Welsh mushrooms lead to legal battle
A dispute has arisen over a land owner's right to develop a site after an unusually high number of wild mushrooms were found in the area during the environmental impact assessment, making it a candidate for possible SSSI designation.
R ex parte Western Power Distribution Investments Ltd v Countryside Council for Wales
A judicial review case has clarified the relevance of financial considerations and possible constraints on development in designating a piece of land as a site of special scientific interest (SSSI). R ex parte Western Power Distribution Investments Ltd v Countryside Council for Wales concerned disused reservoirs near Cardiff, for which the landowner sought planning permission for a residential development. Pursuant to this he prepared an environmental assessment, which in turn brought the site to the attention of the Countryside Council for Wales (CCW) on account of the possibility that the site contained an unusually high number of a particular grassland fungi called waxcaps.
Further surveys of the site confirmed its national importance under the system used by CCW, and in accordance with s28 of the Wildlife and Countryside Act 1981, the landowner was notified of CCW’s intention to designate the site as a SSSI.
Western Power challenged the decision to notify, although it was considered that the judicial review action was premature, since the statutory period for representations provided for after notification allowed the views of the landowner to be aired. The claim was therefore amended to include the confirmation of designation.
Western Power argued that the decision was flawed, since CCW had failed to properly examine and assess whether there were other potential waxcaps sites that may have been of greater significance than the disused reservoir site.
They also argued that CCW had not properly followed the Joint Nature Conservation Committee (JNCC) guidelines on identifying SSSIs. The guidelines state that as a minimum aim, the statutory body should represent all the habitats and species present by at least one, and preferably the best, example or population.
The developer said that this meant that CCW had to assess different sites in order to identify the best example before they could make a notification. However, the judge felt that the general approach made it clear that it might be desirable to notify more than one site if more than one site met the relevant criteria.
The judge also pointed out that if a better site was found in the future then there was provision to de-notify the reservoir site under statute.
CCW had engaged two experts to assist them in their determination, since a particular problem in surveying waxcaps is that they can only be identified when they produce fruit in the autumn, which they don’t do every year, therefore a number of surveys over a number of years are needed to make an accurate assessment of the number and species of the fungi.
Despite the fact that Western Power’s expert had challenged the methodology used by the CCW experts, the court felt it inappropriate to intervene in this regard and assess the reports, since CCW were better placed to make such an assessment.
For three years, the strategy of CCW in notifying SSSIs had been that financial considerations played some part in the process, since there would be little point in notifying in relation to a site if the site could not be managed properly.
This meant that sites might not be notified if there were no resources available to manage it. It was made clear by the judge that this was unlawful, and that resources could not play a part in the decision to notify or not, reflecting the ECJ’s decisions in relation to the designation of nature conservation sites under EC law.
Western Power argued that it was just as flawed to have a policy that could lead to notification that would frustrate legitimate land development, but the judge stated that it was reasonable to consider notifying a site because it was under threat, as long as the decision to notify was motivated by the value of the site, rather than by the threat facing it.
The case can be accessed at the following link.
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