THE COURT

(Lord Minginish, Mr J A Smith)

TUMMEL VALLEY LEISURE LIMITED v SCOTTISH NATURAL HERITAGE

(Application RN SLC/81/13 — Order of 13 November, 2014)

ENVIRONMENT – APPEAL AGAINST REFUSAL OF CONSENT TO CARRYING OUT OPERATIONS WITHIN SITE OF SPECIAL SCIENTIFIC INTEREST AND SPECIAL AREA OF CONSERVATION — ALLEGED FAILURE TO HAVE REGARD TO APPELLANTS’ PROPERTY RIGHTS ENGAGING ECHR A1P1 — SEC 3(1) OF NATURE CONSERVATION (SCOTLAND) ACT 2004 AND REG 2 OF THE CONSERVATION (NATURAL HABITATS, &C.) REGULATIONS 1994 — WHETHER DYNAMIC PROCESSES OF SOIL AND SHINGLE EROSION AND ACCRETION “NATURAL FEATURES” OF LAND IN TERMS OF THESE PROVISIONS AND WHETHER IN FACT PROTECTED IN TERMS OF THE INTIMATION GIVEN WHEN SITE DESIGNATED AS AN SSSI

The appellants owned fishing rights over a stretch of the River Tummel which included an area designated as both a Special Area of Conservation (“SAC”) in terms of the Conservation (Natural Habitats, &c.) Regulations 1994 (“the 1994 Regulations) and a Site of Special Scientific Interest (“SSSI”) in terms of sec 3(6) of the Nature Conservation (Scotland) Act 2004 (“the 2004 Act”). The respondents had given notification of the designation of the area in question as an SSSI including a list ofacts or omissions which appeared to them to be likely to damage the natural feature being protected by the SSSI, all in terms of sec 3 of the 2004 Act. In terms of secs 3(7) and 16(1) of the 2004 Act such acts or omissions could only be carried out with their written consent. Regulation 48(5) of the 1994 Regulations permits the granting of such consent only after the respondents, as the competent authority, have ascertained that the operations in question will not adversely affect the integrity of the site. The appellants applied to the respondents for consent to the carrying out of repair and maintenance work to croys and revetments (as to the meaning of which, see below) within the stretch of the river over which they held fishing rights. Having carried out an assessment of the probable effect of the intended work on the site the respondents refused consent. Their decision letter described the SSSI as a “dynamic and constantly evolving habitat which relies on the constant accretion and erosion of river shingle” and said that works to stabilise the banks or maintain man-made structures such as croys, could interfere with these processes. In appealing against that decision the appellants argued (i) that the appellants had failed to have proper regard to their interests, particularly their property rights in the fishings, engaging Article 1 Protocol 1 (“A1P1”) of the European Convention on Human Rights (“ECHR”), (ii) that the natural features capable of being protected by the SSSI and SAC designations were flora or fauna or geological or geomorphological features and did not include actions and processes, such as the erosion and accretion of shingle, and (iii) that it was doubtful whether the work in respect of which consent was sought amounted to a “plan or project” within the meaning of Regulation 48.

HELD (i) that appellants’ possessory rights for the purposes of ECHR A1P1 extended only to a right to fish from both banks of the river and in the river itself and did not extend to a right to repair and maintain the croys and revetments and that since the right to fish was not compromised in any way by the respondents’ decision there had been no interference with the appellants’ ECHR A1P1 rights; (ii) esto that was wrong, and there had been such interference, it had complied with the principle of lawfulness and had pursued a legitimate aim by reasonably proportionate means (Axa Petioner v Lord Advocate, 2012 SC 122 per Lord Reed at paras [107] – [108] applied), the protection of the environment being of high importance in the jurisprudence of the European Court of Human Rights (Hamer v Belgium, ECHR Case No 21861/03, decision of 27 February 2008; Pindstrup Mosebrug A/S v Denmark ECHR Case No 34943/06), (iii) that the dynamic processes which the respondents had sought, by their decision, to protect were natural features of the site for the purposes of the relevant legislation and, therefore, capable of being protected in terms of SAC and SSSI designations, (iv) that, in contrast with the position in regard to previous notifications of the SSSI, the notification in force at the time of the respondents’ decision made it clear that said dynamic processes were a protected feature of the site, (v) that there was no difficulty in describing the work proposed to be carried out by the appellants as a “plan or project” for the purposes of Regulation 48(1) and (vi) that, it not having been ascertained that the works for which consent had been sought would not adversely affect the integrity of the site, the respondents refusal of consent had been correct, and appeal refused.

The Note appended to the Court’s Order is as follows:-

[1] This is an appeal under section 18(1)(b) of the Nature Conservation (Scotland) Act 2004 (‘the 2004 Act’). The appellants are a limited company owning fishing rights over a stretch of the River Tummel, extending to approximately 1.6 miles to the north of Ballinluig, Perthshire. The appeal is against the refusal of consent by the respondents to certain repair and maintenance works to croys and revetments within that stretch of the river. A ‘croy’, as the term was used in this appeal, is a man-made structure within a river designed to improve fishing by creating artificial pools within which fish can rest and a ‘revetment’ is a retaining wall or facing of hard material, such as stone, built along a river bank.

Factual background

[2] The appellants’ stretch of the Tummel contains an area which is part of the ‘Shingle Islands SSSI’, being a site of special scientific interest within the meaning of sec 3(6) of the 2004 Act and a Special Area of Conservation (‘SAC’) in terms of Regulation 8 of the Conservation (Natural Habitats, &c.) Regulations 1994 ('the 1994 Regulations' or ‘the Regulations’) ). The SSSI was first designated as such in 1955 and ‘re-notified’, in terms of the then current legislation, in 1972 and 1985. The appellants acquired their rights in or around 1985.

[3] Certain operations can only be carried out within an SSSI with the consent of the respondents. By letters dated 8 February (production 34) and 18 May (production 51) 2013 the appellants applied to the respondents for (1) ongoing permission to repair and maintain the revetment and croys along the river bank and (2) permission to carry out remedial work to two croys, and two sections of further bank protection downstream of Tomdachoille Island. The respondents met with representatives of the appellants and of the Scottish Environmental Protection Agency (‘SEPA’) on site and discussed the matter internally. By letter dated 6 June 2013 (production 56) they wrote to the appellants refusing consent. The ground for refusal was that their assessment of the impact of the proposed operations “had not demonstrated that there will be no adverse effect on the integrity of the SAC”. It is against that refusal that this appeal is brought.

Legislative context

[4] In 1992 the European Community, as the European Union was then known, adopted Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (’the Directive’ or ‘the Habitats Directive’). It was given effect to in the United Kingdom by the 1994 Regulations. In terms of said Regulations (as amended), the respondents are the “appropriate nature conservation body” in relation to Scotland (regs 2(1) and 4(1)) and, as such, have a duty to perform their functions so as to secure compliance with the requirements of the Directive (reg 3(1)). Included in these functions are those contained within Part 2 of the 2004 Act. The respondents are also a “competent authority” for the purposes of said Regulations (reg 6(1)).

[5] Regulation 7 provides a procedure for the identification within the United Kingdom of sites as sites of Community significance and reg 8 provides that such sites are to be designated as ‘special areas of conservation’. In terms of reg 10 special areas of conservation are included in the definition of “European site”.

[6] Regulation 48, so far as relevant, provides as follows:-

“(1) A competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which –

(a) is likely to have a significant effect on a European site in Great Britain (either alone or in combination with other plans or projects), and

(b) is not directly connected with or necessary to the management of the site,

shall make an appropriate assessment of the implications for the site in view of that site’s conservation objectives.

(5) In the light of the conclusions of the assessment, and subject to regulation 49, the authority shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the European site …”

[7] Regulation 49(1) provides:-

“If they are satisfied that, there being no alternative solutions, the plan or project must be carried out for imperative reasons of overriding public interest (which, subject to paragraph (2), may be of a social or economic nature), the competent authority may agree … to the plan or project notwithstanding a negative assessment of the implications for the site.”

Regulation 49 goes on to provide some fairly stringent requirements which have to be satisfied before consent under paragraph (1) is granted.

[8] The 2004 Act may be seen as following on from the 1994 Regulations although, of course, the Regulations were pre-dated by domestic UK legislation under which SSSIs were previously dealt with. The following provisions of the 2004 Act are relevant:-

“1 Duty to further the conservation of biodiversity

(1) It is the duty of every public body and office-holder, in exercising any functions, to further the conservation of biodiversity so far as is consistent with the proper exercise of those functions.

(2) In complying with the duty imposed by subsection (1) a body or office-holder must have regard to–

(a) any strategy designated under section 2(1), and

(b) the United Nations Environmental Programme Convention on Biological Diversity of 5 June 1992 as amended from time to time (or any United Nations Convention replacing that Convention).

3 Duty to give notification of sites of special scientific interest

(1) Scottish Natural Heritage (“SNH”) must, where it considers that any land is of special interest by reason of any of its naturalfeatures, notify that fact to the persons mentioned in section 48(2) (“the interested parties”).

(2) References in this Act to a “natural feature” of land are references to any of its flora or fauna or geological or geomorphological features.

(3) In determining for the purposes of subsection (1) whether any land is of special interest SNH must have regard to–

(a) the extent to which giving notification under that subsection in relation to the land would contribute towards the development of a series of sites of special scientific interest in Scotland representative of the diversity and geographic range of–

(i) Scotland's natural features,

(ii) the natural features of Great Britain,

(iii) the natural features of the member States, and

(b) any guidance issued or approved under subsection (1) of section 54 so far as containing information of the description referred to in subsection (2)(a) of that section.

(4) A notification under subsection (1) must be accompanied by–

(a) a document which–

(i) describes the land to which the notification relates,

(ii) specifies the natural feature by reason of which SNH considers the land to be of special interest,

(iii) specifies acts or omissions which appear to SNH to be likely to damage that natural feature, and

(iv) contains such other information as SNH thinks fit, and

(b) a map on which the land is delineated.

(5) The notification, document and map referred to in subsection (4) are in this Act together referred to, in relation to the land in question, as the “SSSI notification”.

(6) An SSSI notification has effect from the date on which it is given; and the land in question is, until the notification ceases to have effect, to be known as a “site of special scientific interest”.

(7) Each act or omission specified in an SSSI notification by virtue of subsection (4)(a)(iii) is, in relation to the site of special scientific interest, in this Act referred to as an “operation requiring consent”.

4 Site management statements

(1) An SSSI notification must be accompanied by a site management statement.

(2) A site management statement is a statement prepared by SNH which–

(a) provides guidance to owners and occupiers of land within a site of special scientific interest as to how the natural feature specified in the SSSI notification should be conserved or enhanced, and

(b) contains such other information in relation to the site of special scientific interest as SNH thinks fit.

