Failed challenge to SSSI designation
Elisa de Wit, from law firm Nicholson Graham & Jones, analyses recent environmental court rulings concerning businessIn Fisher and others v English Nature , English Nature's designation of Breckland Farmland in Norfolk as a site of special scientific interest (SSSI) under Section 28 of the Wildlife and Countryside Act 1981 was challenged by owners of land within the designated area.
The designation was based on the site's internationally important population of stone-curlew, which is a species listed in Annex 1 of the Birds Directive. The site was also proposed to be designated as a Special Protection Area (SPA), which the claimants supported.
The argument underlying the challenge was that the site could be designated an SPA without the need for it to be a SSSI, which the claimants argued imposed more onerous constraints on the use of the land.
The Court held that once the statutory criteria under Section 28 had been satisfied, English Nature had no discretion to depart from the notification and confirmation of the designation.
Furthermore, it ruled that English Nature's decision was not irrational, outside its jurisdiction or in breach of the Human Rights Act 1998.
It was open to English Nature to conclude that the area was one of special significance at any time because of the significant population of such an important and rare bird species.