Court upholds conservation claim

The High Court has ruled in a case concerning the designation of a site of special scientific interest (SSSI) under the Wildlife and Countryside Act 1981.

It has upheld a claim, in part, lodged by residents of the coastal region of Easton Bavents in Suffolk, challenging the notification and subsequent confirmation, by English Nature (now Natural England), of the Easton Bavents part of the Pakefield to Easton Bavents SSSI.

The coastline of this region has been the focus of scientific interest since the mid 19th century due to the fact that fossils are exposed in the cliffs as a consequence of natural erosion by the sea. However, also as a consequence of the natural erosion process, residents of this coastal region are becoming increasingly fearful for the integrity of their homes, especially given that the coastline is eroding at a rate of a few meters every year.

In a bid to stem the erosion process, and to save their properties, residents of Easton Bavents constructed a barrier between the sea and the cliffs, which, being a sacrificial sea defence, must be maintained.

In 2005 English Nature decided to enlarge the existing SSSI to encompass the Easton Bavents area. However, in seeking to preserve the scientific value of the site, by allowing the natural erosion process to take place, English Nature considered that they were unlikely to consent to the sea defence in its current form as they regarded it to be detrimental to the scientific value of the site. This position prevented the local residents from maintaining their sea defences.

In delivering his ruling the judge found that while English Nature could lawfully notify and confirm the SSSI at Easton Bavents for conservation purposes, English Nature's notification and confirmation of the SSSI was unlawful in so far as it applied to the area of the Easton Bavents Cliffs where the sea defences were situated.

In upholding the residents claim the judge held that the notification and confirmation of the SSSI included a statement of an intended course of action, i.e. to allow the natural erosion of the cliffs to take place, that constituted 'a plan' within the meaning of Article 6(3) of the Habitats Directive (92/43/EEC).

Consequently, the notification and confirmation of the SSSI should have been subject to an appropriate assessment with respect to its possible effects on a nearby Special Protection Area (SPA). As this had not taken place, the judge considered that the risk of a significant effect on the SPA's conservation objectives could not be excluded.

The judge also suggested that, pending any appeal, it would be sensible if efforts were made in order to reach a compromise over the sea defences, as without any form of defence the claimants' homes would soon be swept into the sea. Their very human predicament must therefore be taken account of.

The judgement of the High Court is available via the following link:
http://www.bailii.org/ew/cases/EWHC/Admin/2008/2954.html

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