(3) That information may include information which promotes understanding and enjoyment by the public of the natural feature specified in the SSSI notification.

(4) SNH may, at any time during which an SSSI notification has effect,–

(a) on the request of any owner or occupier of land within the site of special scientific interest, or

(b) of its own accord,

review and, if it thinks fit, revise the site management statement.

(5) SNH must provide a copy of any statement so revised to every owner and occupier of land within the site of special scientific interest.

8 Variation of SSSI notifications

(1) SNH may, at any time after it has given notice under paragraph 10 of schedule 1 of a decision to confirm an SSSI notification, vary the matters included in the notification by virtue of section 3(4)(a)(i), (ii) and (iv) (whether by adding to them, changing them or removing matter from them) by giving notification to the interested parties.

(2) The area of land to which the SSSI notification relates cannot be varied under this section.

12 Exercise of functions by public bodies etc.

(1) This section applies to the exercise by a public body or office-holder of any function on, or so far as affecting, any land which is or forms part of a site of special scientific interest.

(2) The body or office-holder must –

(a) consult SNH in relation to the exercise of the function.

(b) have regard to any advice given by SNH, and

(c) in exercising the function, take reasonable steps, so far as is consistent with the proper exercise of the functions of the body or office-holder to –

(i) further the conservation and enhancement of the natural feature specified in the SSSI notifications, and

(ii) maintain or enhance the representative nature of any series of sites of special scientific interest to which the SSSI notification contributes.

16 Operations by owners or occupiers of sites of special scientific interest

(1) An owner or occupier of land within a site of special scientific interest must not carry out, or cause or permit to be carried out, an operation requiring consent on the land except–

(a) with the written consent of SNH given on an application under subsection (2), or

(b) where section 17(1) applies.

(2) An application for such consent must specify–

(a) the nature of the operation,

(b) the proposed dates of commencement and completion, and

(c) the land on which it is proposed to carry out the operation.

(3) On an application under subsection (2) SNH may–

(a) give consent to the operation being carried out, whether or not subject to conditions, or

(b) refuse such consent.

18 Appeals in connection with operations requiring consent

(1) An owner or occupier of land within a site of special scientific interest who is aggrieved–

(b) by a decision under subsection (3)(b) of that section to refuse consent,

may appeal to the Scottish Land Court.

(5) The Scottish Land Court must determine an appeal made under subsection (1) on the merits rather than by way of review and may do so by–

(a) affirming the decision appealed against,

(b) where the appeal is against a refusal of consent, directing SNH to give consent,

(f) making such other order as it thinks fit.

(6) The Scottish Land Court may direct SNH–

(a) where it determines an appeal under paragraph (b) or (c) of subsection (5), as to any conditions to which its consent to the carrying out of the operation requiring consent are to be subject”

Authorities referred to

AXA General Insurance Co Ltd v Lord Advocate 2012 SC 122
Bagmoor Wind Ltd v The Scottish Ministers [2012] CSIH 93
Cairngorms Campaign & Ors v Cairngorms National Park Authority 2014 SC 37
Hamer v Belgium ECHR Case No 21861/03 decision of 27 February 2008
Pindstrup Mosebrug A/S V Denmark ECHR Case No 34943/06
R (on the application of Akester) v Dept for Environment [2010] Env LR 33
Tummel Valley Leisure Ltd v Sudjic 2012 SC 246

Evidence

[9] The appeal was heard at Edinburgh on 8 to 10 September. Given that the appeal has to be decided “on the merits rather than by way of review” the hearing took the form of evidence followed by submissions. For the appellant only Mr John David Coutts, one of their directors, gave evidence. For the respondents, evidence was given by Ms Helen Taylor, one of their Operations Officers, Mr Angus Tree, a freshwater adviser employed by the respondents, Mr Gavin Clark, their Operations Manager for Tayside and Grampian, and Dr David Bale, their Area Manager for Tayside and Grampian. No question as to the credibility or reliability of any of the witnesses arises. They spoke mainly to their own involvement in matters, which was wholly uncontroversial, and, where opinion was expressed, the credibility and reliability of these opinions was not challenged by other evidence in the case.

Mr John David Coutts

[10] Mr Coutts, 71, had been a Chartered Surveyor and was a founding director of Tummel Valley Leisure Limited (‘TVL’), the respondents. The company had been created as a vehicle for the acquisition of the fishing rights on this stretch of the Tummel, which it had done in or around 1985.

[11] Mr Coutts identified the relevant stretch of the river and Tomdachoille Island on productions 62 and 63. He spoke to the sites of the croys and revetments in respect of which application had been made. It is unnecessary to set out the detail of that evidence since it has no bearing on the issues in the appeal. He spoke to extensive work having been done by Network Rail to fortify the Inverness to Perth railway line following a major flood in 1989-90. Likewise work had been done by a local farmer, following much more recent flooding, to create a floodbank where none had been before.

[12] Repairs had been carried out to the croys and revetments before. Unfortunately the Tummel produced few suitably sized stones to effect such repairs, so stones had been supplied by a local farmer. The purpose of the exercise was to keep the river in “good trim” from a fishing point of view. Small stones, round and light, could not withstand the pressure of the river in flood. Photographs 27, 28 and 29 (of production 63) showed an area called the Ferry Pool, where the river hit the bank with some velocity, cutting a long way into the bank. Photograph 33 showed exposed shingle left by erosion. The effect of such erosion was that it had “shallowed” the river in these areas so that formerly good fishing pools no longer had the same fish-holding capacity.

[13] The witness spoke to production 8, a letter from the Nature Conservancy Council (‘NCC’, statutory predecessors of the respondents) dated 16 May 1986 to him, enclosing a copy of the “notification papers” relative to the notification of the SSSI under the Wildlife and Countryside Act 1981 on 19 April 1985 and a consent notice enabling the respondents to carry out routine management operations. The plan enclosed with that letter, as part of the notification papers, showed the SSSI to encompass the west bank of the Tummel. He listed a number of pools in the river in that area. He explained the benefit of croys from a fishing point of view; they allowed the fish to rest and fish at rest were easier to catch. Revetments were to protect the river bank from erosion in periods of high water.

[14] The shape of the river was no longer as shown on the map at production 8. Indeed it had changed both before and after that map had been prepared. Production 24, a “geo.View map” lodged by the respondents, showed how the course of the river and the shape of the land had changed since the SSSI had been designated. The red outline superimposed on that plan showed the original SSSI boundaries, the blue lines showed the physical boundaries as they now were. Particularly notable changes which had taken place were a huge incursion of the river into what the witness identified as the “Green Bank area” and its subsequent re-orientation, as it flowed south, from a broadly north/south course to a more westerly one. [There was a certain lack of clarity, at this point and later in the witness’s evidence, as to what the position had been when the croys had been built but, as we understand the whole evidence, it was to the effect that when the croys had been built, in the 1980s, it had been thought that they were not within the SSSI because the limit of the SSSI was thought to be the river bank. However, even by then, the position of the river bank had already been altered by erosion from where it had been when the SSSI had originally been designated and where it is shown on the 1975 OS map which accompanied the SSSI notification (copy attached to production 8). The result was that the croys, although built in the river, were in fact within the SSSI.]

[15] Production 56 showed the locations of the various croys and revetments in respect of which the respondents’ consent had been sought. He thought the Green Bank croy and revetment had been built by 1988, the ones at the bottom of the SSSI later. Mr Coutts described three advantages of these croys and revetments: (i) to improve the fishing, (ii) to give the farmer some protection against flooding, and (iii) to afford a degree of protection to the SSSI, which had been subject to dramatic erosion before that. In the 1980s the SSSI had been administered by the NCC and the appellants and the NCC regarded their interests in this matter as being identical as the exchange of letters at production 8 - 11 showed.

[16] Mr Coutts confirmed that the River Tummel had been dammed for hydro-electric purposes in the 1950s. The result was that its flow was determined by how much water was allowed to pass the dam, except at periods of very high water when it overtopped the dam. That happened perhaps every second year. The flood of 1989-90 had been very severe. It had caused some damage in the area of the SSSI but the croys at the Green Bank had minimised erosion to a certain extent, whereas prior to their installation five or six metres of the Green Bank were being lost to erosion per annum. On the other side of the river, across from the Green Bank, the damage had been so severe that the railway company had had people out round-the-clock, measuring the extent and speed of incursion of the river. A lot of the land adjacent to the railway had simply been washed away, resulting in a large revetment, extending to 600-700 yards in length, having to be built. The land which had been swept away comprised sand and gravel.

[17] One result of this revetment had been to arrest the Tummel’s easterly movement and make it turn more sharply than previously, turning back towards the SSSI, with the further result that part of the SSSI had been washed away.

[18] Whilst the river banks were relatively secure at the moment, Mr Coutts himself had had an accident, falling into the river and having had to be taken to hospital. As well as being used by fishers, the river banks were used by members of the public. If areas of the banks became unstable they would have to be cordoned off and could not be used for fishing. His “nightmare scenario” was someone falling into the river: “who picks up the bill for that?”

[19] Production 26, dated February 1985, being part of the 1985 re-notification of the SSSI, was put to Mr Coutts. He had not previously seen it but confirmed his understanding that the SSSI was, as therein described, a “composite site in 5 parts”. It consisted of a number of shingle islands along the Tummel and down to the Tay. He agreed with the description of the land contained in the section headed “Botanical”. Where shingle had been washed away the areas thus exposed had become consolidated and trees had sprung up. What was washed away by the river was largely shingle and sand. Under reference to production 2 he explained how, in the area in which the river is shown as running broadly north/south, sand and gravel had been taken away from one bank and deposited further down on the other so that this bank was being extended all the time by the action of the river. As well as areas of exposed sand and shingle there were also areas of woodland; of trees and grass. The trees comprised primarily alders.

[20] Production 34 was an email dated 8 February 2013 from the appellants’ Secretary to the respondents requesting “permission to repair and maintain the revetment and croys along the river bank from the fishing hut to the large croy at the end of the Green Bank”. It had been refusal of that permission which had led to this appeal.

[21] Production 40 was the current SSSI citation. It was more extensive than the original. At this point Mr Clarke sought to take the witness through the citation and was met with an objection from Mr Findlay that he was leading. On Mr Findlay giving an assurance that someone from SNH would speak to this production, Mr Clarke moved on.

[22] If the banks became eroded the river would become shallower and the fishing would be compromised. Quite apart from the risk of erosion, there was a risk that the river would change its course radically: for example it might revert to its former channel, which would be disastrous for the fishing because it would be impossible to work rod and line in areas now taken over by vegetation. The most significant results of consent to their proposals being refused were damage to the fishing pools and the risk of departure of the river from its present course.

