2.

The proceedings before the national courts concern the exclusion from protection under the Birds Directive of some 22 hectares of the Lappel Bank, an area of intertidal mudflat which is geographically within the Medway Estuary and Marshes, on the North Coast of Kent. The following description of the factual background is taken from the judgment delivered by Lord Justice Hirst in the Court of Appeal on 18 August 1994: ‘The Medway Estuary and Marshes are wetlands of international importance for a range and substantial number of wildfowl and water species, which use them both as a breeding ground and as a wintering area, and also as a staging post during spring and autumn migrations. They also support nationally important breeding populations of avocets and little terns, both of which species are considered vulnerable and are listed in Annex I to the [Birds] Directive. The area as a whole thus falls unquestionably within the ambit of both Article 4(1) and of Article 4(2). The mudflats at Lappel Bank provide good quality feeding and sheltering grounds for a number of waders and waterfowl, including curlew, redshank, turnstone, dunlin, ringed plover, great plover ( 3 ) and shelduck, all of which are also present in significant numbers throughout the Medway Estuary and Marshes. None of these species is listed in Annex I to the Directive. However, Lappel Bank is also an important component of the overall eco-system of the designated SPA, and the loss of its inter-tidal area would probably result in a reduction in the overall wader and wildfowl populations of the Medway Estuary and Marshes. All the species present on Lappel Bank are present in larger numbers throughout the relevant area, and it is not suggested that Lappel Bank is necessary for the survival of any particular species: however... some species are represented proportionately in significantly greater numbers than elsewhere in the relevant area.... [The Port of Sheerness] enjoys both maritime and geographical advantages. Its principal natural attraction is its berthing facilities with naturally occurring deep water of 11 metres at any tide, which enables the Port to accommodate both small sea and deep sea vessels including traditional break bulk cargo ships. As one of the few ports in the South East of England offering such facilities, it has developed into a thriving commercial enterprise, and is now the fifth largest port in the UK for cargo and freight handling. Its seaward situation at the mouth of the Thames Estuary and close to the major North Sea and English Channel shipping routes, attracts considerable trade. Its landward situation, on the North Kent coast, which is an area scheduled for significant future development and within easy reach of the Channel Tunnel and the main markets of London and the South East, is also very favourable The port now plans to develop and expand, but physical expansion can only realistically be achieved by reclamation and development of Lappel Bank, seeing that to the north and west the port is bordered by the sea, and on the land side to the east expansion of the port is prevented by the proximity of the urban areas of the town of Sheerness, the railway and the A249 trunk road.’