MR JUSTICE MAURICE KAY: This is an application by Greenpeace Limited, the corporate identity of Greenpeace UK, which is part of Greenpeace International. I shall refer to the Applicant as "Greenpeace". It is a well known campaigning body, the prime object of which relates to the protection of the natural environment. Its legal standing to bring proceedings such as the present application is well established.

In these proceedings Greenpeace is seeking permission to apply for judicial review. Initially the application was considered on paper by Jowitt J who, for good reason in view of the scale and potential importance of the case, neither granted nor refused permission but directed that the matter proceed to a substantive hearing at which all matters could be considered, including delay, permission and, if appropriate, the substantive application. That hearing has now taken place before me over four days and I have also been provided with very helpful and lengthy Skeleton Arguments and written submissions by all the parties. Apart from Greenpeace, the parties are the Secretary of State for Trade and Industry and ten oil and gas companies. I shall refer to the former as "the Secretary of State" and the latter as "the Oil Companies". Hitherto, the status of the Oil Companies in these proceedings has been as interested parties rather than as respondents but I shall accede to the application made by Mr. Ouseley QC on their behalf (which was met with neutrality on the part of Greenpeace and the Secretary of State) that they be accorded the status of respondents.

The case is concerned with an area in the North East Atlantic which has become known as the Atlantic Frontier. In broad terms it lies to the North and the West of the Hebrides, Orkney and Shetland. The Secretary of State has the power to grant licences to companies who wish to search and bore for oil in the area. Licensing takes place through a series of "rounds" which commenced some time ago and which it is intended should continue in the years to come. Licences are generally granted in respect of "tranches", each tranche relating to a number of "blocks". A licence is granted for different stages. The first stage involves exploration which is a process of appraisal of the blocks in question. It involves seismic testing of the seabed and, where appropriate, the drilling of exploratory wells. The second stage involves extraction. The licences require the licensee to obtain the consent of the Secretary of State before proceeding from the first stage to the second stage.

On 7 April 1997 the Secretary of State granted licences in the Seventeenth Round. Greenpeace applied for leave to move for judicial review of that decision but were refused leave by Laws J. on 14 October 1997 by reason of delay. (Regina v. Secretary of State for Trade and Industry, ex parte Greenpeace [1998] Env LR 415). I shall adopt the language of counsel and refer to that case as Greenpeace 1. In December 1998 the Secretary of State granted licences in the Eighteenth Round and a few other licences have been granted "out of round", without further challenge by Greenpeace.

The present case is concerned with the Nineteenth Round. On 30 July 1997 the Secretary of State publicised outline plans for "future oil and gas exploration opportunities around the United kingdom in a five year programme of offshore licensing rounds held under new environmental regulations". The plans referred to six rounds, from the Eighteenth to the Twenty-third, and indicated the general areas but not the precise locations of the blocks. As far as the Nineteenth Round is concerned the Secretary of State has not yet granted licences and the precise locations remain uncertain. Greenpeace issued the present application on 1 April 1999.

The basis of the present application

In a nutshell Greenpeace’s challenge may be described as follows. The areas to be licensed in the Nineteenth Round lie outside the twelve mile limit of United Kingdom Territorial waters but within the area of the United Kingdom Continental Shelf (UKCS). Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (the Habitats Directive) which was issued on 21 May 1992 obliged Member States to legislate. The domestic legislation which ensued, in particular the Conservation (National Habitats etc.) Regulations 1994, is expressly stated to apply only up to the twelve mile limit. The Secretary of State contends that the Regulations are a proper implementation of the Habitats Directive which did not impose obligations beyond the twelve mile limit. Accordingly, he does not consider the Regulations or the Habitats Directive in the course of his licensing function, although he does have due regard to various other environmental obligations. Greenpeace contends that the Secretary of State has fallen into fundamental legal error in that the Habitats Directive, properly construed, required the domestic legislation which implemented it to extend to the UKCS and the waters above; that the Secretary of State is obliged to carry out his licensing function in accordance with the Habitats Directive; and that, on that basis, he has particular responsibilities in the Nineteenth Round towards cetaceans (whales, porpoises and dolphins) and lophelia pertusa. There are many substantive issues in the case but at the forefront of them all is the issue as to the territorial scope of the Habitats Directive.

The legal context: international, European and domestic

The United Kingdom, the Member States of the European Community and the Community itself are all parties to the United Nations Convention on the Law of the Sea (UNCLOS).

Article 2 of UNCLOS provides:

"1. The sovereignty of a coastal State extends beyond its land territory and internal waters......to an adjacent belt of sea, described as the territorial sea.

2. This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil"

By Article 3:

"Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention."

UNCLOS also recognises two further concepts, namely the exclusive economic zone (EEZ) and the continental shelf. The EEZ is:

"an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention." (Article 55)

In an EEZ the coastal State has, inter alia:

"sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil......"

and jurisdiction with regard to "the protection and preservation of the marine environment" (Article 56.1).

The continental shelf of a coastal State comprises:

"the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance." (Article 76)

The coastal State exercises over the continental shelf "sovereign rights for the purpose of exploring it and exploiting its natural resources" (Article 77.1).

So far as the United Kingdom is concerned, it has not formally declared an EEZ but it has declared a 200 nautical miles exclusive fishery zone (EFZ) pursuant to section 1(1) of the Fishery Limits Act 1976. Also, as regards the continental shelf, by section 1(1) of the Continental Shelf Act 1964, any rights exercisable outside territorial waters with respect to the seabed and subsoil and their natural resources (except in relation to coal) are vested in the Crown. Section 1(7) enables areas of the continental shelf to be prescribed by Order in Council for the purposes of exploitation and this has occurred or will occur in relation to those areas which are to be subject to the Nineteenth Round. Thus it is common ground that the Nineteenth Round is concerned with areas outside the UK territorial sea but within the UKCS and its EFZ, and in respect of which the UK exercises sovereign rights.

Article 174 (formerly 130r) of the EC Treaty defines the objectives of Community policy on the environment and states:

"Community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Community. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay."

This is the provision upon which the Habitats Directive was expressly based.

The aim of the Habitats Directive is set out in Article 2 in the following terms:

"1. The aim of this Directive shall be to contribute towards ensuring biodiversity through the conservation of natural habitats and of wild fauna and flora in the European territory of the Member States to which the Treaty applies."

I shall have to return to several other parts of the Habitats Directive in some detail but the words I have emphasised in Article 2.1 are at the heart of the issue about its geographical scope. So far as the structure of the Directive is concerned, Articles 3 to 11 are headed "Conservation of natural habitats and habitats of species" and they are concerned with the setting up of "Natura 2000" a coherent European network of special areas of conservation (SACs). Article 12, the first of five articles headed "Protection of species", requires Member States to "take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV (a) in their natural range". That list refers to all species of cetaceans.

The Government of the United Kingdom sought to transpose the requirements of the Habitats Directive into domestic law in the Conservation (Natural Habitats etc.) Regulations 1994 ("the 1994 Regulations") which came into force on 30 October 1994. Their scope extends to any "European marine site", i.e.

"a European site which consists of, or so far as it consists of, marine areas"

and "marine area" is defined as:

"any land covered (continuously or intermittently) by tidal waters or any part of the sea in or adjacent to Great Britain up to the seaward limit of territorial waters." (Regulation 2(1))

In other words, up to twelve nautical miles.

The issues

At the commencement of his submissions, Mr. Pleming QC on behalf of Greenpeace, identified the issues in the application in a list. Although other counsel put forward other items or the same items but in a different form or sequence, I propose to approach the application initially by reference to Mr. Pleming’s list. It is as follows:

1. Does the geographical reach of Articles 4 and 12 of the Habitats Directive extend beyond a Member State’s land, internal and territorial waters, to apply to areas over which a Member State exercises sovereign rights, viz. the continental shelf and superjacent waters?

2. If so, do those provisions of the Habitats Directive apply to the area of the UKCS which the Secretary of State intends to offer for oil exploration in the Nineteenth Round?

3. Is there evidence to show that natural habitats of Community interest (reefs of lophelia pertusa) are likely to be found in those areas of the UKCS which the Secretary of State intends to offer for oil exploration in the Nineteenth Round or to be affected by licensed activities in those areas?

4. Are there species of Community interest (cetaceans) within Annex IV(a) of the Habitats Directive which have their natural range within the area of the UKCS and superjacent waters which the Secretary of State intends to offer for oil exploration in the Nineteenth Round?

5. Are the natural habitats and species referred to in 3 and 4, above, likely to be adversely affected by the proposed activities (oil exploration) in the area of the UKCS covered by the Nineteenth Round?

6. In forming his proposals for the Nineteenth Round, has the Secretary of State complied with the requirements of the Habitats Directive?

7. Has the Government correctly transposed the requirements of Article 12 to the protected species within any waters over which it has sovereignty or exercises sovereign rights?

8. Should Greenpeace be refused permission to apply for judicial review or be refused the relief which it seeks on the basis of delay?

The eighth and last issue there identified can also be seen, and is seen by the Secretary of State, as the first issue. However, if I were to answer the question in relation to delay adversely to Greenpeace, it would nevertheless necessitate consideration of at least some of the other issues. For example, if there has been a lack of promptness in the application, the question of an extension of time would fall for consideration and, in relation to that, an assessment of the merits and their public importance would need to be addressed.

Issue 1: the geographical scope of the Habitats Directive

What is meant by "the European territory of the Member States" in Article 2.1 of the Habitats Directive? The words are not the subject of express definition in the . Directive. As a matter of history, when the Commission first put forward the text of a proposed Directive, the words were "the European territory of the Member States, including maritime areas under the sovereignty or jurisdiction of the Member States", but the additional words were omitted from the final version. It is suggested on behalf of the Secretary of State and the Oil Companies that this illustrates an intention on the part of the Council to limit the Directive to land and the territorial sea, whilst the case for Greenpeace is that the omission was for the purpose of bringing the Habitats Directive in line with the earlier Directive on the Conservation of Wild Birds (79/409/EEC), Article 1 of which uses the same wording as Article 2.1 of the Habitats Directive. Indeed the EC treaty itself applies its provisions to "the European territories for whose external relations a Member State is responsible" (Article 299(4)), without further definition of "European territories". Mr. Pleming seeks to attach significance to this formulation and submits that it is not restricted to "sovereignty" in the strict sense and that Community Law must apply to activities in and over areas such as the Continental Shelf because otherwise they would be, in Community Law terms, "lawless zones". In this regard, he refers to Halsbury’s Laws of England, 4th edition, volume 51, paragraph 1-53:

"Community law should apply to areas such as the continental shelf and the contiguous zone which, although not ‘territory’ in the strict sense of the term, are, under the rules of international law, subject to the limited jurisdiction of the coastal state. Therefore the national control, particularly relevant to the exporation and exploitation of oil and mineral wealth, must be exercised subject to Community rules."

