Watchdog wins erosion battle case

High Court judges said Mr Boggis must now apply for planning permission

A High Court ruling that allowed a 78-year-old retired engineer to protect his Suffolk home from falling into the sea has been quashed.

Peter Boggis installed his own defences near his Easton Bavents home, but Natural England wanted the fossil-bearing cliffs to erode naturally.

In 2008 the High Court said Natural England's decision to permit erosion for "scientific reasons" was unlawful.

But High Court judges said Mr Boggis must now apply for planning permission.

'Saved' land

The sea defence work carried out by Mr Boggis and other members of his conservation group was done without planning permission and the Court of Appeal said the only lawful course open to him was to apply for permission and go through the correct planning procedures.

Mr Boggis, whose house is now 269ft (82m) from the cliff edge, claimed his own soft earth sea defences had so far saved more than eight acres of land and four properties "at no cost to the nation".

Natural England declared the area a Site of Special Scientific Interest (SSSI) in 2006, which prevented Mr Boggis from maintaining his sea defence barrier.

I am not unsympathetic to the plight of Mr Boggis and the other residents who can see the cliff face remorselessly approaching the boundaries of their properties Lord Justice Sullivan

But he had argued that Natural England had no legal right to stop him saving his home.

In December 2008 the judge ruled that the intention behind the SSSI was to allow the destruction of Mr Boggis's "soft sea defences" and the rapid erosion of the cliffs behind them.

Mr Justice Blair said this amounted to "a plan or project" which might have an adverse effect on a special protection area (SPA) for birds to the north of Mr Boggis' sea defences.

He ruled an "appropriate assessment" of the risk to the SPA should have been carried out to comply with the EU Habitats Directive. Natural England's failure to do so was contrary to its duties under European law.

Works 'unlawful'

Overruling the High Court, Lord Justice Sullivan, sitting with Lords Justices Mummery and Longmore, said the notification of an SSSI under the 1881 Wildlife and Countryside Act was "most certainly not" a "plan or project" for the purposes of the Habitats Directive.

In any event, a breach of the Directive would not be established merely because, some time after a "plan or project" had been authorised, a third party alleged there was a risk that it would have a significant effect on a site which should have been considered.

The judge added that the court should not be willing to grant Mr Boggis and his neighbours relief which was "in reality intended to facilitate the retention of works that are unlawful".

"I am not unsympathetic to the plight of Mr Boggis and the other residents who can see the cliff face remorselessly approaching the boundaries of their properties," he said.

But he said they were aiming at the wrong target in challenging the SSSI.

The lawful course would be to apply for planning permission and coastal protection consent so that all material considerations, including their human rights and the SSSI, could be taken into account.

Mr Boggis and Easton Bavents Conservation, none of whom were in court, were ordered to pay Natural England's costs and were refused permission to appeal to the Supreme Court.

It is, however, still open to them to petition the Supreme Court.

In a statement Mr Boggis said losing the case was "tragic".

He said the repercussions would affect everyone who lived on the coast and inland and he would "pursue this matter to the Supreme Court or the European Court".

Natural England welcomed the judgement saying that although they sympathised with Mr Boggis' situation, planning permission was "clearly the way forward".

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