[23] The witness was then taken through some photographic evidence as to the whereabouts of certain dykes. It is unnecessary to set it out.

[24] Mr Coutts agreed with Mr Clarke that it had never been explained why SNH “consider it preferable to allow the river to erode the land of the SSSI rather than protect it as [the appellants] and the NCC had agreed was best in the 1980s”.

[25] In cross-examination Mr Coutts gave evidence that he was an experienced fisherman who had managed rivers and run innumerable fishing syndicates in various parts of the country. As a keen salmon fisherman he was as committed to conservation as were the authorities. Although a Chartered Surveyor by profession he was not giving evidence in a professional capacity but as an interested party.

[26] Referred to production 25, he confirmed that the red line of the SSSI showed where the river had run when he had first fished it. Production 8 showed the SSSI to be absolutely congruent with the banks of the river. Any croys and revetments were along the line of the blue or yellow lines. There had been no croys or revetments in that area, nor at the southern end, when he had first fished this stretch of water. He agreed that the river system was dynamic, with some areas growing in size and some reducing.

[27] He had had a meeting with the NCC in the 1980s. He had been informed that part of the stretch of the Tummel the appellants had acquired was subject to an SSSI. What the appellants had bought was the right to fish on both banks of the river and in the river. It was only on receipt of the letter of 16 May 1986 that they had become aware of the existence of the SSSI. He did not think he had ever seen production 26, being the SSSI notification as it had been before the March 2013 review. But he was aware that there were certain operations, listed in production 27, which required NCC permission. He agreed that production 41, being a list of operations requiring consent from SNH dated 1 March 2013, was in similar terms to production 27 (dated 18 April 1986) at item 13b where both speak of “Modification of the structure of water courses (e.g. rivers, streams, springs, ditches, drains) including their banks and beds, as by re-alignment, regrading and dredging.” He agreed that there had been no change in the substance of matters requiring consents between these dates.

[28] This was followed by further photographic evidence which it is unnecessary to detail. The evidence identified the sites of various croys. Mr Coutts accepted that in 2012 the appellants had probably carried out work within the SSSI without the permission of SNH or SEPA. He could not say where the works described in production 33, evidently a SEPA document, had been carried out. There had been work going on along the Tummel “since time immemorial”.

[29] He was aware that the SSSI was also an SAC and that the SAC protected the shingle islands. He had not been aware of the conservation objectives listed in productions 29 and 30. He agreed that one of these objectives (listed in production 30) was “Processes supporting the habitat”. The habitat being referred to (again production 30) was “Alder woodland on floodplains” and he agreed that alders had started to grow on a floodplain on the left bank of the river. The test applied before SNH decided whether to grant consent to an operation had not been explained to him “in specific words”. He accepted that consent could not be granted unless SNH had ascertained that the intended operations would not adversely affect the integrity of the site. However his contention was that the appellants’ intended operations would have an extremely beneficial effect on the habitat. As to revetments and croys preventing the river changing its course, that had been the position for some time. He accepted that it was possible that a different test for consent had come to be applied after the site had become an SAC in 2005.

[30] Mr Coutts accepted that production 56, a letter from the respondents to Mr Reid, a director of the appellants, dated 6 June 2013, accurately described the works for which the appellants were seeking consent. He also agreed that the letter went on to inform the appellants of the respondents’ decision to refuse consent, refer to the test they had applied and give reasons for the refusal. However, he found it difficult to accept these reasons when the agreement the appellants had previously had with the NCC had been to the exact opposite effect. He found it difficult to identify when the change had taken place and why. He agreed that the SSSI was dynamic and that the habitat was constantly evolving and changing.

[31] His information was that the letter refusing consent had been followed by meetings on site and discussions, although he had not been party to them. The appellants had never asked for consent to improve the croys and revetments, only maintain them. Overtures to that effect had been rejected. He could not say whether any documents suggesting alternatives had been sent to the respondents since June 2013.

[32] The witness accepted that before any work requiring consent was done an assessment of its effects had to be carried out. He had seen production 55 before. It was such an assessment. Mr Coutts was given time to read the document to refresh his memory. He found the assessment set out on page 4 hard to accept: it was directly against what had been agreed with Dr Smith of the NCC.How, he asked, could we still have the incredible array of plant species present on the site if the works to the riverbank already carried out had diminished it? He confirmed that the point of the revetments and croys on the upstream part of the SSSI was to retain the river bank in its present position. That had been the appellants’ intention and it had been agreed with the NCC, which had had the same conservation objectives as the respondents had now. He agreed that the appellants were attempting to stop erosion and deposition. That was for the reasons he had given. Mr Findlay having put to him that it was entirely consistent with the purposes of the SSSI that parts of it be washed away, the witness responded that it was reasonable to assume that the number of plant species would diminish if the land area of the SSSI was reduced. So the works proposed by the appellants were an advantage rather than a disadvantage. He repeated that the appellants had never sought to improve the croys, only to maintain them in their current state of effectiveness. Although he accepted that the works proposed would halt erosion in some areas of the site he found it hard to accept some of the statements in the assessment, notably those to the effect that the proposed works would have a detrimental effect on salmon, lamprey and woodland.

[33] Mr Findlay explained that he did not propose to take the witness through all of the respondents’ productions unless Mr Clarke considered that necessary. Mr Clarke did not.

[34] Referred again to productions 10 and 11 in re-examination, Mr Coutts understood those to represent consent to the repair of the banks and the creation of revetments and croys. It was necessary to bring stones in for that purpose, hence the consent to the dumping of rock. The work had been carried out to Dr Smith’s satisfaction. Mr Coutts thought that the creation of the big croy was part of the work sanctioned at that time. Asked whether it was a completely new croy, he thought there had been an outcrop of rock left behind by the flood and the work had been simply to reinforce that. Neither the footprint of the croy nor its height had altered since 2012. He agreed that when the croy had been built, in 1988, it had been in the river and that since the boundary of the SSSI had then been the riverbank it must follow that the croy itself had not been within the SSSI. But because the location of the riverbank had changed the croy had come to be within the SSSI. [See the explanation of this evidence given above.]

[35] That the purpose of the SSSI was to preserve the dynamic accretion and deposit processes which formed and eroded the land mass within the SSSI had never been explained to him by Dr Smith, at all events not in the detail contained in Dr Bale’s lengthy letter (production 39). Mr Coutts had understood the purpose of the SSSI to be the protection of flora in the area, of which there was a vast amount. If the qualifying habitat on the SSSI was “alder woodlands on floodplains”, as stated in production 30, the processes which supported that habitat were the protection of land mass and prevention of it being diminished. He did not agree that the processes of erosion and deposition on which the respondents based their refusal of consent were an intrinsic justification for the SSSI.

Ms Helen Taylor

[36] Ms Taylor held an MSc in Environmental Management from Stirling University, gained in 1994, and she was an Operations Officer with the respondents. She had started working for them in 2005.

[37] The Shingle Islands SSSI was within her purview. It was one of several designated sites for which she was responsible across Tayside. The Shingle Islands Site was made up of four distinct areas on the Tummel and Tay. These were subject to both SSSI and SAC designations. SACs were concerned with habitats, as opposed to Special Protection Areas (‘SPAs’), such as Loch Leven, for which she was also responsible, which were about birds. She confirmed that in respect of both SSSIs and SACs SNH produced citations and lists of operations requiring consent (‘OCRs’). Production 40 was the current SSSI designation for the Shingle Islands site and 41 was the relevant list of OCRs. Production 42 was a Site Management Statement designed to give owners and occupiers of the site more information, comprising what the site included, what condition it was in, a record of past and present management and an explanation of the objectives of such management. These had been the documents applicable as at 6 June 2013 and still.

[38] Ms Taylor had had some involvement in the preparation of these documents, particularly in revising the Site Management Statement and the list of OCRs. She may have had a hand in the writing of the citation itself but had not written all of it. Dr David Bale was the respondents’ Area Manager for Tayside and Grampian Area and her boss. Revisal of the OCRs had not added any new ones to the list but had removed some previous ones.

[39] The photographs at production 32 were photographs she had taken on 19 April 2012 when she had visited the site having been made aware of “unconsented” works possibly having been carried out on the SSSI. They showed the Green Bank stretch of the site and the big croy in that area. Having ascertained who was responsible for these works she had arranged a site visit which had also been attended by Nikki McIntyre, who had managed the site before her, Debbie Crichton from SEPA and Mr Reid of the appellants. That visit had been followed by an extended period of investigation and correspondence with SEPA and the appellants. Production 56 contained an accurate summary of the two operations for which consent had been sought. The witness then explained the procedure followed when considering consent applications. Once all the relevant information as to what was proposed had been obtained from the applicants, a decision had to be taken as to whether the proposal would be damaging to the “Notified Feature”. Where the site was also an SAC the rules were very strict and the conservation objectives of the SAC had to be considered.

[40] There were various stages to the foregoing process. The first was to decide whether there was any “connectivity” between the proposed operation and the notified feature. The purpose of that was to screen out things which were going to have no “likely significant effect” on the Feature. Where it was decided that there was a likely significant effect, they then had to consider whether what was being proposed was going to undermine the conservation objectives. If the conclusion was that there would be no adverse effects consent could be granted, but not otherwise. The rules in relation to SSSIs were more flexible than those relating to SACs. There was “less room to manoeuvre” with the latter.

[41] Production 55 was a “Natura Appraisal Proforma”, a form completed when undertaking a habitats assessment of a proposal. (‘Natura 2000’ is the European network of SACs and SPAs provided for by Art 3(1) of the Directive; 1994 Regs, reg 2). She had completed this one and it related to the Shingle Island SAC and to the appellants’ application. It had been checked and counter-signed by Mr Gavin Clark, her supervisor. It had also been checked by Dr Bale. The assessment identified as a conservation priority “Alder woodland on floodplains”. What she and the form described as the “qualifying interest” was the successional habitats that developed on the river shingle. It was the changing matrix which was so particular about this feature. The form identified various “Conservation Objectives for Qualifying Interests” (section 1d) and those included “Processes supporting habitat”. The relevant process here was the dynamic process of erosion and deposition of shingle. Shingle was washed away from one place and deposited in another.

[42] Her assessment had found a likely significant effect (section 3b) of the work proposed on the qualifying interest. The relevant statutory test was identified at section 3c; whether it had been ascertained that the proposal would not adversely affect the integrity of the site for the qualifying interests. She had concluded that that had not been ascertained. In the course of the assessment she had taken advice from Angus Tree, one of the respondents’ freshwater advisers, and Mr Phil Baarda, one of their woodlands advisers. Email communications with them were produced. There had been a lot of discussion but both experts had agreed with her conclusion, as had Dr Bale.

