment (Scotland) Regulations 1988 included the provision of appropriate information in a comprehensible form, making the public aware of the environmental implications of a project and giving the public the opportunity to express opinions about it. There was no authority in Directive 85/337/EEC or the 1988 Regulations requiring every one of the consultees' approval of the final draft before the process is complete. The judge considered the consultation in the present case to be exceptional in the number of opportunities afforded to WWF and RSPB to make representations. There had already been sufficient public consultation at an earlier stage on all material provisions of the Section 50 agreement and the draft Visitors Management Plan. The judge therefore rejected Counsel for WWF and RSPB's interpretation of Directive 85/337/EEC and 1988 Regulations and rejected the submission that the planning process has been vitiated by the procedure which was adopted in respect of the final draft of the Section 50 agreement and the Visitors Management Plan.