The Court of Appeal dismissed a challenge to the Secretary of State’s guidance in relation to the licensing of supplementary badger culling to combat bovine TB and Natural England’s decision to issue licences pursuant to that policy.
Section 10(2)(a) of the Protection of Badgers Act 1992 vested a power in the Secretary of State to grant a licence for badger culling for the purposes of preventing the spread of disease. The Secretary of State authorised Natural England to perform that function. In 2017, the Secretary of State published guidance allowing Natural England to grant supplementary badger disease control licences in relation to areas where an intensive cull had already been carried out, with a view to maintaining the disease control benefits achieved by the earlier cull.
As part of the licensing process, Natural England must be satisfied that the licence would not adversely affect species associated with “European sites” located in or around cull areas. This decision may be reached on either of the following bases, as prescribed by regulation 61 of the Habitats Regulations:
There is no risk of “significant effect” on a qualifying species such that no “appropriate assessment” is required (known as a “screening decision”); or
There is a risk of significant effect but, having conducted an appropriate assessment, Natural England is of the view that the project would not adversely affect the integrity of the European Site.
Two supplementary licences were issued in August 2017 and eleven standard licences were issued in September 2017.
The appeal raised two issues:
Whether the guidance was ultra vires s.10(2)(a) of the 1992 Act because there was insufficient objective or scientific evidence that supplementary badger culling would prevent the spread of disease; and
Following the CJEU’s decision in Case 323/17 People Over Wind v Coillte Teoranta, whether Natural England could lawfully take into account agreed restrictions on the proposed location or timing of licensed activity in the context of a screening decision, as opposed to an appropriate assessment.
In 2018 and 2019, the impugned licences were subject to further assessments under the Habitats Regulations and, in those assessments, the restrictions were considered under the heading of an “appropriate assessment”. Natural England re-authorised the licences until their original expiry date.
The Court of Appeal dismissed the appeal.
On the first issue, it was accepted that this was an area of developing scientific knowledge and for this reason, s.10(2)(a) did not specify the nature or quality of evidence necessary to support the grant of a licence under that provision. The Secretary of State had been entitled to rely on the independent and informed scientific judgements of the chief veterinary officer, DEFRA’s chief scientific adviser and experts from other specialist agencies. The Court rejected the Appellant’s argument that the Judge treated the question of whether the guidance was lawful as exclusively turning on the Secretary of State’s subjective view of whether it would prevent the spread of disease [§§65–70].
The Court of Appeal found that the second issue had been overtaken by events, given that new assessments had been made by Natural England and Natural England had not changed its ecological assessment of the risks posed by disturbance from badger culling. Further, there were no exceptional circumstances to warrant the determination of an issue that had become academic [§§73–74].
Hanif Mussa acted for the Secretary of State for the Environment, Food and Rural Affairs.
Paul Luckhurst and Gayatri Sarathy acted for Natural England.
This judgment is available here.