[43] Asked why she considered that the work proposed to the revetments and croys would have an adverse effect on the qualifying interest, Ms Taylor said that the importance of allowing the natural processes to be maintained for the long term was the key thing. What was being asked for, on the other hand, was permission to maintain the riverbanks in a fixed state and it was clear to her that these activities would not allow the desired processes to be maintained in the long term. That had been so clear that she had considered herself to have no option to consent. Asked about the possibility of granting consent subject to conditions, she could not think of any conditions which would have made the proposals acceptable.

[44] In carrying out her Natura Assessment she did not think the fishing interests of the appellants were relevant; “Natura comes first”. The only exception was for over-riding public interests, such as, with reference to this particular location, the safety of the Inverness to Perth railway line. Asked by the court about the safety of individual members of the public using the river bank, the witness replied that it was not in the respondents’ gift to decide what was of over-riding public interest. In terms of the relevant legislation, that was a matter for others.

[45] In cross-examination Ms Taylor confirmed that the river was managed for hydro electricity generation purposes. She could not answer as to whether that meant that it no longer had a natural flow. Questions about that were best answered by Angus Tree. Referred to page 4 of her assessment and her view that bank protection along the Rivers Tay and Tummel had severely diminished the amount of natural transitory habitat found along their banks, she explained that this was a reference to the Shingle Islands Habitat; a reference to the way dynamic shingle moved around, sometimes on one side of the river, sometimes on the other. Shingle comprised not only gravel but larger stones and boulders which were moved when the river was in flood. Boulders and smaller stones were common in the Tummel.

[46] Shown production 8, being the letter from the NCC dated 16 May 1986 and the map which accompanied it, she agreed that the boundary of the SSSI no longer adhered to the bank of the river as shown on that map. SNH recognised that the boundary was inappropriate and had to be re-drawn to capture the dynamic nature of the site. Mr Clarke suggested to her that the reason the SSSI boundaries followed the outline of the land was that no one had been thinking about the dynamic nature of the site. He pointed out that the earlier citation (production 26) said nothing about its dynamic nature. The witness accepted that that was so but the key thing was that the citation talked of “various stages of colonisation” and if dynamism had not been thought important all one would have would be woodland. There would not be the movement of shingle which supported the various stages of colonisation. Mr Clarke put it to her that if that was truly what was desired to be protected the SSSI should have included the whole river. She agreed and reiterated that the respondents were considering revising the boundary. It hadn’t been done simply because she had not had the time to do it.

[47] The witness was then referred to productions 10 and 11, Production 10,a letter from Mr Reid of the appellants to Dr Smith of the NCC dated 1 August 1988, referred to the importance of preventing further erosion of the river bank and production 11, the reply from Dr Smith dated 1 September of that year, enclosed an amended consent notice covering TVL’s dumping of rock adjacent to the site “in order to try and reduce the erosion currently taking place”. (The consent form itself was not produced, evidently having been lost.) She agreed that these references to erosion suggested that the erosion about which the writers were concerned was erosion of the SSSI. To a suggestion that the NCC had been wanting to arrest dynamic processes she gave no direct answer but pointed out that the NCC, like the respondents, had had no locus to grant or withhold consent for operations outside the boundary of the site, that production 11 referred to dumping of rock “adjacent “to the site and that it asked TVL to remove rock which had been dumped within the site. She was not sure who was responsible for the river beyond the boundaries of the SSSI, possibly SEPA or the Tay Valley Fisheries Board.

[48] There then followed questions about how the river had changed its course over the period since the SSSI had been designated. She agreed that if it were to change its course in certain ways again it might be that some of the alder woodland on the floodplains would be washed away but said that the respondents were not bothered about that. Asked what would be gained by such a development whether the respondents were bothered by it or not, she replied that they did not want to stop the habitat moving. What was important was to protect it wherever it was. Although the erosion of certain areas might lead to loss of biodiversity and a time-lag until trees re-established themselves it was very unlikely that the whole area would be swept away at one time. That would require something cataclysmic, such as the bursting of the dam.

[49] Big flood events around 1990 had caused significant changes to the river’s course but she was unable to comment on whether the course of the river had been fairly static for many years before that. Ongoing erosion was not a process that happened a little bit at a time, all the time. It was more in the nature of big events, when more water was in the river and more boulders were on the move.

[50] Mr Clarke asked if there had been any balancing of the relative values of two competing conservation objectives; the return of the river to its natural state, on the one hand, and the maintenance of the river in its present course, with the consequent preservation of current environmental advantages, on the other. Ms Taylor replied that what they had to look at, and look after, were the ‘notified features’ of the site. She did not think other interests were taken into account but Dr Bale would know about that. As to whether there had come a time when there had been statutory pressure to move to an emphasis on natural systems, she explained that there had been evolution of policy at European level, that governments recognised the importance of natural resources and that organisations like SNH consequently had to look at how to facilitate things happening with least impact on these resources.

[51] Asked about the difference, if any, between a man-made croy and a naturally formed pool in which fish could rest, she thought the difference was the permanence of the man-made artefact. Maintenance was concerned with keeping something where it was, with permanence. The river, on the other hand, was what it was because of its nature. That was what made it one of the best salmon rivers in Scotland. She was reluctant to comment on a suggestion that this status might also be due to the banks being managed up and down the river; Angus Tree could best speak to that. But the processes which supported the habitat being protected here were the antithesis of permanence. Permanence of any feature ran counter to the conservation objectives of the site. What TVL had proposed involved maintenance of 250 metres of riverbank. The effect of that would be to inhibit the supporting processes of the habitat along the length of the SSSI.

Angus Tree

[52] Mr Tree was a freshwater adviser with the respondents. His qualifications comprised a BSc (Hons) from Manchester University and an MSc in Catchment Dynamics, including river habitat and species interactions. He had been working for the respondents since 2005.

[53] His job involved advising as to how alterations may affect rivers and habitats. He had visited the Shingle Islands SSSI in May 2013. Application had been made for consent in respect of protection works on croys. The Shingle Island Site was an SAC as well as an SSSI. The qualifying interest was “Alder woodland on floodplains”. The site was a typical, dynamic, high energy river such as frequently seen in Scotland. The fluvial processes and the way things constantly changed were an intrinsic part of that. If that dynamism was brought to an end and the river stabilised the habitats would revert to types seen at other points along the river and would not be so unique. This was a particularly rare habitat within Europe; it was pretty much a perfect example of such a habitat. What was exceptional about it was the fact that it was always in transition, with the series of islands within the site exhibiting different states of colonisation by different types of flora.

[54] Asked what he had considered the likely impact of the proposed work to be, the witness said that the structures to be maintained would have the effect of stalling these transitional processes in their vicinity and possibly causing erosion in other areas. One could not argue that the large croys were contributing to the wellbeing of the site. Shown Ms Taylor’s Natura Appraisal Form, he agreed generally with what was said at pages 5 and 6 although the way it was described was not necessarily how he himself would describe it. But he agreed with its basic tenets.

[55] In cross-examination he was unable to comment on whether there had been an increased recognition of the dynamic element of the site since it had originally been designated in the 1950s. That was not his specialist area.

[56] Asked, under reference to an exchange of emails among himself, Helen Taylor and Phil Baarda at productions 52 to 54, in which the effect of engineered structures is discussed, about the possibly beneficial effects of such structures in making river banks safe, creating platforms for fishing and the possibility that not all such structures would have an effect on erosion and deposition, he said that the river in this area was constantly changing and he could say quite confidently that putting material of the kind proposed into it would have some effect.

[57] The witness agreed that the river might eventually revert to its original channel. That might take the form of the whole river following that channel or the river splitting into more than one channel. He understood that trees along the original channel would make casting difficult for fishermen. Although there was no shortage of gravel and boulders in the Tummel that did not mean that it was not a necessary prerequisite for erosion and deposition continuing that Tomdachoille Island be allowed to erode. What we were talking about was the processes which changed Tomdachoille Island, not the rest of the River Tay system. He could not comment as to whether the elements of dynamic erosion and deposition present in the current citation were absent from the citation which had applied in the 1980s but he was aware that the Framework Directive of 2000 had recognised the contribution of fluidity to river ecology. (We take this to be a reference to European Council Directive 2000/60, establishing a framework for Community action in the field of water policy.) However, that was not to say that these things had not been recognised before that; people had known about the importance of these processes since, he thought, well before this site had been designated. The Framework Directive was simply the first legislation to have specified their importance.

[58] Mr Tree accepted that the Tummel was dammed for hydro electric purposes and that damming caused an interruption of the “conveyor belt system” which carried sediment downstream. The natural rising and falling of water was “dampened” by the fact that the river was dammed. Although he had not travelled the length of the Tummel, he was prepared to accept, on the basis of his knowledge of other Scottish rivers which were heavily fished, that revetments were a common feature. Farming might also be a driver for increased bank protection along the length of the river.

[59] The witness was aware that the outline of the SSSI had originally corresponded to the river banks. He accepted that if what one wanted to protect was the ability of one bank to erode and another to grow one would not limit the SSSI to the banks but would include some of the river. From that point of view, it would be better if the boundary encompassed a larger part of the river; preferably its entire length and a significant distance on either side. Asked about the size of boulders populating the river, he had seen a variety of sediment sizes carried by a variety of flow events. Some would have been larger than skull-sized, some would have been angular and some, from the upper reaches, would have been more rounded. Although the original designation of the SSSI had been before his time, his understanding was that other islands in the river would also have changed their shape from that shown on the 1975 OS map. Asked whether that did not suggest that what was originally being protected was the land and what it contained, Mr Tree felt he could not give a well qualified answer to that but he insisted that understanding of the importance of the dynamic processes which were at work here was not new. He accepted from Mr Clarke, however, that it was odd that the boundaries shown on the OS map had been used to delineate the SSSI if people knew that the islands would change and “morph” as they had. That was a feature of other SSSIs as well, such as the River Feshie, the most dynamic river in the United Kingdom, where features changed almost daily and the protected feature had now wandered well beyond the original site boundaries.

Gavin Michael Clark

[60] Mr Clark was a Member of the Royal Institution of Chartered Surveyors and the respondents’ Operations Manager for Tayside and Grampian, a post he had held since 2011 although he had worked for the respondents since 2006.

[61] He had checked Helen Taylor’s Natura Appraisal Form, production 55. His role had been to ensure that Helen Taylor had had appropriate advice. He had spoken to Angus Tree on the telephone once as part of the checking process. He was satisfied that Helen had received appropriate advice. He thought he and Helen Taylor had co-written the letter signed by Dr Bale, production 56. It contained, on the second page, an accurate statement of the reasons for the decision reached.