Clearly these submissions on behalf of Greenpeace are intended to reflect the purposive or teleological approach to construction with which we are all now familiar and which require no citation of authority at this stage. They are also a prelude to eight headings or propositions which, Mr. Pleming submits, all point to the geographical scope for which Greenpeace contends. It is to them that I now turn.

(1) Consistency with the object and purpose of the Habitats Directive

In the Preamble to the Habitats Directive, its "main aim" is referred to as being:

"to promote the maintenance of biodiversity, taking account of economic, social, cultural and regional requirements."

and it is stated that the Directive:

"makes a contribution to the general objective of sustainable development."

I have already set out "the aim of this Directive" as defined in Article 2.1. It is submitted on behalf of Greenpeace that these objectives are more likely to be achieved if the geographical scope extends to the continental shelf and its superjacent waters. Cetaceans spend only a limited amount of time in territorial waters and, like lophelia pertusa, are generally found beyond those limits. Cetaceans are specifically listed in Annex IV(a) and the purpose of the Directive in relation to them (and in relation to lophelia pertusa which is not specifically listed) is more likely to be achieved if the geographical scope is liberally construed.

(2) "The very nature of things"

This heading overlaps with the previous one. It is pointed out that in the context of fisheries, the context itself has generated a wider rather than a narrower geographical scope. In Officier van Justitie v. Kramer [1976] ECR 1279, 1308, the Court of Justice said:

"........although Article 5 of Regulation 2141/70 is applicable only to a geographically limited fishing area, it none the less follows from Article 102 of the Act of Accession, from Article 1 of the said Regulations and moreover from the very nature of things that the rule-making authority of the Community ratione materiae also extends - in so far as the Member States have similar authority under public international law - to fishing on the high seas."

Thus, to the extent that a Member State has competence in relation to the continental shelf, so does the Community. A similar approach can be seen in Commission v. Ireland [1978] ECR 417. Mr. Pleming submits that, upon the same basis, it is "in the very nature of things" that environmental protection laws, especially in relation to cetaceans, should also apply to "maritime waters coming within the jurisdiction" of the United Kingdom. He further relies upon a statement of principle In Kapteyn and Verloren van Themaat, Introduction to the Law of the European Communities, 3rd edition, 1998 p.92:

"It should not be deduced......that the sphere of application of the EC Treaty is restricted to territory falling under the sovereignty (i.e. complete jurisdiction) of a Member State. The sphere of application can stretch beyond such territory in so far as a Member State exercises sovereign rights (i.e. a functionally limited jurisdiction) under general international law, e.g. in relation to the continental shelf, fishing zones and perhaps in the future exclusive economic zones."

On behalf of the Secretary of State, Miss Sharpston QC does not dispute the principle but rather its application to the Habitats Directive. She relies on Addison v. Denholm Ship Management (UK) Ltd [1997] ICR 770, a decision of the Employment Appeal Tribunal in Scotland, which was concerned with the application of Council Directive 77/187/EEC and the Transfer of Undertakings (Protection of Employment) Regulations 1981.

In that case, counsel for the applicants had postulated a wide general principle that Community Law falls to be applied "not only in respect of the physical territory of the individual Member States but in respect of any area over which a Member State exercises jurisdiction with regard to the economic activities which take place within that area, since that represents a part of the economic activities of the lone Member State." The Tribunal rejected such a principle, Lord Johnston saying (at p. 779):

"We therefore conclude that the continental shelf is not within the territorial scope of the EC Treaty as being part of the United Kingdom in that context. Thus, Directive 77/187/EEC cannot be extended to cover the activities therein...."

In reaching this conclusion Lord Johnston described "the fishing cases" as "nothing to the point" (p.778). It seems that Commission v. Ireland (supra) and Regina v. Kirk [1984] ECR 2689 had been cited but, surprisingly, the Kramer case (supra) had not. If Addison is intended to mean that, as a matter of competence, a Directive or Regulation can have no application beyond the territorial sea of Member States, I do not think it can be correct. Indeed, "the fishing cases" show that it is not. If, on the other hand, it purports to be no more than a decision on Council Directive 77/187/EEC, then I find it of somewhat limited value in the present context. In my judgment, Mr. Pleming has correctly identified a principle relating to "the very nature of things". The issue is its application to the Habitats Directive.

(3) Practice under Community Law, as applied by the United Kingdom

Mr. Pleming’s next submission is that, since the Kramer case and Commission v. Ireland, the Community has routinely applied many of its laws to activities carried out in areas beyond territorial waters, including laws relating to oil exploration activities on the continental shelf, the control of pollution and the assessment of environmental impacts arising from oil-related activities. In turn, the United Kingdom has transposed these Community rules into domestic law and has applied them beyond territorial waters. I do not propose to refer to all the detail to which I was carefully taken in the course of submissions but it is necessary for me to refer to some of it.

Directive 94/22/EC "on the conditions for granting and using authorisations for the protection, exploration and production of hydrocarbons" relates to the "territory" of Member States (e.g. in Article 2.1) but this clearly means "territory" in a wide sense. Indeed, in the Preamble reference is made to Member States having:

"sovereignty and sovereign rights over hydrocarbon resources on their territories."

It is common ground that the Directive applies to the exercise of sovereign rights in relation to the UKCS. Interestingly, Article 6(2) allows Member States to impose conditions upon authorisations for the "protection of the environment.....[and] protection of biological resources". In the present case Ms. Harding, the deponent on behalf of the Secretary of State, says:

"Given the specific subject-matter of the Directive, it is highly likely that ‘territory’ in this context would go beyond territorial waters. Otherwise, the Directive would have very little purpose."

She and Miss Sharpston contend that that does not help in answering the question as to the geographical scope of the Habitats Directive. On the contrary, submits Mr. Pleming, who likens the context to conservation of a species in its natural range. Directive 94/22 was transposed into domestic law by the Hydrocarbons Licensing Directive Regulations 1995 which expressly refer to the UKCS.

The parties adopt similar respective positions in relation to Council Directive 95/21/EC which concerns shipping and working conditions on ships and extends to "offshore installations", i.e. fixed or floating platforms operating "on or over the continental shelf of a Member State" (Article 2).

Directive 90/531/EEC concerns public procurement procedures in the water, energy, transport and telecommunications sectors. It refers (Article 2.2(b)) to "the exploitation of a geographical area" but does not use the word "territory". The Secretary of State accepts that its application extends to areas where the United Kingdom exercises sovereign rights outside territorial waters. Mr. Pleming submits that this is, at least by inference, an adoption of the concept of "the European territory of the Member States to which the Treaty applies".

In 1992, the United Nations Conference on Environment and Development in Rio de Janeiro concluded the Convention on Biological Diversity. The Community and its Member States are signatories to the Convention. They thereby undertook, by Article 8, "as far as possible and as appropriate" to "establish a system of protected areas or areas where special measures need to be taken to conserve biological diversity", and to "promote the protection of ecosystems, natural habitats and the maintenance of viable populations, of species in natural surroundings". Article 4 of the Convention, headed "jurisdictional scope", provides that, subject to exceptions, the provisions of the Convention apply, in relation to each Contracting Party, to:

"(a) in the case of components of biological diversity, in areas within the limits of its national jurisdiction; and

(b) in the case of processes and activities, regardless of where their effects occur, carried out under its jurisdiction or control, within its national jurisdiction or beyond the limits of national jurisdiction."

Mr. Pleming submits that "processes and activities" include oil exploration and exploitation and, accordingly, the Convention applies to oil exploration and exploitation beyond territorial waters. The Habitats Directive and the Convention came into being within some three weeks of each other in May and June 1992. There is an express interrelationship between them. This is recognised in the Declaration whereby the Community gave effect to the Convention:

"In accordance with the relevant provisions of the Treaty....., the Community alongside its Member States has competence to take actions aiming at the protection of the environment. In relation to the matters covered by the Convention, the Community has adopted several legal instruments, both as part of its environment policy and in the framework of other sectoral policies, the most relevant of which are listed below:"

The Habitats Directive is one of those "listed below". This causes Mr. Pleming to submit that it would be curious for the Convention and the Directive to apply to different geographic areas, given their similarity of objectives and that if the Habitats Directive had been intended to have no application beyond territorial waters, some reference to such a limitation would have been made. When, on the other hand, a narrower geographic area is intended in a Council instrument, it is quite capable of saying so as, for example, in Council Regulation 2913/92, establishing the Community Customs Code, which provides that the "customs territory of the Community" includes "the territorial waters, the inland maritime waters and the airspace of Member States." (Article 3.3).

Finally, Mr. Pleming draws attention to what has occurred in relation to environmental impact assessments. They are the subject of Council Directive 85/337/EEC, as amended by Council Directive 97/11/EEC. Article 7, as amended, refers to "the Member State in whose territory the project is intended to be carried out". The scheduled projects include extraction of petroleum and natural gas and pipelines for its transportation. In the specification of the types of projects as being subject to an assessment and the establishment of criteria, the environemtal sensitivity of geographical areas likely to be affected by projects must be considered, having regard, in particular, to inter alia areas classified or protected under the legislation of Member States including special protection areas arising from the Habitats Directive. Although the environmental impact assessment Directives do not define "territory", the Secretary of State accepts that their scope extends beyond territorial waters in the strict sense. Indeed, the Offshore Petroleum Production and Pipelines (Assessment of Environmental Effects) Regulations 1999 expressly embrace "waters in any area for the time being designated under section 1(7) of the Continental Shelf Act 1964" and the seabed and subsoil beneath them and "relevant projects" include "the drilling of an exploration oil well" (Regulation 3(1). All this leads Mr. Pleming to submit that, given the express linkage between the environmental impact assessment Directives and the Habitats Directive, differences in their geographical scope would be absurd. It would mean that there was overlapping procedural protection for differential substantive protection. Miss Sharpston, on the other hand, submits that the different Directives admit of different teleological interpretations.

