This morning, Mr Justice Holgate handed down judgment refusing permission on all grounds in a claim challenging the decision of Natural England to issue a licence permitting the felling of trees in Jones Hill Wood, known in the press as ‘Roald Dahl Wood’.
The claimant, Mark Keir, brought an urgent claim alleging various legal errors in Natural England’s issuing the licence. In particular, the claimant relied upon the potential presence of a barbastelle bat roost (a particular rare bat species in the UK).
The claimant argued NE had erred in how it applied the test for a licence, namely that it had to be satisfied the actions authorised would not be detrimental to the maintenance of the species population at a favourable conservation statis in their natural range (regulation 55(9)(b) of the Habitats Regulations 2017).
The license permitted works for the construction of HS2. HS2 said there was an urgency because the licence permitted the felling only until the end of April, prior to the bats’ maternity season.
On Friday 16 April, Mrs Justice Lang made directions for an expedited hearing at the end of May, and provided an injunction requiring HS2 to cease work until then. HS2 sought an urgent variation to this order, which led to a further order setting directions for a hearing on Friday 23 April.
Mr Justice Holgate refused permission on the basis none of the five grounds (four pursued at the oral hearing) were arguable. In his judgment, various useful observations were made about the test under regulation 55(9)(b). He said the test did not require “absolute certainty” but the absence of reasonable scientific doubt (paragraph 37).
More generally, the Court emphasised the well established principle that the claim “involved evaluative judgment and matters of degree, dependent upon expert technical opinion” on which the Court “affords an enhanced margin of appreciation” (paragraph 43). The Claimant had submitted its own expert evidence which disputed various points of judgment, but Holgate J clarified “the judicial review procedure does not enable such disputes to be resolved by the Court” (paragraph 57). A “legitimate dispute between experts…is not a legitimate ground for judicial review” (paragraph 96).
The Court also discharged the injunction order made by Mrs Justice Land on 16 April.
Leon Glenister represented Natural England, instructed by Richard Barlow, Dmitrie Sirovica and Sophie Hoffman of Browne Jacobson, and Richard Broadbent of Natural England.