Dr David Bale

[62] Dr Bale was the respondents’ Area Manager for Tayside and Grampian. He had a BSc in Botany and Peatland Ecology. He had joined the NCC in 1986 and SNH in 1992. He had been Area Manager for his present area since 2011 but had been Area Manager for Grampian since 2007.

[63] Production 39, a letter dated 1 March 2013 and sent to the appellants’ Mr Jack, had been written by him. It referred to a review which SNH had been asked to carry out by the Scottish Government. It was a review of all SSSIs in Scotland, of which there were hundreds, including over 100 in Tayside and Grampian. The review had led to a revised citation and a revised Site Management Statement for this site. He could not remember any other complaints or concerns about the review from other interests within the SSSI. The revised citation was production 40. The original citations had been very brief and it was now felt that they should explain more and convey the interest being protected properly. No one had sought to appeal the revised citation. Referred to the original citation, the witness did not think amendments made in March 2013 represented a huge change; the amendments were more in the nature of expanding on the description of previously identified interests. The review represented the giving of more information rather than change.

[64] The revised Site Management Statement was production 42. It had been compiled largely by Helen Taylor as Area Operator. He had not been involved in the detailed discussions between Helen Taylor, Angus Tree and Phil Baarda but he had discussed the case as an ongoing case with Helen Taylor. As Area Manager he had to be satisfied with the Statement.

[65] In cross-examination Mr Clarke put it to the witness that work of a similar nature to that for which consent had now been refused had gone ahead with NCC approval sometime after 1988. The witness was uncertain as to what had been consented to at that time. He agreed that part of that lack of clarity had to do with not knowing where the river bank had been in relation to the boundary of the SSSI at that time. He did not agree with a suggestion from Mr Clarke that the NCC had been concerned to reduce erosion of the SSSI at that time. Shown productions 10 and 11, being the exchange of correspondence between Dr Smith and the respondents in August and September 1988, which refers to rock being dumped to prevent further erosion, the problem was that he did not know where the boundary of the SSSI was relative to the work being done. If the work was being done outside the SSSI it would not have required consent, no matter what impact it might have on the SSSI. He was very reluctant to agree that there had been consent to such work within the SSSI. Without knowing what was consented to he found it difficult to agree with an inference that what the NCC had been concerned about had been erosion of the SSSI and had not considered the dynamic erosion and deposition processes as central to the special scientific interest of the site.

[66] He was likewise reluctant to agree that the current explicit reference to dynamic processes represented a change. The early citations had been perfunctory. But there was an implied reference to the dynamic processes in the botanical statement and in the discussion of habitats contained in the original citation. When revising the citation it had been felt important to put what had previously been inferred across more clearly. He resisted the notion that there had been a change of emphasis: what had happened was that things had been made much more explicit. He could accept that in 1988 the respondents had believed their own interests and that of the NCC to be the same but he did not know that such had in fact been the case.

[67] Mr Clarke put it to the witness that the respondents’ perception was that something must have changed so that the emphasis had passed from protection of the land to the notion that what was important was the changing nature of the feature. The witness said that both the land and the changing nature of the site were important: what was on the land was determined by the changes. He agreed, however, that production 29, referring to the Shingle Islands SAC designation dated 17 March 2005, described the qualifying interest as “Alder woodland on floodplains” and that it said nothing about dynamic flux. It was unfortunate, he said, that these SAC designations had been encouraged to use “high level labels”. Unlike SSSIs they did not have citations as such but the dynamic nature of the site was explained, with reference to the SAC, in the Site Management Statement, production 42. It had simply not been spelt out in production 29.

[68] Mr Clarke then referred the witness to production 30, a statement of the Conservation Objectives of the Shingle Islands SAC. It too refers to the priority qualifying habitat as being “Alder woodland on floodplains”. It also lists seven matters which were to be maintained in the long term in the interests of the qualifying habitat. The witness rejected a suggestion that the first three of these – “Extent of the habitat on site”, “Distribution of the habitat within site” and “Structure and function of the habitat” – were inconsistent with allowing erosion. These may seem to state things in absolute terms but this was not a site on which things must stay where they were for ever more. He accepted that there was no reference to dynamic processing underpinning the woodlands but this was a series of high level objectives, conform to what people drafting these documents had been advised to use at the time. They were not site-specific but had to be interpreted in relation to each specific site.

[69] Dr Bale also rejected a suggestion that the fact that the boundaries of the SSSI mirrored the physical boundaries of the site as they were when the site was designated meant that the people designating the site had been concerned with these boundaries as then defined. He explained that these people had required to use an available map. Unfortunately, with dynamic sites, the boundaries could go out of date almost immediately. He accepted that there had been a need, prior to 2013, to spell out that it was not the site as it existed that was being protected but the site as it would develop and change; that was what the Site Management Statement now did. He accepted that it was a consequence of this lack of explanation that people would not know that their interests had been compromised by the existence of the site until they applied for consent to do something and it was refused. Whereas there was scope to consider ownership interests within an SSSI, in an SAC only imperative reasons to do with public safety and health – things relating to public, not private, interest – could be taken into account. When considering applications for consent SNH had to make their decisions on the basis of likely impact on the SAC. As soon as a citation included reference to erosion (as a benefit) anything that reduced erosion must be refused consent.

[70] In re-examination the witness was referred to the Site Management Statement (production 42) and to its mention, on the third page, of the alder woodland in floodplains feature being in “unfavourable condition due to a loss in the extent of the feature caused, inter alia, by unconsented felling on Richard’s Island and habitat loss through the installation of flood banks and improvement of habitats for agriculture” and, on the following page, to damage of 4.5 ha of the SSSI and SAC due to construction of a flood bank. He confirmed that these events had been harmful to the alder woodland in floodplains feature. The final paragraph of that document drew attention to the Directive and the obligations it laid on the government to avoid deterioration of natural habitats in SACs. The United Kingdom government could face infraction proceedings if it failed to do so.

[71] That concluded the oral evidence but Mr Findlay moved to be allowed to lodge a document explaining what “alder woodland on floodplain” meant. This was done under reference to Mr Bale’s evidence as to the use of terms involving a high level of generality. A generic description may be helpful. The document had been produced by the Joint Nature Conservation Committee and had UK wide application. Mr Clarke had no objection and we allowed this document to be lodged as production 64.

Submissions

(i) For the appellants

[72] Mr Clarke provided a written copy of his submissions. It is held by the court. We do not repeat it verbatim here; what follows summarises Mr Clarke’s argument.

[73] We were dealing with competing interests: those of the owners of the right of fishings and those of the holders of a public duty to encourage biodiversity by the identification and maintenance of SSSIs.

[74] The appellants’ case was straightforward. In refusing consent to the proposed operations the respondents had failed to have regard to the appellants’ interests. The result was to compromise the appellants’ property rights both in scale and value. Statutory rights and duties conferred or imposed on one party should not be interpreted as removing the property rights of others. Very clear statutory language was required to justify such interference; Bennion on Statutory Interpretation, 5th ed., pp 52, 846-49, 1071-73.

[75] Article 1 of Protocol 1 (A1P1) of the European Convention on Human Rights (‘ECHR’) was engaged. The proprietary rights of the present appellants and their right to challenge encroachment on them had been recognised in Tummel Valley Leisure Ltd v Sudjic. Reference was made to paras [10] and [11] of Lord Reed’s opinion. Interference with that right in the absence of clear and unambiguous statutory language would not be lawful. On A1P1 generally, reference was made to the speeches of Lord Hope and Lord Reed in AXA Petitioner v Lord Advocate at paras [20], [40]-[41] (Lord Hope) and [107]-[108] and [116]-[119] (Lord Reed). Under A1P1 there were three elements to the right of property. First, everyone was entitled to the peaceful enjoyment of his possessions. Second, no one was to be deprived of his possessions except in the public interest and subject to conditions provided by law. Third, states were entitled to control the use of property in the general interest and subject to considerations of balance between that interest and affected private interests; Lord Reed, supra, at para [107].

[76] In the present case it was conceded by the respondents that a possession existed. The question then was whether there had been interference with that possession such as to amount to a deprivation in terms of the second element enunciated above. And, if there was, the next question was whether it was justified in terms of the third element. In relation to that third element, when one was looking at whether any infringement complied with the principles of lawfulness, any enactment compromising property rights should be construed strictly. The concept of rule of law was of fundamental importance in the A1P1 jurisprudence of the European Court of Human Rights (Lord Reed, supra, para [118]). Within that, the principle of legal certainty was important (Lord Reed ibid). This was relevant to the present case because changes in the citation of the SSSI infringed that principle. These meant that the appellants could not have predicted, when they bought the fishing rights, the ultimate effects on these rights of the SSSI.

[77] Reference was made to Pindstrup Mosebrug A/S v Denmark and Hamer v Belgium as examples of cases in which the Strasbourg court had recognised A1P1 to be engaged in the context of encroachment by reason of environmental considerations but had held the encroachments made to be legitimate.

[78] Mr Clarke then turned to an examination of the provisions of the 2004 Act. Section 3(1) was the crux of the case. It was concerned with land of special interest. It had to be of special interest by reason of its natural features. References to “natural features” in the Act were references to the land’s “flora or fauna or geological or geomorphological features”; subsec (2). Where SNH considered land to be of interest by virtue of such features it had to notify that fact to the interested parties defined in sec 48(2).

[79] Wikipedia defined “geomorphology” as “the scientific study of landforms and the processes that shape them” and added “Geomorphologists seek to understand why landscapes look the way they do, to understand landform history and dynamics and to predict changes through a combination of field observations, physical experiments and numerical modelling”.

[80] The protected feature here was alder woodland on a floodplain or, it may be, on a flooding shingle island. That was the feature which required to be preserved. It comprised land, whether composed of soil or shingle, and the trees growing on that land. That appeared to be how the SSSI notification had previously been understood and what the 1985 notification (production 26) said.

[81] In support of this Mr Clarke invited us to interpret the correspondence at productions 8 to 11, particularly documents 10 and 11, as demonstrating that understanding and, on a balance of probabilities, to hold that the NCC had consented to the building of the croys and revetments. He accepted that use of the word “adjacent” may or may not have been factually accurate in respect of the croys but submitted that it could not have been accurate in respect of the revetments on the banks. He submitted that the phrase “to try to reduce erosion currently taking place” in Dr Smith’s letter to Mr Reid dated 1 September 1988 could only refer to erosion of the SSSI. The respondents were now saying the opposite: that the feature to be protected was the propensity to erode.

[82] The respondents were saying that the existence of alder woodland and species-rich grassland, however important in other contexts, was not important here. The logic of their approach was that the whole habitat within the SSSI might disappear below the waters of the river. That was the antithesis of conservation.

