An application for judicial review was dismissed in the case of R. (on the application of Langton) v Secretary of State for Environment, Food and Rural Affairs.
The case considered whether the Secretary of State had been required to have regard “to the purpose of conserving biodiversity” under the Natural Environment and Rural Communities Act 2006 before publishing the policy document Next steps for the strategy for achieving Bovine Tuberculosis Free Status for England: 2018 review – government response.
The claimant was seeking an order quashing the policy document and further relief to stop badger culling, pending review of the policy. The document stated that intensive culling would start to be phased out, but would remain an option where epidemiological assessment indicated that it was needed. No mention of biodiversity was made.
The claimant highlighted that the Godfray Review of the government’s Bovine TB Strategy stated: “reducing badger numbers will have consequences for other species in the local area”. The judge felt that, even if that was the case, the Godfray Review did not suggest that any options for future control of bovine TB should be avoided because of the possibility of damage to biodiversity.
Section 40 of the Natural Environment and Rural Communities Act 2006 outlines that “the public authority must, in exercising its functions, have regard, so far as is consistent with the proper exercise of those functions, to the purpose of conserving biodiversity”. The judge ruled that the document did not engage the defendant’s duty under the act, because the duty had been discharged previously, when the implications of the statutory purpose of conserving biodiversity had been expressly examined; and the document did not affect any change as far as badger culling was concerned, except to suggest that it should be ended in the foreseeable future.
The judge argued that if the duty was engaged, then the Secretary of State had failed to discharge it, and it would be reasonable to assume that, had he had regard to the purpose of conserving biodiversity, he would have provided evidence of that. With or without consideration of the section 40 duty, the judge felt it “highly likely that the outcome would not have been substantially different”, so relief would have been refused under the Senior Courts Act 1981.
The application to quash the policy failed and the case was dismissed.
