The High Court this week overturned an injunction against tree-felling in Jones Hill Wood, Buckinghamshire, in R (on the application of Keir) v Natural England [2021] EWHC 1059 (Admin).
The proposed construction work required 19 trees to be felled. The bats are ‘European protected species’ under the Conservation of Habitats and Species Regulations 2017.
Ecologist Mark Keir challenged Natural England’s decision to grant a licence, arguing Natural England had erred in law and that the proposed alternatives of bat boxes while allowing the HS2 line to run through the woods left the bats at risk.
Natural England countered that it believed the bat breeding site would be safe and pointed out that barbastelles may use several maternity roosts for their pups, each for a few days at a time.
Mr Justice Holgate noted that barbastelles are extremely rare―the population is estimated to be as low as 5,000.
In his judgment, he considered how the decision-maker must weigh up risk, stating ‘levels of confidence, or likelihood, or risk, may be judged to be acceptable if the decision-maker does not consider that there is a reasonable scientific doubt about whether an action authorised by a licence would be detrimental to the maintenance of the population of a species at a "favourable conservation status in their natural range".
‘On the other hand… an expression of likelihood, such as the balance of probabilities, should not be substituted as a decision-making test for the "absence of reasonable scientific doubt" required by the precautionary principle’.
He said he attached ‘considerable weight’ to the public interest of continuing the HS2 project.
Discharging the injunction, Holgate J said: ‘Even if it were to be arguable that Natural England has made an error of law in one or more of the respects alleged, I am not persuaded that the injunction is necessary to avoid that risk’.
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