Langton, R (On the Application Of) v Secretary Of State For Environment, Food And Rural Affairs & Anor

Factual and Procedural Background

Badger culling is employed as a method to prevent the spread of bovine tuberculosis ("bTB"), a serious animal health issue in England. Badgers can act as a wildlife reservoir for bTB, transmitting it to cattle. Historical protection of badgers is provided under the Badgers Act 1973 and the Protection of Badgers Act 1992, which allow for licences to be granted for killing badgers to prevent disease spread.

In 2011, the Secretary of State for Environment, Food and Rural Affairs ("the Secretary of State") adopted a policy permitting licensed badger culling under standard licences. The current judicial review concerns the 2017 policy introducing supplementary culling in areas where intensive culling had already taken place.

The Plaintiff, a scientist and ecological consultant with expertise in wildlife disease studies, challenges the 2017 guidance issued by the Secretary of State and the subsequent licences granted by Natural England, the delegated licensing authority. The challenges assert that the 2017 guidance was issued following an unlawful consultation and contrary to the Protection of Badgers Act 1992, and that Natural England's licence grants breached the assessment requirements of the Conservation of Habitats and Species Regulations 2010 ("the Habitats Regulations").

The judicial reviews were heard together, involving voluminous evidence, particularly regarding Natural England’s licensing decisions. Procedural difficulties arose due to late evidence and un-pleaded complaints, but the court addressed all matters raised.

Legal Issues Presented

1. Whether the 2017 consultation on supplementary badger culling complied with the procedural requirements for lawful consultation.
2. Whether the Secretary of State lawfully adopted a policy of supplementary badger culling under section 10(2)(a) of the Protection of Badgers Act 1992, having regard to the evidential basis for preventing the spread of bTB.
3. Whether Natural England lawfully granted badger culling licences in specific areas, having properly conducted assessments under the Habitats Regulations to exclude likely significant effects on protected sites.

Arguments of the Parties

Plaintiff's Arguments

• The 2016 consultation was unlawful as it failed to consult at a formative stage, instead assuming supplementary culling was appropriate without consulting on its principle or alternatives such as a "do nothing" approach.
• The consultation document was misleading, overstating the necessity and scientific basis for supplementary culling and failing to provide sufficient data on the impact of prior intensive culls.
• The Secretary of State failed to properly take into account consultation responses opposing the policy, including concerns about the lack of evidence and potential adverse effects.
• The Secretary of State’s decision to adopt supplementary culling lacked an adequate evidential basis to satisfy the statutory purpose of preventing the spread of disease under section 10(2)(a) of the Protection of Badgers Act 1992.
• Natural England’s licence decisions breached the Habitats Regulations by failing to properly assess or exclude significant effects, particularly relating to the risk of increased fox predation on protected bird populations and disturbance from culling operations.

Defendant's (Secretary of State and Natural England) Arguments

• The consultation complied with the statutory duty, being conducted at an advanced stage and allowing consultees to comment on the effectiveness and specifics of supplementary culling, including the option to oppose it.
• The consultation document, while not perfect, provided sufficient information and access to scientific reports to enable informed responses.
• The Secretary of State properly considered all consultation responses, including opposition, with no material factors unlawfully ignored.
• The policy of supplementary culling was adopted for the proper statutory purpose of preventing disease spread, supported by scientific and veterinary advisers, and was a rational extension of existing policy despite limited direct evidence.
• Natural England conducted lawful, precautionary Habitats Regulations Assessments ("HRAs") and concluded that the risk of significant effects on protected sites from fox predation and disturbance was low or absent, applying mitigation measures integral to the project.
• Even where assessments for some nearby protected sites were not formally recorded, it was highly likely the outcome would have been the same, and Natural England committed to monitoring and mitigation if evidence of adverse effects emerged.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first examined the consultation process on supplementary culling, applying established principles for lawful consultation. It found that the consultation was conducted at an appropriate stage, providing sufficient information and opportunity for consultees to comment on both the principle and specifics of supplementary culling, including opposing views. Although the consultation document contained some overstatements, it was not so misleading or unfair as to render the consultation unlawful. The court accepted that the Secretary of State properly considered all responses, including opposition and scientific concerns.

Regarding the Secretary of State's adoption of the supplementary culling policy under section 10(2)(a) of the Protection of Badgers Act 1992, the court held that the statutory purpose—preventing the spread of disease—was properly served by the policy. The decision was supported by scientific and veterinary advice, including from the chief scientific adviser and chief veterinary officer, who regarded supplementary culling as a logical and defensible progression of the existing policy. The scarcity of direct evidence was acknowledged, but the policy was rational and adaptable to new evidence.

On Natural England’s licence decisions, the court considered whether the Habitats Regulations assessments were lawfully conducted. It found that the assessments for the cull areas within protected sites were carried out using a precautionary and evidence-based approach, concluding that significant effects from fox predation or disturbance were unlikely. The court accepted Natural England’s expert evidence and monitoring assurances. Although the court identified shortcomings in formal assessment of nearby protected sites, it concluded that these did not render the decisions unlawful, as it was highly likely the outcome would have been the same had assessments been completed. The court also distinguished recent CJEU case law on mitigation measures, finding that licence conditions were integral project features rather than post hoc mitigation.

Holding and Implications

The court DISMISSED the claims for judicial review in their entirety.

The direct effect of this decision is to uphold the Secretary of State’s 2017 guidance on supplementary badger culling and Natural England’s subsequent licence grants. The court confirmed that the consultation process was lawful, the policy was adopted for a proper statutory purpose with a rational evidential basis, and that the relevant environmental assessments met legal standards. No new precedent was established; rather, the decision affirms established principles on consultation, statutory interpretation, and Habitats Regulations assessments in the context of wildlife disease control policy.