(4) The Community’s signature and ratification of UNCLOS

When the community signed UNCLOS on 7 December 1984, it made a Declaration in the following terms:

"Furthermore, with regard to rules and regulations for the protection and preservation of the marine environment, the Member States have transferred to the Community competences as formulated in provisions adopted by the Community and as reflected by its participation in certain international agreements."

Relevant international agreements have come into being both before and after UNCLOS. They now include the Convention on the Conservation of Migratory Species of Wild Animals of 1979 (the Bonn Convention), the Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas of 1991 (ASCOBANS), the Biodiversity Convention of 1992 (the Rio Cnvention to which I have already referred) and the Convention on the Protection of the Marine Environment of the North Sea of 1992 (the OSPAR Convention). Mr.Pleming observes that each of these agreements addresses the same subject-matter as the Habitats Directive and each applies beyond territorial waters.

In March 1998 the Community deposited its instrument of formal confirmation of UNCLOS. It declared that UNCLOS:

"shall apply, with regard to the competences transferred to the European Community, to the territories in which the Treaty establishing the European Community is applied and under the conditions laid down in that Treaty, in particular Article 227 thereof."

The instrument goes on to distinguish between matters for which the Community has exclusive competence and matters in respect of which it shares competence with the Member States. The matters of exclusive competence include "conservation and management of sea fishing resources". So far as the prevention of marine pollution is concerned:

"the Community has exclusive competence only to the extent that such provisions of the Convention or legal instrument adopted in implementation thereof affect common rules established by the Community....."

An Appendix lists relevant Community acts. It includes a list of Community acts "which refer to matters governed by the Convention and the Agreement". One of those listed in relation to that part of UNCLOS which refers to the prevention of marine pollution is the Habitats Directive.

Mr Pleming submits that the use of the word "territories" in this context must extend to maritime areas over which Member States exercise jurisdiction or sovereign rights. Indeed, the Community is expressly stated to have competence (exclusive or shared) in relation to EEZs. The Habitats Directive is expressly stated to be relevant to the prevention of marine pollution and the part of UNCLOS relating to that establishes obligations in respect of activities carried out within and beyond territorial waters. Moreover, the environmental impact assessment Directive (85/337/EEC) is also expressly stated to be relevant to the prevention of marine pollution and, as I have related, that Directive is applied by the United Kingdom beyond territorial waters. It is therefore submitted that this network of international instruments all points to the Habitats Directive applying to the continental shelf and superjacent waters. If that had not been the intention, submits Mr. Pleming, the contrary intention would have been expressed.

(5) United Kingdom legislation extending beyond territorial waters

I have already referred to an example of the United Kingdom legislating beyond territorial waters in the Directive-driven sphere of environmental impact assessments. Mr. Pleming also relies on other instances. For example, section 5(a) of the Food and Environmental Protection Act 1985 required licences for the deposit of substances and articles "within United Kingdom waters, either in the sea or under the seabed". By section 146(2) of the Environmental Protection Act 1990, this was amended so as to extend to "United Kingdom waters or United Kingdom controlled waters". Whereas "United Kingdom waters" are defined in section 24(1) of the 1985 Act as coextensive with territorial waters, "United Kingdom controlled waters" extend to "any part of the sea within the limits of an area designated under section 1(7) of the Continental Shelf Act 1964" (section 146(7) of the 1990 Act). Similarly, the Merchant Shipping (Oil Pollution Preparedness, Response and Cooperation Convention) Regulations 1998 apply to, inter alia, offshore installations "in United Kingdom waters and in any area designated under the Continental Shelf Act 1964"

The Whaling Industry (Regulation) Act 1934, which grew out of the Geneva Convention for the Regulation of Whaling of 1931, regulates whaling "within the coastal waters of the United Kingdom" (section 2). By section 7, "coastal waters" are defined by reference to "British fishery limits" and by section 1(1) of the Fishery Limits Act 1976, fishery limits now extend to 200 miles from the territorial sea baselines.

Mr. Pleming describes these statutory enactments as "a web of provisions where the United Kingdom Government has done what it ought to have done".

(6) Government statements

The Habitats Directive is dated 21 May 1992. The 1994 Regulations which sought to implement it was made on 20 October 1994. I have been referred to a number of statements made between those dates which, Mr. Pleming submits, illustrate the understanding of the Government at that time as to geographical scope of the Directive. On 2 April 1993 the Minister of State for Agriculture, Fisheries and Food, Mr. David Curry MP, stated in the House of Commons:

"The EC has agreed to the Habitats Directive.....Under the Directive, all species of cetaceans will be protected in the Community’s territorial waters up to 200 miles."

The issue had arisen in the context of the possible accession of Norway to the Community and concern about that country’s whaling industry.

On 13 July 1994 Mr. Heathcot-Amory MP, Minister of State for Foreign and Commonwealth Affairs, was asked in the course of a debate in the House of Commons when, after accession, Norway would have to cease whaling "or find themselves in contravention of EU law". His answer was:

"When Norway joins the European Union - on 1 January next year, I hope."

Without going into too much detail, reference was also made to a letter from the Ministry of Agriculture, Fisheries and Food (MAFF) to the Royal Society for the Prevention of Cruelty to Animals dated 11 February 1994 and another from the UK Commissioner to the International Whaling Commission to Greenpeace dated 26 September 1994 and written on MAFF notepaper which were to similar effect.

Mr. Pleming submits that this material, particularly the statement by Mr. Curry, shows that the Government was at that time placing the wider construction on geographical scope and was right to do so. Miss. Sharpston responds that Mr. Curry’s language of "the Community’s territorial waters up to 200 miles" is ambiguous or self-contradicting and that none of this material is a helpful aid to interpretation.

(7) The view of the Commission

Turning to statements made by or on behalf of the Commission, Mr. Pleming refers first to an answer published in the Official Journal on 27 April 1974 in response to a question about North Sea oil:

".....the Commission considers that the provisions of the Treaty, and of the acts of the Community pursuant to the Treaty, clearly specify the sovereign rights enjoyed by Member States over economic activities on the Continental Shelf and in particular over the exploitation and exploration of oil resources. (This view was first stated by the Commission in its 1970 Memorandum to the Council, in which the Commission affirmed the applicability of the Treaty as much to the Continental Shelf as to the mainland territory of Member states)."

That, of course, was long before the Habitats Directive. However, it is a theme which has continued. Mrs Commissioner Bjerragaard answered a written question on 17 Janaury 1997 in these terms (Official Journal 5 May 1997):

"[The Habitats Directive]......applies to terrestrial and marine areas. As far as Member States have competence, it applies to the [EEZ]. However, the marine species and habitats concerned generally have their main range inside territorial waters."

This came after a letter from the Commission to Greenpeace dated 18 November 1998, stating:

".....a coastal Member State has a duty in its national legislation to prohibit the deliberate capture and killing of Annex IV marine species, not only within its territorial sea, but also within its EEZ. Other obligations deriving from Articles 12-16 should also be transposed into national legislation in such a way that they apply to the EEZ as well."

The Commission has recently reiterated this view in a Communication on Fisheries Management and Nature Conservation in the Marine Environment, addressed to the Council and the European Parliament (COM (1999) 363). In view of the timing and formality of this document it is rather more authoritative of the views of the Commission than an earlier letter to a civil servant in the Department of the Environment, Transport and the Regions dated 20 April 1998 and which referred to the geographical scope of the Habitats Directive in more cautious terms. On behalf of the Secretary of State, reference was also made to an interpretation of "territory" given by the Council Legal Service in May 1998 in the context of a proposed Directive relating to the reduction of the sulphur content of certain liquid fuels. It confined it to the territorial sea. The full context is not known to me but, in any event, it is not the same as the Habitats Directive.

(8) International obligations

I have already referred to international treaty obligations which are binding upon the Community and/or the United Kingdom and which impose environmental duties in areas beyond territorial waters, including UNCLOS, the Rio Convention on Biodiversity, the Bonn Convention on the Conservation of Migratory Species of Wild Animals, ASCOBANS and OSPAR. It is submitted on behalf of Greenpeace that all this amounts to a significant volume of international obligation which commits the Community and the United Kingdom to environmental control beyond territorial waters and that it is appropriate to construe the Habitats Directive consistently with it. Reliance is placed on Commission v. Belgium [1993] 1 CMLR 365,397, in which the Court of Justice appears to have taken comfort from the fact that its interpretation of Community law in relation to the movement of hazardous waste was consistent with the provisions of the Basle Convention of 1989, to which the Community is a party.

Miss Sharpston submits that, in this context, international obligations are not all one way. In particular, she refers to the Esbjerg Declaration of 1995 which was produced by the Fifth International Conference on the North Sea. The parties to this included several but not all the Member States of the Community (the United Kingdom was a party), the Community itself and some other European states which are not members of the Community (including Norway and Switzerland). By the Declaration, "EU Member States, in support of the EU Birds and Habitat Directives, agreed to collaborate to the full realisation of NATURA 2000...., inter alia in the coastal waters of the North Sea......." The Ministries of all the signatories also recognised:

"that the marine ecosystem of the North Sea is an independent whole, the protection of which, nevertheless, has to be addressed within the framework of the various national, European Union and wider international legal systems. The Ministers thus Agree on two levels of action which have to be co-ordinated:

1. Action within territorial waters: a significant component of this will be the implementation in EU Member States of the Birds and Habitats Directives, including co-ordination of this work through NATURA 2000; and

2. Action within the rest of the North Sea: this may require new forms of co-operation between North Sea States."

Miss Sharpston referred me to other parts of the Declaration but it was to this juxtaposition that she attached greatest significance.

Mr. Pleming, on the other hand, invites me to view it in a very different way. He describes it as "no more than a statement of political intent" to which not all Member States were direct signatories, whilst other signatories were not Member States. The person who signed on behalf of the Community was none other than Mrs Commissioner Bjerragaard, who has subsequently expressed herself in a manner wholly consistent with Greenpeace’s case in (see above). Moreover, the document itself is not wholly unambiguous. For example, whereas the passage I have quoted refers to "territorial waters", an earlier passage refers to the important contribution of the Habitats Directive in relation to "coastal waters", a term which, at least in the context of the Whaling Industry (Regulations) Act 1934, now has the extended meaning to which I have referred.