[83] In so far as it had been suggested in the evidence that any lack of clarity as to the importance of the ephemeral nature of the site had been made good by subsequent Site Management Statements, that was not right. Sec 4 of the 2004 Act showed that these Statements were aspirational, not definitive.

[84] There was statutory provision for changes to SSSIs as a result of reviews, but that was not what the respondents were saying had happened here: they were saying that the reviews had not resulted in any change.

[85] If the appellants had to show that the work they intended to do could not have significant effect on the ability of islands in the river to form and reform they could not do it. Mr Clarke described such a requirement as taking us into the territory of ‘chaos theory’, where cause and effect became unpredictable.

[86] Mr Coutts had described his real concerns about the effect on his company’s rights of fishing if they were not able to maintain croys and revetments. Nobody had suggested his fears were misplaced. The respondents simply regarded them as irrelevant because everything was subject to the overriding special scientific interest of the site and since that included its propensity to erode, the result was that there could not be any protective measures.

[87] What the respondents now sought to protect was not a geomorphological feature, as was required in terms of sec 3(2) of the 2004 Act, but a geomorphological action or process. A process could not be a matter of conservation or biodiversity since it merely involved change. A geomorphological feature might be the result of change but could not consist of the mere capacity for change. Thus the geomorphological end result here was alder woodland and rich grassland deserving of conservation. These were features capable of preservation but the process which had created them could not itself be such a feature. To try to conserve a possibility of some result occurring was not conservation under the Act and such a possibility could not, of itself, be a feature.

[88] Mr Clarke then made a brief submission in relation to the site as an SAC. Regulation 2 of the 1994 Regulations defined ‘natural feature’ in relation to land as -

“(a) any of its flora or fauna, or

(b) any natural habitat existing on that land;”

[89] Mr Clarke submitted that this could not bear a wider meaning than “natural feature” in terms of the Act.

[90] The respondents’ approach raised serious questions. What if the White Cliffs of Dover were an SSSI? Would that mean that a house owner was not entitled to take any measures to secure his house against toppling over the cliff due to erosion? Or, closer to the present case, what of a cottage along the river bank? Must owners let their gardens and houses be swept away? Or even the owner of land without any buildings; was he expected to allow it to disappear into the river and be left with no more than a riverbed?

[91] At the close of his submissions we clarified with Mr Clarke whether he was saying, with reference to the extent of the appellants’ possessory rights, that these extended to the right to maintain croys. He said he was unable to go as far as to say that the right to the fishings included the right to construct croys and revetments but in so far as the appellants had sought to take advantage of these structures they were entitled to do that unless challenged by the owner of the land.

(ii) for the respondents –

[92] Mr Findlay invited us to dismiss the appeal. After accepting that the Court had to decide the appeal on the merits and that it had broad powers he took us through the legislative framework. Certain parts of the 2004 Act have already been set out and need not be repeated. He emphasised the need for the decision maker to further the conservation and enhancement of the natural feature in terms of sec 12(2)(c). He then dealt with the Regulations. It had not been suggested that these did not properly transpose the Directive. Regulation 3 required compliance with the Directive and specified Part 2 of the 2004 Act as an enactment to which it applied. Reg 4 provided that SNH were a nature conservation body.

[93] Part II set out how SACs were to be selected. There was no dispute that the works proposed were within an SAC. Reg 47 applied regs 48-50 to all “plans and projects”. There was no suggestion that the works the appellants had wanted to carry out were not a project, but what had been said in the case of R (on the application of Akester) v Department for Environment, Food and Rural Affairs at para [12-15] and [68-82] gave authoritative guidance on the point.

[94] Reg 48(1) required an appropriate assessment of the implications for a site of a plan or project which (a) was likely to have a significant effect on the site and (b) was not directly connected with or necessary to the management of the site. Reg 48(5) provided that such a plan or project could only be agreed to if it had been ascertained that it would not adversely affect the integrity of the site. Regulation 49 contained an exception to that for matters of overriding public interest. It was not suggested that this exception applied here. As to the possible bank collapse justifying an exception, there was no evidence that this was more likely to happen here than on any other natural river bank and in any event if that line were accepted it would deprive the test of any real force. The whole SSSI could be revetted on that basis.

[95] As to what was being protected, under reference to production 56, the respondents’ letter intimating refusal of consent, the respondents had not suggested that it was a process which was being protected. What was being protected was the Shingle Islands themselves or extensive and dynamic shingle areas in various stages of colonisation. In terms of the SAC what was being protected was alder woodland on floodplain. The SAC concentrated on the conservation objectives and one of these was the processes supporting the habitat. The essence of the SAC and the essence of the SSSI were different and had to be considered separately. A “feature” could include a habitat undergoing a process. In terms of the SSSI the feature being protected was the Shingle Islands and change was inherent in them. The change was a feature of them and there was no reason to give the word a narrow interpretation given the importance the European Court of Human Rights and the Directive placed on the integrity of protected features. It was accepted that the purpose of Site Management Statements was not to identify features but sec 4(2) of the 2004 Act provided guidance as to how the natural features were to be conserved and enhanced.

[96] The respondents did not accept that there had been a variation of the SSSI under sec 8 of the 2004 Act but if there had been it had been lawful.

[97] Mr Findlay referred to two Scottish cases under the Regulations; Cairngorms Campaign v Cairngorms National Park Authority (particularly paras [64] and [65]) and Bagmoor Wind v Scottish Ministers. In essence, what these cases showed was that an appeal such as this must be refused unless appellants satisfied the court that there was no risk of adverse impact to the integrity of the site. That meant that the appellants must go beyond demonstrating an error of approach by SNH: they had to persuade the Court that the appeal should be allowed on the merits.

[98] Whilst not disputing the general principles of law, as to, for example, the law of property, described by Mr Clarke, Mr Findlay submitted that the statutory framework he had set out provided the Court with the legislative basis for dealing with this appeal. In terms of that framework there was no scope for weighing the impact on private rights at the reg 48 stage. To have done so would have been an error of law on the part of the respondents. The Court had to bear in mind the precautionary principle embodied in reg 48(5). In terms of the requirements relating to SSSIs and, even more strongly, SACs, the appeal must be rejected. The Appellants had provided no evidence directed at the statutory framework beyond (i) suggesting that their private rights must prevail and (ii) that over 20 years ago a different approach may have been taken.

[99] Whatever had been said in 1988 had no impact on the decision-making process the respondents (and the Court) had to follow. The Court was not concerned with investigations into past rights and wrongs. It had to look at the matter going forward, without regard to what works may have been carried out in the past. At most the material put forward by Mr Coutts might mitigate past actions but it could not provide a justification for future ones.

[100] Whatever may have been the case in the past, the current SSSI citation and Management Plan were clear as to the dynamic nature of the interest. There had been no challenge to them. The Court had to apply them. Their contents were logical and sound. No specific criticism of them had been made. Angus Tree had described how unique the Shingle Islands were, and what a good exemplar of their type they were. It was not accepted that there was any real distinction between those and the 1985 citation for reasons given by both Helen Taylor and David Bale. But in any event the 1985 citation was not current.

[101] It was likewise with the SAC. The conservation objectives included the processes supporting the habitat. The interest was not simply alder woodland but alder woodland on floodplains. The respondents’ witnesses had indicated that this referred, as the words “on floodplains” or “alluvial forests” suggested, to a dynamic habitat. It is clear that maintaining a static defence was the antithesis of the objective. It may be that much of the work undertaken in the past was also at odds with the objective, but that was no justification for permitting future works to take place. The evidence as to what had happened in 1988 was unclear. It may be that some work had been undertaken outside the SSSI. However, that was all irrelevant to the current position.

[102] There was no evidence that the appellants’ proposals posed no risk to the SAC. On the contrary, there was quite compelling evidence of such a risk. It was certainly clear that the proposals would not further the conservation and enhancement of the natural feature and maintain and enhance the representative nature of the sites. It was also clear from the evidence that the respondents had approached their task lawfully, competently and thoroughly. There was no basis for rejecting their conclusion. The appeal should be refused.

(iii) Response by Mr Clarke

[103] In a brief response Mr Clarke made two points.

[104] Firstly he questioned whether what was being proposed by the appellants was a “plan or project”. With reference to the Akester case, if the harbour authority had merely wanted to repair the harbour, rather than introduce larger ferries, would that have been regarded as a “plan or project”?

[105] Secondly, Mr Findlay had relied heavily on the notion of processes supporting the site. But habitat was what is was, not what it may become. The habitat here was a habitat of shingle islands in various stages of colonisation. It was the colonisation which made the site important. That habitat was the feature which was to be protected.

Discussion

Issues of fact

[106] Although we do not think they have a bearing on the result of the appeal, there are two disputed matters of fact in this case which we should resolve before going further. The first is whether the NCC consented to the construction or maintenance of the relevant croys and revetments in or around 1988. The second is whether the revised SSSI notification issued on 1 March 2013 represented a change in the natural feature which was being protected by the SSSI.

[107] So far as the first of these is concerned, the dispute centres on what is to be made of the correspondence between Mr Reid of the appellants and Dr Smith of the NCC comprising productions 10 and 11. Number 10 is a letter from Mr Reid to Dr Smith dated 1 August 1998. It reads as follows:-

“Dear Dr Smith,

I refer to my telephone conversation with you a few days ago and, as requested, enclose a drawing showing the line of access required for our contractor.

The operations proposed are to ensure the integrity of the river bank and to try to prevent, where possible, the further erosion of it. This work, as you will appreciate, can only be done in low water conditions which is fortunate in that it allows the vehicle to travel over uncovered shingle.

Let me say that we are extremely conscious of the need to protect the environment at this location, since the amenity attaching to the fishings, in our view, is most important, thus our aims in this regard coincide with those of your organisation.

I look forward to hearing from you as soon as possible.”

[108] Dr Smith’s reply, dated 1 September 1988 was as follows:-

“Dear Mr Reid,

SHINGLE ISLANDS – SITE OF SPECIAL SCIENTIFIC INTEREST

Further to our recent meeting, I enclose an amended consent notice to cover Tummel Valley Leisure Limited’s dumping of rock adjacent to the above Site, in order to try and reduce the erosion currently taking place. In order to fulfil the requirements of the Wildlife and Countryside Act please would you sign and return the notice …; it will then be countersigned by NCC and returned to you to retain. The notice is not valid until it has been signed by both parties. The cutting and dumping of branches that we discussed, is in fact already covered by your existing notice, now replaced by the enclosed.

As I mentioned when we met I would be grateful if you could arrange the removal of the presently dumped rock from within the SSSI, and also remind Mr P Stewart that your consent for use of vehicles is on the route as on attached and does not cover him entering the island from the south as he has previously been doing.

With best wishes – I hope the fishing improves.”

[109] The drawing referred to by Mr Reid and the amended consent notice enclosed by Dr Smith have both been lost.