Thus far I have been considering the question of geographical scope by setting out the submissions made on behalf of Greenpeace, alongside which I have referred to some of the contrary submissions. It is now necessary to refer to some further submissions made on behalf of the Secretary of State, together with the responses on behalf of Greenpeace.

(a) The land-based nature of the Directive

Miss Sharpston submits that the words "European territory of the Member States" in Article 2 point to general principles of international law whereby "territory" connotes land, inland waters and territorial sea. Moreover, the land - based nature of the Directive is illustrated by the reference in Article 3.3 to maintaining and developing "features of the landscape which are of major importance for wild fauna and flora" and the reference in Article 10 to "land - use planning and development policies.....to encourage the management of features of the landscape........." In addition, the site protection measures envisaged by Article 6.1 are based on existing concepts of land management and are inappropriate to the marine environment beyond territorial waters. Mr. Pleming accepts that, in classical international law, "territory" has the narrower meaning for which Miss Sharpston and the Oil Companies contend. However, he submits that the word does not have a fixed meaning for all time and that, in various circumstances to which I have previously referred, it is plainly used in Community Law so as to extend beyond territorial waters in the strict sense, to include areas over which Member States exercise sovereign rights.

(b) Drafting history

I have already referred to the alteration which occurred between an earlier draft and the final version of the Directive. It is said on behalf of the Secretary of State (on the basis of advice from someone who was present during the later stages of the negotiations) that the change reflected an express intention to exclude the area beyond territorial waters. Indeed, it is said that at one stage there was a disagreement about the inclusion of territorial waters. However, the final version was intended to include territorial waters but exclude the areas further offshore. Greenpeace relies on the evidence of Mr. S.P. Johnson who was responsible for most of the original drafts of the main text but who left the Commission in 1990. He suspects that the purpose of the alteration was to bring the Habitats Directive in line with the Birds Directive.

(c) Legal Difficulties

Miss Sharpston submits that substantial legal difficulties would be caused if the Habitats Directive were to be applied outside territorial waters. She identifies two such difficulties as "the most significant". First, fishing causes some of the greatest adverse impacts on the marine environment in relation to both species and habitats. The common fisheries policy seriously circumscribes the ability of Member States to adopt measures to deal with the problems caused by fishing. However, the most relevant Regulation (3760/92) which so limits the powers of Member States post-dated the Habitats Directive by some eight months. Secondly, UNCLOS Article 78.2 provides that the exercise of the rights of the coastal state over the continental shelf "must not infringe or result in any unjustifiable interference with navigation and other rights and freedoms of other States as provided for in this Convention". It is common ground that shipping may be environmentally damaging. All this, Miss Sharpston submits, is an indication or pointer towards the narrower geographical scope of the Habitats Directive. However, the difficulty with the submission is that, as there is no hierarchy of norms or interests recognised by the law, it is virtually inevitable that there will be tensions between different international regimes of protection and entitlement.

Conclusion on geographical scope

My task is to concentrate on the text of the Habitats Directive, bringing to it where necessary the purposive or teleological approach to which I have referred. In my judgment the wider scope contended for by Greenpeace is correct. It seems to me that a Directive which includes in its aims the protection of inter alia, lophelia pertusa and cetaceans will only achieve those aims, on a purposive construction, if it extends beyond territorial waters. Although much of the concern of the Directive and some of its language can properly be described as "land-based", it also deals specifically with some habitats and species which are sea-based and, to a large extent, flourish beyond territorial waters. Also, I derive some assistance from the authorities to which Mr. Pleming referred under the heading "the very nature of things" but little from Addison v. Denholm Skip Management (UK) Ltd, for reasons I have already stated. In addition, I find support for my conclusion in the submissions about the environmental impact assessment directives and, to a lesser extent, some of the other Community measures to which reference was made. Indeed, I consider that the balance of the Community, international and domestic materials to which I have referred militates substantially in favour of the wider construction of geographical scope. I am here referring particularlyto the submission made by Mr. Pleming under (3), (4), (5) and (8) above. I have considered the post-Directive statements of Government Ministers and the Commission. They give an insight into what various people thought at the time when the statements were made but they are of little value in the task I have to perform. Likewise the drafting history. I do not pretend that, overall, the indications are all one way. They are not. However, I have no doubt that the more important aids to construction substantially favour the wider geographical scope.

Issue 2: The Habitats Directive and the Nineteenth Round

The second issue identified by Mr. Pleming is not really an issue at all. Clearly if the Habitats Directive, properly construed, has the wider geographical scope and applies to all areas over which Member States exercise sovereign rights, including the UKCS and superjacent waters, its application extends to the area of the Nineteenth Round. The Secretary of State does not contend otherwise and, apart from their position on direct effect (to which I shall return briefly at the end of this judgment), neither do the Oil Companies.

Issue 3: Lophelia pertusa and the Nineteenth Round

This issue (if such it is) is encapsulated by Mr. Pleming in the following question: is there evidence to show that natural habitats of community interest (reefs of lophelia pertusa) are likely to be found in those areas of the UKCS which the Secretary of State intends to offer for oil exploration in the Nineteenth Round or are likely to be affected by licensed activities in those areas? Before turning to the evidence, it is necessary for me to refer in a little more detail to the provisions of the Habitats Directive.

Lophelia pertusa is not specifically mentioned in the Directive. Articles 3-11 inclusive come under the heading "Conservation of natural habitats and habitats of species". The basic provision is set out in Article 3.1:

"A coherent European ecological network of special areas of conservation shall be set up under the title Natura 2000. This network, composed of sites hosting the natural habitat types listed in Annex I and habitats of the species listed in Annex II, shall enable the natural habitat types and the species habitats concerned to be maintained or, where appropriate, restored at a favourable conservation status in their natural range."

I shall refer to special areas of conservation as SACs. The Directive goes on to require Member States to propose lists of potential SACs and to submit the lists to the Commission within three years of the notification of the Directive, after which the Commission is required to establish a draft list of sites of Community importance drawn from the Member States’ lists. The Commission’s list was to be established within six years of the notification of the Directive. Once a site has been adopted in accordance with this procedure, the Member State in question has to designate it as a SAC as soon as possible and within six years at most (Article 4.4). Although Mr. Ouseley sought to derive some comfort from this timetable, in the sense that it can not now be rigorously observed, the reality is one of a continuing Community interest. Lophelia pertusa is not specifically referred to in the Directive, but the list of natural habitat types in Annex I includes "reefs"

The case for Greenpeace is that lophelia pertusa is a reef-forming coral. They rely mainly on two affidavits of Dr. Alex Rogers. The Secretary of State does not dispute that it is a reef-forming coral, but the Oil Companies do. They rely on a report of Professor A.D. McIntyre which was originally prepared in connection with Greenpeace 1. He concluded that lophelia pertusa is "a colonial, non-reef-building coral which is found in deep water in many parts of the world". He was critical of the expert evidence submitted by Greenpeace at that time and also took issue with the meaning of the word "reef" in the context of cold deep-water corals. In the present case, Greenpeace has submitted a good deal of new material based on the latest researches of Dr. Rogers and Dr. Paul Johnston. It has made use of independent survey work which has taken place since Greenpeace 1. They have also relied on the recent published work of others. The Greenpeace evidence seeks to answer Professor Mc Intyre’s 1997 Report with chapter and verse. The Oil Companies have enlisted the help of Professor Mc.Intyre again. However, all that has materialised from him is a three-line letter from a Paris hotel dated 28 June 1999 (over three months prior to the hearing). It simply confirms that "the information contained in that Report [i.e. the 1997 one] remains the same today". He does not specifically address the more recent field work or anything said by Dr. Rogers and Dr. Johnston. In view of that deficiency and in the light of the stance of the Secretary of State, I shall proceed on the basis that lophelia pertusa is a reef-forming coral. Indeed, the Commission has published an Interpretation Manual of European Union Habitats in connection with the Habitats Directive and it includes an interpretation of "reefs" which accords with and provides the basis for that adopted by Dr. Rogers.

Dr. Rogers states that the North East Atlantic is a favoured habitat for lophelia pertusa. He refers to a number of factors supporting that view, probably the most important of which derive from recent surveys by the oil industry and the scientific community. He attaches particular significance to a survey known as AMES 98 which relates to seafloor sample areas located to the North and West of Hebrides. It detected hitherto unknown reef sites of deep-sea coral referred to as the Darwin Mounds. Further sites have been found by another survey which was financed by the European Union. They were in the Rockall Trough and the Porcupine Seabight. The Darwin Mounds are at least partly in the area covered by the Seventeenth Round. Mr. Tasker of the Joint Nature Conservation Committee (a statutory body) advised the Secretary of State in relation to the Eighteenth Round. In a letter dated 22 October 1997 he stated:

"I think it would be reasonable to assume that the coral [i.e. lophelia pertusa] is occurring here within its typical depth range and on the shelf edge where water flow might be expected to be higher. [Three specific areas] seem the most likely to contain lophelia, though other areas cannot be ruled out."

On 16 September 1999 the Treasury Solicitor, responding to a question posed by Greenpeace, stated:

"The Government is advised by the JNCC that, if the Habitats Directive were held to apply beyond the territorial limit, then, on the basis of available evidence the Darwin Mounds would be likely to constitute reefs for the purposes of the Directive. The presence or absence of lophelia pertusa, although of interest, would not be critical to this decision."

And Miss Harding states in her affidavit:

"I am advised by Mark Tasker that so far as records of occurrences of lophelia pertusa are concerned, there is little or no dispute between [Greenpeace] and the Secretary of Sate."

However, she goes on to challenge Greenpeace’s views as to likely harm from drilling and exploration.

Since the present application was filed, the Government has negotiated a final settlement on an area of sea known as the "White Zone". Some of it may well fall within the area of the Nineteenth Round. It is likely that lophelia pertusa will be present in the White Zone, which shares significant characteristics with the Darwin Mounds.

All this (and I have mentioned only parts of the material) leads Dr. Rogers to the conclusion that:

"there is good evidence to suggest that there are potential lophelia reef sites for identification under the Habitats Directive for designation as special areas of conservation. New evidence is coming to light on an almost daily basis that will add to our existing knowledge about their location and the need for their conservation."

Once it is accepted that lophelia pertusa is reef-forming, I do not think that there can be any serious dispute about this conclusion, nor about its pertinence to the Nineteenth Round.

As I have indicated, there is an issue about likely harm, illustrated by the statement of Miss Harding that "there is no convincing evidence to support the conclusions [of Greenpeace] as to likely harm to lophelia pertusa from drilling and exploration operations offshore." However, Dr. Rogers and Dr. Johnston have set out a number of adverse effects likely to be consequent upon drilling and exploration in the same or a nearby area. Their evidence is reasoned and specific and, significantly, it has not been responded to on this issue by any expert evidence from the Secretary of State or the Oil Companies. In the circumstances, I shall proceed on the basis that their evidence is correct.

Putting all this together, I conclude that the answer to the question posed at the beginning of this section is that oil exploration activities will be at least likely to have an adverse effect on lophelia pertusa in relation to the area included in or affected by the Nineteenth Round. It is also implicit in what I have said that, in my judgment, reefs of lophelia pertusa fall within the scope of "natural habitat types of Community interest" as provided in Article 3 and Annex I of the Habitats Directive.

Issue 4: Cetaceans and the Nineteenth Round

By Annex IV to the Habitats Directive all species of cetacea come within "species of Community interest in need of strict protection". On the evidence before me it is beyond dispute that cetaceans exist "in their natural range" (Article 12.1) in the waters of the Atlantic Frontier, which contain a high diversity of cetacean species. It is also clear that harm can be caused to cetaceans by a variety of aspects of oil exploration and production. There is copious evidence before me to that effect in the affidavits of Mark Simmonds and the report of Anna Moscrop and Rene Swift provided for Greenpeace in March 1999. It is substantially uncontradicted. In her first affidavit, Miss Harding stated:

"I believe that the evidence put forward by [Greenpeace] does not show that any harm has occurred or will in future occur to cetaceans as a result of any oil and gas activity, including seismic activity."

However, in a second affidavit she explained that that was an error and that it should have referred to "the conservation status of cetaceans" rather than simply "cetaceans". In other words, she is not suggesting that there is no evidence to show that harm has occurred or will occur to cetaceans as a result of oil and gas activity. I have to say that I do not find the corrected version to be particularly intelligible. Be that as it may, the evidence and materials provided by Greenpeace are to the effect that oil exploration, including seismic activity, is harmful to cetaceans and has serious implications for conservation. There is no real evidence to the contrary before me. I shall proceed on the basis that it is substantially correct.

Issue 5: in forming the proposals for the Nineteenth Round, has the Secretary of State complied with the Habitats Directive?

This is numerically the sixth issue identified by Mr. Pleming but I have enumerated it the fifth because I have dealt with his fifth issue in the course of what I have said about the third and fourth issues.

On behalf of the Secretary of State, Miss Sharpston candidly concedes that, if the Habitats Directive has the wider geographical scope which I have held it has, then the Secretary of State failed to have regard to it when setting in motion the Nineteenth Round. Quite simply, he did not have regard to a measure which he considered to be inapplicable.

Issue 6: Article 12 of the Habitats Directive

Greenpeace’s case in relation to cetaceans is based on Article 12 which provides:

"1. Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV (a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing and hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places."

Greenpeace does not rely on (a) or (c) but I include them because of the construction issues which arise. The transposition of these requirements into the 1994 Regulations took the following form:

"39 (1) It is an offence-

(a) deliberately to capture or kill a wild animal of a European protected species;

(b) deliberately to disturb any such animal;

(c) deliberately to take or destroy the eggs of such an animal;

(d) to damage or destroy a breeding site or resting place of such an animal."

Regulation 40(3) provides certain defences, the most relevant one being that a person is not guilty by reason of:

"(c) any act made unlawful by that regulation if he shows that the act was the incidental result of a lawful operation and could not reasonably have been avoided."

These Regulations are, of course, applicable only up to the seaward limit of territorial waters (Regulation 2(1)). Several sub-issues arise in relation to Article 12 and Regulations 39 and 40.

Greenpeace contends for a wide construction of Article 12(1). In making his submissions, Mr. Pleming puts Article 12 in the context of the aim of the Habitats Directive as set out in Article 2 (to which I have already referred) as providing the basis for a purposive construction. He also refers to the "precautionary principle" referred to in Article 174 (formerly Article 130r) of the EC Treaty which I set out earlier. Thus, it is submitted, Article 12(1) provides for a duty not only in relation to the prohibitions listed as (a) to (d) but also in relation to a free-standing duty to establish a system of strict protection. As against this, Miss Sharpston (supported by Mr. Ouseley) submits that there is no free-standing duty to establish a system of strict protection. The words "a system of strict protection" are not defined in the Directive and so, it is submitted, the prohibitions listed as (a) to (d) are, in effect, the definition. The key word is "prohibiting", which indicates that the following provisions are an exhaustive code so far as the requirement to establish a system of strict protection is concerned. In my judgment, Miss Sharpston and Mr. Ouseley are right. Their construction is the more attractive from a literal standpoint and a purposive approach does not justify a construction of the width contended for by Mr. Pleming. It would lead to a system of protection on land and at sea of a degree which cannot have been contemplated.

The next point of construction relates to the meaning of the word "deliberate" in the context of deliberate disturbance (Article 12.1 (b)). The assumed factual matrix is that oil exploration activities of the type contemplated will or are likely to or may disturb cetaceans particularly during breeding, rearing, hibernation and migration. Mr. Pleming submits that when an operator conducts an activity in the knowledge that such disturbance will result or knowing that it is likely or possible that it will result, he is "deliberately" disturbing. It does not require an intention or desire to disturb, simply that the consequence is known or foreseen or foreseeable. Miss Sharpston and Mr. Ouseley submit that that is an erroneous construction of "deliberate" which, it is suggested, is the antithesis of "incidental". On their, narrower, construction "deliberate disturbance" connotes a specific aim of disturbing a species. They also point to Article 12.4 which provides:

"Member States shall establish a system to monitor the incidental capture and killing of the animal species listed in Annex IV(a). In the light of the information gathered, Member States shall take further research on conservation measures as required to ensure that incidental capture and killing does not have a significant negative effect on the species concerned."

The word "deliberate" is not commonly used in our domestic criminal law to prescribe the mental element of an offence. When we use it, it tends to be in contradiction to "accidental" and to relate to an act rather than to its consequences, in respect of which we tend to resort to concepts of "intention" and "recklessness". This no doubt explains why counsel, in this impressively prepared case, have been unable to cite authority from our criminal jurisprudence on the meaning of "deliberate". However, Mr. Pleming did refer to Marcel Beller Ltd v. Hayden [1978] 3 All ER 111 where the subject-matter was an exception in an insurance policy in relation to death resulting from "deliberate exposure to exceptional danger". The danger in question was that involved in driving when drunk. It was held that the words meant conscious exposure to such danger. There was no evidence that the deceased had deliberately chosen to take the risk. His driving, although negligent, did not amount to a deliberate exposure to exceptional danger. Assuming that that case was correctly decided on this point, I do not find it to be of much assistance in the present context.

In my judgment, the submissions of Miss Sharpston and Mr Ouseley and the antithesis of "deliberate" and "incidental" are correct. I do not consider that it could properly be said that the Oil Companies engage in the deliberate disturbance of cetaceans. However, whilst that may put an end to Greenpeace’s reliance on paragraph (b), it does not deal with paragraph (d) where the word "deliberate" is absent. Mr. Ouseley submits that, since paragraph (d) relates only to destruction or deterioration of breeding sites or resting places and not to species or specimens, it presupposes some permanent and/or physical damage to a site and that, as cetaceans do not have anything comparable with, say, a badger sett, they fall outside the ambit of paragraph (d). That is a submission of typical ingenuity but it is difficult to accept or reject it on the evidence.

I have already referred to Regulation 40 (3)(c) and the defence of "incidental result of a lawful activity" which "could not reasonably have been avoided". This provision has polarised the parties. To Greenpeace it is a wholly unwarranted and unlawful derogation from Article 12 but it is nevertheless a useful aid to construction. To the Secretary of State and the Oil Companies it is justifiable, lawful and, as an aid to the proper construction of Article 12, it does nothing to assist Greenpeace. I shall have to return to the question whether Mr. Pleming’s primary submission is correct. For the moment, I am concerned with its potential as an aid to construction. Mr. Pleming submits that Regulation 40(3)(c) presupposes that, in the absence of the defence which it purports to provide, the act in question would fall foul of Regulation 39(1) - and therefore Article 12. In other words, "incidental" disturbance or deterioration would come within the prohibition. I do not consider this approach to be correct because Regulations which are intended to transpose the requirements of a Directive are of limited value in the construction of the Directive itself. At the highest, all that can be said is that the point is indicative of the Government holding a different view on the issue of construction at the time of transposition from the one they now postulate.

The next question is whether Regulation 40(3)(c) can live in harmony with the Habitats Directive. Mr. Pleming submits that it cannot because it has no basis in the Directive and it has the effect of an impermissible derogation from the Directive. As the Regulations apply only to the limit of territorial waters, the transposition of Article is deficient even there.

Miss Sharpston submits that Regulation 40(3)(c) is entirely compatible with Article 12. She relies on the antithesis between "deliberate" in Article 12.1 and "incidental" in Article 12.4. And, although "deliberate" is absent from Article 12.1(d) which does not cross-refer to Article 12.4, it is, she submits, open to a Member State to transpose Article 12.1 (d) with a defence of the kind found in Regulation 40(3)(c). In other words, it falls within the margin of appreciation or discretion. She refers to Ministero delle Finanze v. Philip Morris (Belgium) SA [1993] ECR I - 3469 and Regina v. Secretary of State for Health, exparte Gallaher Ltd [1993] ECR I -3545. In a different context (tobacco advertising), those cases illustrate how some Directive provisions admit of a degree of discretion in Member States when transposing but others do not. In the final analysis it is a matter of interpretation . So far as Article 12 of the Habitats Directive is concerned, I can see no reason why a Member State should not include in its transposition a defence of the kind found in Regulation 40(3)(c). It is significant, as Mr. Ouseley points out, that Article 12, while expressed in terms of "prohibition", does not in terms require the creation of criminal offences. This Member State has chosen to express the prohibition in the form of criminal offence. In the circumstances, it is entirely natural, reasonable and within the degree of discretion, that the criminal offences are defined (whether by reference to a defence or otherwise) in a manner which is clear and consistent with the style and ethos of our criminal law. Moreover, without Regulation 40(3)(c), the range of criminality which might arise in the course of carrying out activities which are in other respects lawful would be intolerable, especially if Article 12.1(d) were allowed to create a crime of virtually strict liability.