[110] On the basis of this correspondence it seems to us likely that the NCC consented to work being done within the site in order to prevent erosion. Work done outwith the SSSI would not have required consent. The operations referred to by Mr Reid were specifically to do with the integrity of the river bank. As Mr Clarke pointed out, the river bank was indisputably part of the SSSI. Despite Dr Smith’s reference to the dumping of rock “adjacent to the above Site” (which would not have required consent) it seems to us that a natural reading of the correspondence leads one to conclude that revetment of the river bank within the SSSI for the purpose of trying to reduce erosion was being consented to by Dr Smith and we so hold. There is no mention of croys and we are not able to conclude that permission was given for them.

[111] So far as the second issue is concerned the relevant evidence comprises the foregoing correspondence, a comparison of the terms of the SSSI notifications before and after 1 March 2013 and the views of the witnesses who were asked about that comparison.

[112] The correspondence just referred to, and the conclusion we have arrived at on the basis of it, supports the notion that the NCC were concerned to protect the physical integrity of the land mass of the Shingle Islands as it then was. That in turn supports the view that what was being protected was that existing landmass and the flora and fauna on it.

[113] So far as a contrast between the notifications before and after 1 March 2013 is concerned, there is not a word about dynamic processes, accretion or erosion, in the earlier notifications. One would not know from reading the notification that dynamic changes and processes of accretion and erosion were features of the site. That, when set against the March 2013 notification, supports the view that a change in what was being protected did take place at that time.

[114] So far as the evidence of the witnesses is concerned, Helen Taylor and Dr Bale suggested that the reference, in the earlier notifications, to the shingle areas being “in various stages of colonisation” implied the existence of dynamic processes. Whilst the ordinary reader, lacking the expertise of the respondents’ witnesses, would not, we think, realise the import of that phrase, it is significant that that is how these witnesses understood it, especially so in relation to the evidence of Dr Bale because his experience went back as far as 1986, when he worked for the NCC. He was therefore well placed to take a view as to what was intended to be protected at that time, albeit he had not dealt with this site in his days at the NCC. Angus Tree also spoke to the importance of the dynamic processes having been known about since well before this site had been designated an SSSI.

[115] The significance of the foregoing evidence is that it suggests that what was intended to be protected included the dynamic processes. This is strongly reinforced by the consideration that the site has in fact been changing constantly since the time of its original notification in 1955 and, presumably, long before. Had the purpose of the designation been to preserve it as it was at that time, or as it was when re-notified in 1972 and 1988, steps would surely have been taken to achieve that purpose and arrest the processes of accretion and erosion. In fact nothing of that kind has happened. Accordingly we are satisfied that the earlier notifications were intended to include the dynamic processes and that their failure to make that clear was, as Dr Bale explained, due to the relatively perfunctory nature of the descriptions then in use, a matter put right by the revised citation of March 2013 and Helen Taylor’s revised Site Management Statement.

[116] Our conclusions on this issue of fact are, therefore, as follows:-

(a) That it has at all times been a feature of this site that it is constantly changing as a result of processes of accretion and erosion.

(b) That it was at all times intended that this should be a protected feature of the site, as one of its natural features making it a site of special scientific interest.

(c) That there was a failure to make this intention explicit in all notifications of the site prior to that of 1 March 2013.

(d) That there has not, therefore, been a change in what was intended to be protected and that what the 1 March 2013 notification and its associated Site Management Statement does is expand on and clarify what is being protected.

(e) That what the consent given by the NCC in 1988 represents is the result of their assessment of the effect the particular proposal which they were considering at that time would have on the SSSI, not evidence that the purpose of the SSSI was to prevent erosion of the landmass within the site.

Issues of law

[117] Before turning to the issues of law requiring to be resolved, we note that even if we are wrong in our conclusion of fact as to whether what was being protected changed in March 2013, and there was in fact a change, it was a change which the respondents were entitled to make by virtue of sec 8 of the 2004 Act.

Legitimate Expectation

[118] Mr Clarke’s submitted that the granting of consent in 1988 gave rise to a legitimate expectation that similar consent would be granted in the future. We do not think that can be the case, given that the appellants knew that the legislation required NCC consent whenever OCRs were proposed. By consenting to particular operations in 1988 NCC could not bind themselves to consent to other operations, even similar ones, in time to come. Each application would require to be decided on its merits. Whether consent was granted would depend on the nature of what was being proposed and all the facts and circumstances as they stood when consent was asked for. We therefore conclude that the granting of consent to work in 1988 did not give rise to a legitimate expectation on the part of the appellants that they could go on maintaining their revetments and croys indefinitely.

A1P1

[119] We deal next with Mr Clarke’s argument based on ECHR A1P1. For the purposes of doing so we respectfully adopt Lord Reed’s analysis of this provision in Axa Petitioner v The Lord Advocate at paragraphs [107] and [108] where his Lordship said this:-

“[107] A1P1 in substance guarantees the right of property. In its judgment in Sporrong & Lonnroth v Sweden (para 61) the European Court of Human Rights analysed A1P1 as comprising three distinct rules. The first is a rule of a general nature, set out in the first sentence of the first paragraph, which enunciates the principle of the peaceful enjoyment of property (‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions’). The second is the rule contained in the second sentence of the first paragraph, which covers deprivation of possessions and subjects it to certain conditions (‘No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law’). The third rule, stated in the second paragraph, is an explicit recognition that states are entitled, among other things, to control the use of property in accordance with the general interest. The Strasbourg Court also observed in its Sporrong & Lonnroth judgment that, before enquiring whether the first general rule has been complied with, it must determine whether the last two are applicable. These observations were repeated by the court in its judgment in James v The UK (para 37) where it added that the three rules are not distinct in the sense of being unconnected: the second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property, and should therefore be construed in the light of the general principle enunciated in the first rule. These statements have been reiterated many times in the subsequent case law of the Court.

[108] Assessment of whether there has been a violation of A1P1 thus involves consideration of whether a ‘possession’ exists, whether there has been an interference with the possession, and, if so, the nature of the interference: whether, in particular, it constitutes a deprivation of the possession falling within the second rule, or a control on use falling within the third rule, or falls within the more general principle enunciated in the first rule. Given that the second and third rules are only particular instances of interference with the right guaranteed by the first rule, however, the importance of classification should not be exaggerated. Although, where an interference is categorised as falling under the second or third rule, the Strasbourg Court will usually consider the question of justification under reference to the language of those specific provisions of A1P1, the test is in substance the same, however the interference has been classified. If an interference has been established, it is then necessary to consider whether it constitutes a violation. It must be shown that the interference complies with the principle of lawfulness and pursues a legitimate aim by means that are reasonably proportionate to the aim sought to be achieved. This final question focuses upon the question whether a fair balance has been struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights (Sporrong & Lonnroth,para 69). In that regard the Strasbourg Court accepts that a margin of appreciation must be left to the national authorities.”

[120] The first question then is whether a possession exists. That the appellants are in possession of the fishings in a way that is capable of engaging article A1P1 is not in doubt. Although A1P1 did not feature in the case of Tummel Valley Leisure Ltd v Sudjic, the reality of the appellants’ rights and the extent to which they fall to be vindicated in law is demonstrated by the decision in that case. In that case the present appellants sought an order against the defender requiring him to remove decking which he had erected adjacent to the Moulinearn Pool, ex adverso the defender’s property. After proof the sheriff held that the decking did not materially interfere with the respondents’ right to fish as it remained possible to catch fish by spinning, although not by fly fishing. That decision was appealed and overturned by the Sheriff Principal. It was further appealed to the Inner House where Lord Reed said this:-

“[10] In the present case, as we have explained, the full beneficial use of the right of fishing includes fly fishing the whole of the Moulinearn Pool. It follows that the respondents are entitled to use the bank of the river for that purpose. Since the erection of the decking has prevented such use, it follows that it is in breach of the respondents’ rights. No question of balancing arises.

[11] Two observations should be added. First, the sheriff’s finding that the erection of the decking has had no effect on the financial value of the respondents’ fishing rights is not material to the issue: the right to prevent an infringement of property rights does not depend on demonstrating pecuniary loss. The finding itself is, as the Sheriff Principal observed, of doubtful validity, being based solely on evidence that the decking occupied only one thousandth part of the river bank along the stretch owned by the respondents. Equally, the fact that the interference affects only one pool is immaterial: one is entitled to object if a stranger occupies a chair on one’s decking, even if one has other chairs to sit on.”

[121] Mr Clarke said that the engagement of A1P1 was being conceded by the respondents. Mr Findlay said that he did not dispute Mr Clarke’s submissions as to the general law of property but he made no submission directly on the ECHR point. It is, therefore, an issue which we must resolve for ourselves.

[122] It is important to be clear as to what the appellants in this case possess. They possess the fishings; that is to say the right to fish from each bank of the river and in the river itself. Mr Clarke conceded that their rights do not extend as far as a right to construct and maintain croys and revetments. Instead he sought to identify a right to construct and maintain these features insofar as allowed to do so by the landowner. That seems to us not to be a right but a privilege allowed by the landowner. At all events it is not a right of ownership or possession. It seems to us that nothing which the appellants possess as a matter of right is being interfered with by anything done by the respondents. The right interfered with in the Sudjic case was directly the right to fish. In the present case the appellants have at all times been able to enjoy that right from both banks of the river and within the river itself. None of the rights possessed by the appellants has been taken from them or restricted. In our opinion, in order to engage A1P1, it is necessary that there has been some infringement of a property right before that provision is engaged: as Lord Reed said in Axa “A1P1 in substance guarantees the right of property” [emphasis added]. Accordingly in our view there has not been an infringement of the appellants’ right to peaceful enjoyment of property and their case under A1P1 fails.

[123] If we are wrong in that view, and there has been an infringement of the appellants’ A1P1 rights, the question which arises is whether the interference complied with the principle of lawfulness and pursued a legitimate aim by means which are reasonably proportionate to the aim sought to be achieved. That aim is the protection of the environment. The high importance given to environmental considerations of this kind by the Strasbourg Court is shown in the cases of Pindstrup Mosebrug A/S v Denmark and Hamer v Belgium, to which Mr Clarke referred.

[124] Pindstrup involved interference in a contract between the applicants and the Danish government for the extraction by the applicants of peat from a certain area for a period of 50 years. The interference was in the form of the passing of a Nature Preservation Act which introduced a system of permits for the extraction of peat and the subsequent refusal of a permit in respect of the peat bog in question. This led to the early termination of the contract. The court held that the Danish authorities had struck a fair balance having regard to the importance of environmental considerations, on the one hand, and the fact that the applicants had not invested in production facilities for the area of bog in question by the time the interference arose and had access to considerable areas of peatland elsewhere in Denmark, on the other.