In my judgment there is great force in the submissions of Miss Sharpston and Mr. Ouseley in relation to Regulation 40(3). I do not consider it to be an unlawful derogation from the requirements of Article 12 and, accordingly, I do not find the transposition to be deficient as regards territorial waters.

It follows from all that I have said in relation to Article 12 that I am deciding the construction points in favour of the Secretary of State (and the Oil Companies) and against Greenpeace.

The conclusions to which I have come about the construction of Article 12 preclude the necessity of my dealing in detail with some other submissions which were made about cetaceans. However, I record in passing that submissions were made on behalf of the Secretary of State and the Oil Companies about "other measures" which exist and which provide a significant amount of protection to cetaceans both in territorial waters and in the waters above the UKCS. Reference was made to ,inter alia, the licensing system itself and the conditions which are included in licences; national legislation, not only in relation to whaling but including the Prevention of Oil Pollution Act 1971, the Food and Environmental Protection Act 1985, and various Regulations concerning merchant shipping and oil pollution; international obligations arising under, for example OSPAR and ASCOBANS; environmental impact assessments carried out pursuant to the Offshore Petroleum Production and Pipelines (Assessment of Environmental Effects) Regulations 1999 which implemented the Environmental Impact Assessment Directive; the JNCC guidelines; and the co-operative practices which exist between the Government and the Oil Companies.

It is justifiable to observe that all this provides a significant amount of control and protection. However, if I had held that Greenpeace were correct as regards the construction of Article 12, it would not have been open to the Secretary of State and the Oil Companies to argue that the existing measures and practices operate in effect as an implementation of Article 12 (so construed) or its equivalent.

Issue 7: Delay/Relief

I now come to the final issue and the one which the Secretary of State and the Oil Companies put at the heart of their submissions. Before dealing with it, it is as well to take stock of the principal findings I have already made. They amount to this: (1) in confining the 1994 Regulations to land and waters within the territorial sea, the Government failed to give full effect to the Habitats Directive which applies also to the UKCS and its superjacent waters; (2) the Secretary of State admittedly did not have regard to the Habitats Directive when publishing his intentions for the Nineteenth Round; (3) so far as lophelia pertusa is concerned, the omission to consider whether any of the areas which will or may come within the Nineteenth Round may qualify for designation as SACs is a potential ground of challenge in these proceedings; but (4) the provisions of the Habitats Directive regarding cetaceans, properly construed, do not provide Greenpeace with grounds of challenge.

In Greenpeace 1, where the evidence dealt with Lophelia pertusa (albeit less comprehensively than before me ) but not cetaceans, Greenpeace was refused leave to move for judicial review by reason of delay. There, Laws J. heard detailed submissions on delay but, it seems, far less argument on the substantive issue. The Secretary of State (and the Oil Companies) had conceded that Greenpeace’s case was arguable, although they contended that it was "weak". Having found against Greenpeace in relation to delay, Laws J. had to consider whether it was appropriate to excuse delay and extend time and, in that regard, he had to consider the substantive merits. However, he concluded that it was inappropriate "to enter into the detail" on a leave hearing, but that:

"having looked carefully at the materials placed before me, I will go so far as to say only that I consider [Greenpeace’s] case to be very difficult."

The hearing before me has taken a very different course. Not only is the evidence different. All parties have conducted the case from beginning to end in a way which included full submissions on comprehensive evidence. This, of course, has been in the context of Jowitt J’s order that the application for permission and the substantive hearing be heard together. Before dealing with Greenpeace 1, it is appropriate for me to set out the well-known provisions which govern this subject. Order 53 r4(1) of the Rules of the Supreme Court provides:

"An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court consider that there is good reason for extending the period within which application shall be made."

In addition, section 31(6) of the Supreme Court Act 1981 provides:

"Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant-

(a) leave for the making of the application; or

(b) any relief sought on the application, if it considers that the granting of the leave sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration."

In both provisions, "leave" now reads "permission"

In Greenpeace 1 the more material dates were as follows:

30 October 1994: the date when the 1994 Regulations came in force;

31 March 1995:

the date when the Secretary of State sent a draft list of sites as candidates for SACs to consultees, including Greenpeace, there being none on the list outside territorial waters;

21 November 1995:

the date of the announcement giving details of the 275 blocks which were to be offered for licensing in the Seventeenth Round;

24 December 1996:

the date of the notice in the Official Journal inviting applications for licences in the Seventeenth Round, with a clear indication of the blocks which might be licensed;

7 April 1997:

the date on which licences were granted;

30 June 1997:

the date of the application for leave to move for judicial review.

Laws J. held that there was ample evidence to merit a challenge from 21 November 1995, that Greenpeace had not made their application promptly and that there was no contervailing public interest which justify allowing Greenpeace to proceed despite the failure to apply promptly.

At this stage it is appropriate to refer to some of the reasoning of Laws J. By way of introduction, he stated (at p.422):

"It is, I think , beyond contest that the decision of 7 April 1997 is a distinct executive act susceptible in principle to the judicial review jurisdiction."

Then (at p. 424):

"........a judicial review applicant must move against the substantive act or decision which is the real basis of his complaint. If, after that act has been done, he takes no steps but merely waits until something consequential and dependant upon it takes place and then challenges that, he runs the risk of being put out of court for being too late....The judicial review court, being primarily concerned with maintenance of the rule of law by the imposition of objective legal standards upon the conduct of public bodies, has to adopt a flexible but principled approach to its own jurisdiction.....[The Court] in its discretion....will impose a strict discipline in proceedings before it. The rule of law is not threatened, but strengthened by such a discipline."

These are all statements of general principle which are beyond dispute.

Laws J. then identified Greenpeace as "a public interest plaintiff" and added that "in my judgment delay will be tolerated much less readily in public interest litigation".

Adverting to the chronology, Laws J. rejected the suggestion that Greenpeace should have made their application in 1994 when the Regulations came into force. He said (at p. 426-7):

"they are not in my judgment to be put out of court for failure to challenge the implementing Regulations.....No doubt the applicants might have sought relief in 1994 for certiorari to quash the Regulations, or for a declaration. But such an application would in reality have been made in a vacuum......And although there was some very generalised information available as to the broad likely whereabouts of the blocks which would form the tranches to be offered for licensing.....,there was nothing remotely amounting to hard facts such as should reasonably have alerted the applicants to the possibility that forthcoming operations on the Atlantic Frontier might constitute a specific threat to specific habitats which would or might require the protection offered by the Directive."

He considered that a bare challenge asserting that the Regulation had not properly transposed the Directive, with no or tenuous evidence as to the whereabouts of likely SACs or as to the likely impact of particular operations or relevant habitats, might have been held to be premature and theoretical. Something:

"a good deal more specific in the way of a potential threat posed by the limited scope of the Regulations must have arisen before the applicants’ duty, not least as a public interest plaintiff, to come to court promptly would be engaged." (p.427)

Turning to 31 March 1995 (the date when it became apparent to "any informed reader" that the Government had no intention of nominating sites outside territorial waters), Laws J. again found in favour of Greenpeace, saying (at p.428):

"I consider that they were entitled to wait before approaching the court at least until it was plain what blocks in the UKCS were to be offered for licensing in the 17th round. Only then would they know precisely what areas in the Atlantic Frontier would be exposed to the possible grant of licences to the oil companies."

He considered that 21 November 1995 was "the earliest date when it was known as a matter of hard fact what blocks would be put out for licensing" (p.429). The Secretary of State identified 275 blocks, divided into 68 tranches, of which the great majority lay within the UKCS.

In the event, Laws J. accepted that 21 November 1995 was the date that "started the judicial review clock". He rejected the contention of Greenpeace that time only ran from the actual award of licences on 7 April 1997. He considered the submission that only then could Greenpeace reasonably gather evidence to be "unreal" and added (at p.432):

" It was clear well before 7 April 1997 that the Government would not apply the Habitats Directive, but would licence blocks in the 17th round, to and on the UKCS"

Thus, the time between the "starting of the judicial clock" and the lodging of the application was some seventeen months and it was inevitable that Laws J. would conclude that Greenpeace had not acted promptly.

I return now to the present case. Mr. Pleming submits as follows:

(1) This time the Secretary of State has not yet made a decision about the award of licences and has not yet indicated in respect of which precise areas he will be inviting applications. He has only indicated the general area within which applications will be invited and, even then, one potentially significant area - the "White Zone" - has recently been added. In other words, we are not yet at the stage which was found to be critical in Greenpeace 1.

(2) Laws J. was right to reject the date of the coming into force of the Regulations as the time at which Greenpeace ought to have started to act.

(3) Greenpeace is not concerned solely with the way in which the requirements of the Habitats Directive have been transposed. It is also concerned with the environmental consequences of decisions premised on an unlawful transposition. Accordingly, the grounds of challenge only become complete when Greenpeace is in a position to show both unlawful transposition and some potentially significant environmental consequence of a decision premised upon that transformation

(4) This is a new challenge to a new decision in a new round and the same precision is required this time in relation to this challenge as Laws J. held was required in relation to the Seventeenth Round.

(5) The fact that the previous challenge failed cannot, of itself, prevent Greenpeace from bringing a fresh challenge in relation to a later round.

(6) (a matter of little interest in view of my ruling on Article 12) An application in relation to cetaceans was not possible until after the evidence of the Moscrop/Swift report in March 1999, before which it was believed that the current guidelines provided adequate protection.

(7) In one sense the clock identified by Laws J. has not yet started to tick because the precise areas for the Nineteenth Round have not yet been identified. However, the present application is not unlawfully premature. It was commenced at an acceptable time and, by inference, before any of the difficulties adverted to by the Secretary of State and the Oil Companies intensified.

(8) 30 July 1997 - the date of the announcement of the Forward Programme - did not relate to a "substantive act or decision" giving rise to a ground of challenge. The announcement was of "outline plans" only and there was and is no precision as to areas - certainly not enough to fall foul of what Laws J. had held in Greenpeace 1.

(9) It would have been irresponsible for Greenpeace to have even contemplated this application before the result of Greenpeace 1 was known (i.e. October 1997).

(10) Although the present application was lodged in April 1999, it was preceded by a letter before action dated 16 December 1998, which referred to a possible application after further evidence (albeit limited to cetaceans) was to hand.

(11) Laws J. went too far in dealing with the responsibilities and obligations of public interest litigants.

(12) The present application was made "promptly", not by reference to a specific date which caused the judicial review clock to start ticking because, in the event, such a date would only arise, consistently with Greenpeace 1, when the specific blocks and tranches are defined with precision and that is yet to happen. The promptness which has been achieved relates to all the circumstances of the case and, as Laws J. said (at p. 430):

"we are long past the stage when judicial review bites only on a distinct executive decision itself having direct consequences upon affected persons’ rights."

Miss Sharpston puts the case for the Secretary of State on the issue of delay as follows:

(1) So far as lophelia pertusa is concerned, the present application is little more than a repeat of Greenpeace 1, a "second bite at the cherry".

(2) Most of the evidence and material upon which Greenpeace relies has been within its knowledge for some time and the application could have been made far earlier.

(3) Greenpeace should be treated in the same way as any other public interest applicant for judicial review. In Greenpeace 1 Laws J. correctly identified the reasons for applying the requirement of promptness with relative strictness.

(4) Other avenues of redress are not precluded. It is still open to the Commission to commence proceedings under Article 226 (formerly Article 169) of the EC Treaty. The Commission has already brought proceedings against some other Member States for failure to comply with their obligations properly to implement the Habitats Directive. The Commission is in a better position to take action against a group of Member States if it is of the view that they have failed to implement the Directive to its full territorial extent.

(5) Whilst Greenpeace is not precluded in principle from bringing separate challenges which are specific to different licensing rounds, in the present application it is simply seeking to relitigate, as the central tenet of its case, matters which it brought (late) before the Court in 1997.

(6) It is far fetched for Greenpeace to suggest that they are barred forever from the doors of the Court in relation to the Habitats Directive. But here they are seeking to raise issues which have either been raised before or are being raised too late. This is contrary to the principles of legal certainty and finality in litigation.

(7) The European Court of Justice has made it abundantly clear that the setting of reasonable limitation periods is compatible with Community Law. The effect of several earlier judgments is summarised in Levez v. TH Jennings (Harlow Pools) Ltd [1999] All ER (EC)1, 18. Examples of the application of these principles at a domestic level include Preston v. Wolverhampton Health Care NHS Trust [1997] Eu LR 386 and Johnston v. The Chief Constable of the Royal Ulster Constabulary [1998] NI 188.

(8) There is no question of Greenpeace being denied access to the court or deprived of a fair hearing or an effective remedy within the meaning of Article 6 or Article 13 of the European Convention on Human Rights, as Mr Pleming submits. They have locus standi and have had access to the Court but they have applied too late and there is a margin of appreciation in determining limitation periods: Stubbings v. United Kingdom [1997] 1 FLR 105.

(9) Applying all those principles to the facts of this case:

(i) the central issue - the geographical scope of the Habitats Directive - remains unchanged from Greenpeace 1;

(ii) the reef-forming nature of lophelia pertusa has been known since 1997;

(iii) Greenpeace has had most of its evidence about cetaceans for a considerable time.

(10) In all the circumstances, it is far too late for Greenpeace to bring this application.

On behalf of the Oil Companies, Mr. Ouseley associated himself with Miss Sharpston’s submissions and added to or reformulated them from the perspective of the Oil Companies. He emphasised the need for the utmost promptness where third party interests are involved: see R v. Independent Television Commission ex parte TV NI Ltd., The Times, 30 December 1991 (CA). He submitted that in relation to the present application time began to run on 31 March 1995 (the date when the Secretary of State submitted the draft list of SACs). Although Laws J. rejected that date in Greenpeace 1, that was because Greenpeace was submitting that it needed to know which blocks were on offer before presenting its case. In the present case the application is being made without knowledge of the location of the blocks to be included in the Nineteenth Round. Alternatively, says Mr. Ouseley, the very latest point at which time began to run was 30 July 1997. He also sought to derive comfort from the fact that neither in the Form 86A nor in submissions had Greenpeace identified a date from which time ran. He described Greenpeace’s arguments as not particular to the individual circumstances of certain licences or areas, but entirely general within the UKCS and equally applicable wherever licences were to be granted.

The arguments about delay in the present case require particularly careful consideration. I have come to the following conclusions.

(1) Just as Laws J. considered that the award of licences in the Seventeenth Round was "a distinct executive act susceptible in principle to the judicial review jurisdiction" (p.422), notwithstanding the previous history, so, in my judgment, are relevant events in relation to the Nineteenth Round susceptible to that jurisdiction.

(2) The mere fact that Greenpeace made an unsuccessful application which was defeated on grounds of delay but without full consideration of the merits in relation to the Seventeenth Round is not in itself a bar to their making another application in relation to a later round. The notion of "a second bite at the cherry" or other language more redolent of abuse of process is not appropriate in relation to the present application.

(3) The requirement of promptness is indeed accentuated when third party interests are involved, but in my judgment it is necessary to exercise great care when invited to apply the principle "with special force" in proceedings brought by a public interest litigant (Laws J. at p. 425). One informed commentator on Greenpeace 1 (Forsyth, All Litigants are Not Equal: Delay and the Public Interest Litigant [1998] JR 8, 10) has referred to this aspect of the judgment of Laws J. as "the most novel aspect of this decision", adding that "it is unfortunate that [he] does not identify with any clarity the juristic basis of the singling out of public interest litigants" and describing a special obligation of promptness as "a functional restriction on the generous rules of standing previously granted to public interest applicants". The very nature of cases such as these is such that the court will always be concerned to ensure that an applicant, whether of a public interest kind or not, has applied with appropriate promptitude, having regard to all the circumstances of the case, including the implications for third parties. However, in my judgment it is necessary to avoid creating too high or early hurdle. The precipitation of premature applications on incomplete evidence is hardly desirable. I do not suppose for a moment that Laws J. was intending to fix public interest applicants with insurmountable hurdles or to provoke them into ill-advised hyperactivity. The subjective circumstances of the applicant are, of course, part of "the circumstances of the case" but, for my part, I cannot envisage many cases where, on the same facts, a public interest applicant would be refused permission to apply because of delay but a private applicant would be permitted to proceed.

(4) As regards starting points of the coming into force of the 1994 Regulations or the publication of the list of potential SACs (31 March 1995), I reject these for the same reasons for which Laws J. rejected them in Greenpeace 1.

(5) What about 30 July 1997, the date upon which the Forward Programme, including plans for the Nineteenth Round, was announced? Greenpeace could not reasonably be expected to have applied at that time as leave to apply in Greenpeace 1 had not yet been determined. The judgment of Laws J. was given on 14 October 1997. On any basis it would have been inappropriate to launch the present application before then. The case for Greenpeace is that the announcement of 30 July 1997 was not a substantive act or decision giving rise to grounds for an application. It related only to "outline plans" with considerable imprecision as to areas and dates. In the sequence of events leading to the Nineteenth Round it fell well short of the crucial date found by Laws J. in relation to the Seventeenth Round. Even now, events have not reached the sequential point which was held to be crucial in Greenpeace 1, viz. the date "when it was known as a matter of hard fact" which blocks were to be put out for licensing. Mr. Pleming also relied on the date when scientific evidence in relation to cetaceans reached sufficiency which he put at March 1999 when the Moscrop/Swift report was received. However, in view of the conclusions I have reached about Article 12 it would be wrong for me to give much weight, if any, to the cetaceans part of this application. Nor do I consider that Greenpeace needed to wait until April 1999 as far as lophelia pertusa was concerned - after all they had had sufficient evidence for a case which was conceded to be arguable when limited to lophelia pertusa in 1997. It is inherent in Greenpeace’s own case that there is no specific date or decision in respect of which they are now seeking declaratory relief (and not, it is emphasised, certiorari). It is submitted on behalf of the Secretary of State and the Oil Companies that the present case is either one of delay or prematurity. So far as prematurity is concerned, it is important to see the present case in context. If Greenpeace is right, then (1) the 1994 Regulations were and are an unlawful transposition of the Habitats Directive; (2) the Secretary of State erred in failing to have regard to potential SACs on and above the UKCS in May 1995; (3) there was a clear even if not detailed proposal to infringe the Habitats Directive by ignoring it in the announcement of 30 July 1997; and (4) it was appropriate to make the present application ahead of the detailed identification of the blocks in respect of the Nineteenth Round because, having regard to the entire history, to wait until the next stage would be to risk criticism and failure for unjustifiable delay during which there would be prolonged uncertainty and prejudice to third parties. Accordingly, it is said, this is one of those cases in which it is appropriate to move ahead of an anticipated decision. In principle I agree with this analysis. I believe it to be consistent with the "flexible but principled approach to our jurisdiction" which Laws J. commended in Greenpeace 1 (at p. 424). However, although it was, in my judgment, right for Greenpeace to apply without waiting for the next stage (the identification of the blocks), the question remains as to whether they applied promptly within the present stage, which in my view ran from very shortly after Laws J. gave judgment in October 1997. I am driven to the conclusion that they have not satisfied the requirement of promptness in this regard. The present application, minus the cetaceans aspect upon which Greenpeace have failed, could have been commenced in early 1998 and would have had to have been so commenced if it was to be prompt. I accept that knowledge about lophelia pertusa continued and continues to increase after that time, not least as a result of the AMES survey later that year, but in my judgment for the purposes of this application it is a quantitative rather than a qualitative increase. Even if I am wrong about that, I am quite sure that time had run its course, both as regards promptness and the outer limit of three months, significantly before 1 April 1999. Accordingly, this was not a timely application.

(4) I therefore have to consider whether this is an appropriate case for extending time. In applying Order 53, r. 4(1) and section 31 (6) of the Supreme Court Act 1981, the material questions are those posed by Laws J. in Greenpeace 1 and I adopt them as sub-headings here.

(i) Is there a reasonable objective excuse for applying late?

I remind myself that, whatever the delay, Greenpeace have applied, appropriately, at an earlier stage in the sequence of events than on the last occasion. However, as I have already indicated, they could and should have applied sooner within that stage and, in my judgment, there is not a reasonable objective excuse for their failure to do so.

(ii) What, if any, is the damage, in terms of hardship or prejudice to third party rights and detriment to good administration, which would be occasioned if permission were now granted?