[125] Hamer involved the building, without planning consent, of a house in woodland, where no such consent could be permitted by Belgian planning law. Despite the house having been in existence for 37 years with the full knowledge of the relevant authorities and various taxes having been paid in respect of it and despite, because of the length of that period, the applicant having acquired a “legitimate expectation” that she could go on using the property, the court held that an order for the demolition of the house and the restoration of the site was not disproportionate.

[126] The second of these cases is particularly instructive. The summary of the Court’s decision produced by Mr Clarke contains the following passage:-

“Concerning the proportionality of the interference, the Court pointed out that the environment had a value, and that economic imperatives and even certain fundamental rights, such as property rights, should not take precedence over environmental considerations, particularly when the state had passed laws on the subject. The public authorities then had a responsibility to take the necessary steps at the proper time to ensure that environmental protection measures they had decided to implement were not rendered ineffectual. Restrictions on property rights were therefore permissible, provided, of course, that a reasonable balance was struck between the individual and collective interests involved.”

[127] The Court held that the order to demolish the house was not disproportionate when balanced against the environmental consideration and that there had been no violation of A1P1.

[128] The balancing act in the present case is between the right of the appellants to enjoy the fishings with the benefits of the croys and revetments being maintained in a good state of repair, on the one hand, and the right of the state to protect the environment in the general interest, on the other. So far as the appellants’ enjoyment of their right is concerned, it was not suggested by Mr Coutts that the fishings would not be worth possessing without the benefits of the croys and revetments; only that they would yield less fish and, therefore, less pleasure to the fishers. So far as the general interest is concerned, however, this site has been assessed as being of European significance in terms of its natural features. It seems to us that the balancing act therefore clearly favours the state, in the person of the respondents. Accordingly, if A1P1 is engaged and there has been infringement of the appellants’ property rights, that infringement has been legitimate and proportionate in terms of the third element of Lord Reed’s analysis.

The natural feature being protected

[129] Mr Clarke’s other argument was that what the respondents were seeking to protect when they refused consent was not a protected feature in terms of the SSSI and SAC designations. The protected feature in each case was “alder on floodplain” whereas what the respondents were trying to protect was a dynamic process which, whilst certainly affecting the protected feature, was not itself capable of constituting a protected feature. Before addressing this argument it is convenient to examine the designations of the SSSI and SAC. We shall consider these separately, as Mr Findlay invited us to do.

SSSI

[130] As has been seen designation and notification of SSSIs is, and was when the respondents made the decision appealed against, governed by Part 2 of 2004 Act. That part of the Act is headed “Conservation and Enhancement of Natural Features”. Section 3(1) provides that where SNH “consider that land is of special interest by reason of its natural features” it must notify certain persons of that fact. So SSSIs are concerned with land which is of special interest by reason of its natural features. Subsection 2 defines ‘natural feature’ as referring to any of the “flora or fauna or geological or geomorphological features” of the land.

[131] Subsection (4) requires notification, in relation to each SSSI, of inter alia “The natural feature by reason of which SNH considers the land to be of special interest”. The earliest notification of this SSSI contained in the productions is that of February 1985 (production 26). It does not in terms state what the natural feature which makes the site of special interest is. Instead it contains the following description of its botanical features:-

“A series of extensive riverine shingle areas in various stages of colonisation from bare shingle to mixed woodland, and including old abandoned river channels. These areas are particularly notable for the large number of plant species present, including plants characteristic of woodland, open shingle habitats, mire, montane cliffs, and unimproved grassland, with a number of uncommon species represented.”

[132] The notification which was current when the respondents made their decision was that produced as a result of the 1 March 2013 review (production 40). That came later than the appellants’ request for consent (8 February 2013 – production 34) but it was the one which applied when the respondents came to make their decision (6 June 2013 – production 56). Unlike earlier notifications it has a heading “Notified Natural Features”. Under the heading is a succinct statement of certain biological features and then a much longer description of the site. The statement of biological features includes “fresh water habitats: river shingle/sand”. The longer description includes the following:-

“The islands and areas of river bank which make up the Shingle Islands SSSI are located to the north and south of Ballinluig on the rivers Tay and Tummel. The site comprises a series of extensive and dynamic river shingle areas in various stages of colonisation from bare shingle and sand to alluvial alder woodland, and includes old abandoned river channels and backwaters and mixed woodland. The site is important as one of the few areas in Perth and Kinross where river action deposits and rearranges shingle and sand, and a wide range of successional vegetation communities develops. These communities are themselves important for a number of rare fly species and their breeding bird community.

The shingle and sand deposits are particularly notable for the large areas of species‑rich grassland, and the largest area of floodplain or alluvial alder woodland in East Perth and Kinross; but habitats vary from bare sand and shingle, to more established neutral grassland with areas of open water transition fens and open water in the backwaters around the islands. Floodplain alder woodland occurs on shingle and other alluvial soils. It usually consists of alder with varying quantities of other trees and shrubs such as ash, grey willow, hairy birch and wych elm.”

[133] All of that is a statement of the natural features which make the land of special interest. It is not distilled to the same degree of particularity as the designations of the site as an SAC, to which we shall come shortly.

[134] Against that background we turn to the reasons given by the respondents for their decision. The following is taken from their decision letter of 6 June 2013 (production 56):-

“Shingle Islands SSSI is a dynamic and constantly evolving habitat which relies on the constant and cyclical accretion and erosion of river shingle. Works to stabilise the banks, or to maintain man‑made structures such as croys, can interfere with these processes and prevent their functioning to maintain the features for which the site is specially designated. This would also be contrary to the conservation objectives for maintaining the international interest of the site as an SAC, which include ensuring that the processes supporting the habitat, and the structure and function of the habitat are maintained in the long term.”

[135] That can be divided into two parts, the first two sentences dealing with the site as an SSSI and the final sentence dealing with the SAC designation. So, in terms of what was being protected under the SSSI designation, it can be described as being the Shingle Islands as a dynamic and constantly evolving habitat relying on the constant and cyclical accretion and erosion of river shingle. That accords with the description of the natural features being protected contained in the March 2013 notification.

SAC
The description of what was being protected by the SAC is much more succinct: “Alder Woodland on Flood Plains” (production 29). That is the habitat being protected under the Regulations. Regulation 48(1) required the respondents to carry out an assessment of the implications for the site of the appellants proposals “in view of the site’s conservation objectives”. Production 30 states what these are. They include “Processes supporting the habitat”.

[136] The SAC-related reason for refusal of consent was, as we have seen, the risk of damage to these processes. Accordingly there is again a correspondence between the reasons for refusal of consent and the description of the features being protected in terms of the relevant designation and the statement of conservation objectives.

[137] Against that background, we return to Mr Clarke’s objection that what the respondents were seeking to protect was not a natural feature of the land within the meaning of sec 3(2).

[138] We observe first of all that what was referred to in the letter of refusal was a “habitat” not a process. The words “dynamic and constantly evolving” are adjectival. In other words, it is not the dynamism and the change that are being preserved but the habitat which they create and go on re-creating. This seems to us to be a fatal flaw in the appellants’ argument. But, if we are wrong in that, and it is the dynamic process itself that is being protected, might that be a “geomorphological” feature of the land? Mr Clarke cited a Wikipedia definition of that word. We have quoted from it above. We note that the definition of “geomorphology” in the Oxford Dictionary is simply “The study of the physical features of the surface of the earth and their relation to its geological structures” but the word may well have come to have a wider meaning. That would be consistent with how the witnesses seemed to understand the scope of sec 3(2). But even the narrower definition of the Oxford Dictionary seems to us apt to cover the study of processes which shape landforms. Furthermore we do not see any difficulty in characterising the processes taking place around the Shingle Islands, spoken to by witnesses, as “features” of the land. To take the view that a feature of the land has to be something physical to do with the land itself, such as the flora it produces, is to take too narrow a view. The inclusion of the word “geomorphological” obliges us to take a wider view. But in any event the shingle and sand which are constantly accrescing to other land, or being eroded from it, are themselves “land”. Accordingly we are satisfied that a process such as we have here can be a natural feature of the land and is, therefore, covered by section 3(2).

[139] The situation under the SAC designation is clearer. Regulation 48(1) directs the respondents, when carrying out an assessment, to have regard to the site’s conservation objectives. These include, as we have seen, the process of supporting the habitat (production 30). The respondents were, therefore, obliged to consider the possible impact of the appellants’ proposals on the dynamic process of accretion and erosion. Accordingly they cannot be faulted for doing so.

[140] Mr Clarke questioned whether the work proposed by the appellants was a “plan or project” for the purposes of reg 48. It was, after all, only maintenance work and he questioned whether Akester would have been decided as it was had it concerned repairs to the harbour rather than the deployment of a new ferry.

[141] Whatever view might have been taken in Akester had the facts been different, we have no hesitation in accepting that, on their ordinary meaning, both ‘plan’ and ‘project’ are habile to cover what the appellants here proposed to do. They planned to repair the croys and revetments. They could be described as having a project to do so. More generally we consider that a purposeful interpretation of environmental legislation is required to reflect the importance attached to it by the European Court of Human Rights as aforesaid. That involves interpreting such provisions widely, so as to take in anything capable of having a detrimental effect on the natural features and conservation objectives being protected.

Validity of the respondents’ conclusions

[142] As to the validity of the respondents’ conclusion that it had not been demonstrated that the appellants’ proposals would have no adverse effect on the integrity of the SAC (the correct test in terms of Regulation 48(5)) there was no contradictory evidence and we have no basis for questioning it in any way. We therefore accept it.

The White Cliffs of Dover

[143] Mr Clarke invited us to consider the wider consequences of the respondents’ view of their role and of the law, under reference to his White Cliffs of Dover and other scenarios. In that regard we would simply point out that the Regulations contain, at reg 49, a provision which allows consent to be given to operations which would otherwise be refused where there are “imperative reasons of overriding public interest” . It is not for us to say, in the context of this appeal, what situations that exception might cover, although the revetment constructed along the Inverness to Perth railway line after the 1989 flood is an example. It might be possible to exercise that exception wherever there is a threat to human habitation. But we are clear that, standing reg 49, the view of the law taken by the respondents in this case does not lead to unacceptable consequences in other situations.

Decision

[144] Determining the appeal on its merits involves deciding whether the decision arrived at was correct. Having considered the evidence and the relevant law we hold that it was.

The appeal has therefore been refused.

Expenses

[145] Following our usual procedure we have allowed 21 days for written motions and submissions on expenses.

For the Appellants: Geoff Clark QC; Blackadders, Solicitors, Dundee

For the Respondents: James Findlay (QC, England & Wales); Harper Macleod, Solicitors, Glasgow