Because the present application was commenced at an earlier stage in the sequence of events, the hardship and detriment in the present case are not as great as in Greenpeace 1. There, the evidence of expenditure by the Oil Companies was more specific and the evidence of contractual arrangements was more advanced as they were bound to be when the licences had already been awarded prior to the commencement of the application. Moreover, in the present case it had been known for some time that, quite apart from a further challenge in this court by way of an application for judicial review, Greenpeace had complained to the Commission on 11 June 1998 about the territorial scope of the 1994 Regulations. The Commission has yet to indicate whether it will take the United Kingdom to the European Court of Justice pursuant to Article 226 of the EC Treaty but the Secretary of State and, indirectly, the Oil Companies, have been aware of a potential challenge since that time and any increased activity or expenditure since then has been undertaken with knowledge of the risk. I should add that the stance of the Commission can be perceived in two documents: first, a letter to Greenpeace dated 18 November 1998 (see above) which goes a considerable way towards agreeing with Greenpeace’s main contentions; but, secondly, an earlier communication dated 22 October 1996 which encourages the use of courts in Member States for the enforcement of Community environmental measures.

The Oil Companies have provided evidence in this application of significant expenditure, although I consider there to be force in Mr. Pleming’s submission that it is unclear as to precisely when it was incurred and as to the extent to which it relates wholly to the Nineteenth Round. It is also submitted by Mr. Ouseley that, although Greenpeace is only seeking declaratory relief in relation to the Nineteenth Round, if it were granted it would have implications in respect of existing licences awarded under earlier rounds, for example in connection with requirements for well consents before drilling can take place. Whilst Greenpeace say that they will not seek to reopen earlier licences, others may do so. However, in my judgment it would be very unlikely that they could do so successfully. It is not only Greenpeace to whom the duty to apply promptly applies.

It is also important for me to have regard to the foreseeable consequences of extending time and, if appropriate, granting relief. It would not prevent the awarding of licences in the Nineteenth Round. It would have the effect of requiring the Government to take account of requirements of the Habitats Directive before doing so and, in particular, of considering the possibility of proposing that there might be potential SACs in the area, once it is more clearly identified. This would probably slow down the award of licences but it does not mean that it would undermine the whole of the Nineteenth Round or the Forward Programme.

If follows from what I have said that I assess the prejudice to the Oil Companies and others to be significantly less and the implications for good administration to be less damaging in the present case than was so in Greenpeace 1,

(iii) In any event, does the public interest require that the application should be permitted to proceed

Laws J. resolved the two previous questions and this third one against Greenpeace, observing that "the public interest decisively required this challenge to be brought much earlier" (at p.441). However, there are two important differences between Greenpeace 1 and the present case. First, the present application has been brought at a much earlier stage in the sequence of events. Secondly, Laws J. did not have the advantage of hearing full submissions on the merits. This time, as a result of the order of Jowitt J. that the application for permission and the substantive application be heard together, and because of the way in which the parties have co-operated in the preparation and presentation of the case, I have heard full submissions on the merits. What is more, I have concluded that it is not merely arguable but plain that Greenpeace are right about the central substantive issue in the case, the geographical scope of the Habitats Directive. I have also concluded that they are right about lophelia pertusa, albeit not about Article 12 in respect of cetaceans. In other words, they have not ended up in a factual vacuum. It is common ground that I should have regard to the merits when assessing the public interest.

In my judgment, the finding that, in these circumstances, the 1994 Regulations were and are not a complete and lawful implementation of the Habitats |Directive is a matter of substantial public importance, as is the fact that the approach of the Secretary of State to the Habitats Directive, i.e. his failure to consider it in the licensing process, is legally erroneous. The answer of the Secretary of State and the Oil Companies is to say that I should have regard to and take comfort from the other national and international obligations and standards which underpin environmental protection in this area. However, I do not consider that to do so detracts from the public interest in compliance with the Habitats Directive itself.

In my judgment, notwithstanding the lack of promptness which I have identified, this is a case in which the public interest balance comes down in favour of extending time and permitting the application to be made. Indeed, having had to construe the Habitats Directive on the basis of full submissions and having come to a clear view about it, to refuse permission would leave the matter in a somewhat unsatisfactory state.

Conclusions

It follows from what I have said that I grant permission to apply for judicial review. To the extent that I have indicated, I find that the challenge succeeds. As to relief, I propose to make declaration in the form of the first one sought, namely a declaration that the Habitats Directive applies to the UKCS and to the superjacent waters up to a limit of 200 nautical miles from the baseline from which the territorial sea is measured.

At certain stages during submissions, it was suggested that I might find myself in the position where I should consider referring one or more issues to the European Court of Justice for a ruling. Suffice it to say that I do not find myself in such a position. Also, Mr. Ouseley raised so as to keep open an argument that the Habitats Directive does not have direct effect and so is not justiciable at the suit of Greenpeace. The Secretary of State expressly dissociates himself from such an argument and rightly so. I have no doubt that, on the authorities, the Directive does have direct effect: see Associazone Italiana per il World Wildlife Fund v. Regione Veneto [1996] ECR I-1233; Regina v. Secretary of State for the Environment, ex parte Royal Society for the Protection of Birds [1995] JPL 842; World Wildlife Fund v. Autonome Provinz Bozen, The Times, 12 October 1999 (ECJ).

MR PLEMING: On behalf of Greenpeace, could I respectfully ask not only for an order in the terms of your Lordship's judgment including the permission and the declaration, which is the first declaration in the form 86 A, but to invite your Lordship to consider an additional second declaration which flows from your Lordship's conclusions and paragraph 49.3 of the Secretary of State's skeleton argument that your Lordship may or may not recall, where it was accepted by the Secretary of State that he had not considered the impact of the Habitats Directive in the grant of licences pursuant to the Nineteenth Round.

MR JUSTICE MAURICE KAY: Yes.

MR PLEMING: My Lord, to turn your Lordship's judgment and that concession into a declaration, could I invite your Lordship to say that the declaration in these terms would be suitable. My Lord, the drafting may be the subject of agreement between the parties but it is a principle I wish to put before your Lordship. The Secretary of State cannot lawfully decide whether or not to grant licensing for the Nineteenth Round for the offshore licensing laws without first considering and applying the provisions of the Habitats Directive 92/43 EEC.

My Lord, that is the only additional relief by way of declaration which is sought by Greenpeace. The second head of relief is costs and costs against the first respondent, the Secretary of State.

MR JUSTICE MAURICE KAY: Does the declaration which you seek add anything? It certainly overlaps with the declaration that I have indicated but does it in fact add to it?

MR PLEMING: It makes it specific in relation to the Nineteenth Round and reflects into a Court order the concessions of paragraph 49/52, that is the only reason we seek to introduce it. Your Lordship will have noted that 49/3 then goes on -- sorry, the following paragraphs expressed some concern if the declaration is too precise, as we have earlier formulated, that this is a far more general declaration. My Lord, that is the only reason. The second is for an order of costs against the Secretary of State.

MR JUSTICE MAURICE KAY: Thank you. Ms Sharpston?

MS SHARPSTON: My Lord, as far as the second declaration which my learned friend Mr Pleming seeks, I would oppose the necessity of making that declaration. As your Lordship has rightly said, it does overlap to a considerable extent with the first declaration which is one we have conceded to necessarily follow, if your Lordship is against us as you have been in terms of scope. That second declaration is an unnecessary one. Your Lordship has refrained in your Lordship's judgment from indicating, and rightly so, in my submission, from indicating specific positive steps that would have to be taken. It is sufficient, in my submission, that the Secretary of State should consider, as clearly he will, the implications of your Lordship's judgment and if your Lordship grants the first declaration sought.

As far as costs is concerned, clearly I cannot resist that but I do have an application to make which I imagine will not surprise your Lordship in the least, namely that I do seek permission for an appeal. I seek that on the basis that the issue of territorial scope of the Habitats Directive is a very major one, without intending the least disrespect to the judgment which your Lordship has just handed down, in my submission it is a point of central importance that the respondent Secretary of State ought to be granted permission to seek to have it ruled by the Court of Appeal.

MR JUSTICE MAURICE KAY: Is your application for permission to appeal limited to that part of the judgment?

MS SHARPSTON: My Lord, it may be, I know not, that there are points of detail in your Lordship's ruling. One point in my notes -- and I do not have instructions for obvious reasons -- but it may be that the Secretary of State wished to say that your Lordship perhaps erred in saying that oil exploration activities would be at least likely to have an adverse effect. I say that, I would not wish to be limited in my application for permission to the territorial issue but clearly, my Lord, it is that issue which is of central importance.

MR JUSTICE MAURICE KAY: Thank you.

MR MALEK: My Lord, as regards the declaration, I support Mr Pleming. The second declaration is necessary to make it sure you are only talking about the Nineteenth Round and your judgment does not affect well consents under the earlier Rounds which is, of course, of crucial importance to the oil companies. As regards costs, there is no question of costs with us at this stage.

MR JUSTICE MAURICE KAY: None are being sought.

MR MALEK: As regards an application to appeal, we would seek the permission to appeal on exactly the same grounds as Ms Sharpston but confining it to the scope of the Habitats Directive.

MS SHARPSTON: My Lord, I am sorry, I anticipated my instructions and also I am told my instructions on costs are not as I thought.

My Lord, I make two alternative submissions on costs. The first is there should be no order on costs. The second is that it is clear from the judgment that, whilst your Lordship was against us on territoriality and briefly on the two issues, by the same token your Lordship was in our favour as regards cetaceans. In those circumstances your Lordship may feel it right that the costs should be split between the issues. Those are my instructions.

MR JUSTICE MAURICE KAY: Thank you. I shall add a second declaration in the form that you seek. You may have your costs against the Secretary of State. The Secretary of State and the oil companies may have permission to appeal on the issue of geographical scope. If they want to appeal on any further matters they will have to seek the permission of the Court of Appeal. I grant them permission in relation to geographical scope because of the importance of the subject.

MR PLEMING: My Lord, before your Lordship rises, may I reserve Greenpeace's position in relation to leave to appeal in relation to Article 12? We would like to give detailed consideration to your Lordship's judgment and may I return to your Lordship or write to your Lordship, if we may, on that topic?

MR JUSTICE MAURICE KAY: Yes. I shall be on circuit from Monday but I would be prepared to deal with it at least in the first instance on paper, if you wish to make submissions about that, or other ancillary matters that may occur to anybody. Anything else?

MR PLEMING: No, my Lord.

MR JUSTICE MAURICE KAY: Could I thank you all very much for your contribution to this case.