Armstrongs Aggregates Ltd v Natural England
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 28 July 2022 |
| Neutral Citation | [2022] EWHC 2009 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3604/2021 |
[2022] EWHC 2009 (Admin)
Mr Justice Fordham
Case No: CO/3604/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
SITTING IN MANCHESTER
James Burton (instructed by Browne Jacobson) for the Defendant
Christopher McNall (instructed by Fielden Marshall Glover Strutt) for the Claimant
Hearing date: 20.7.22
Judgment as delivered in open court at the hearing
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
Introduction
This case is about “procedural exclusivity”, delay and alternative remedies. The Claimant is the operator of a quarry (Shap Pink Quarry) in a designated Site of Special Scientific Interest (“SSSI”) where there are notified habitats. It has an extant, deemed planning permission (dated 12 June 2000). Its quarry is one to which the review of old minerals permissions (“ROMP”) regime of the Environment Act 1995 applies. By statutory “environmental damage” notices (“the ED Notices”) dated 11 June 2020 and 23 December 2020, issued pursuant to regulation 18 of the Environmental Damage (Prevention and Remediation) (England) Regulations 2015 SI 2015 No.810 (“the 2015 Regulations”), the Defendant has required proposals from the Claimant for the “remediation” of the permanent loss of notified habitats, the Defendant having assessed that “environmental damage” existed, which had been caused by the Claimant's operating activity. The Claimant has lodged appeals to the Secretary of State against the environmental damage notices, pursuant to regulation 19. The Claimant's appeal against the first ED notice was filed on 9 July 2020, a detailed statement of case in support of the appeal was filed on 1 December 2020 and the defendant's written response to the appeal was filed on 29 January 2021. The appeal against the second ED notice was filed in January 2021. The Claimant's detailed statement of case in support of that appeal was filed on 11 May 2021. The Defendant's written response to that appeal was filed on 5 July 2021. The two appeals were linked. Experts were instructed. Proofs of evidence were prepared. A joint site visit took place in September 2021. A four-day inquiry was fixed for 30 November 2021. The two appeals are pending.
The Part 8 Claim
Foreshadowed by a letter from the Claimant's new solicitors dated 11 October 2021, the Claimant issued a CPR Part 8 Claim on 25 October 2021. By that Claim, the Claimant seeks determination by the High Court of two questions (“the Two Questions”). It is that Part 8 Claim with which I am dealing. The Two Questions are questions of law. They are closely linked. They concern the position of any quarry within an SSSI, with an extant planning permission, and to which the ROMP regime is applicable (which I will call “a Qualifying Quarry”). In essence, the Two Questions ask whether a Qualifying Quarry can lawfully be the subject of any regulatory intervention by the Defendant pursuant to the 2015 Regulations, in light of A1P1 (the right to property) protected by the Human Rights Act 1998 (“ HRA”). The first question (i) is whether, in the light of A1P1 rights, the 2015 Regulations have any applicability to Qualifying Quarries. The second question (ii) is whether, in the light of A1P1 rights, it is unlawful to take action under the 2015 Regulations. I will call (i) ‘applicability’. I will call (ii) ‘invocability’. The Claimant's position is that the answers are (i) “no” or, alternatively, (ii) “yes”. In support of its position the Claimant relies, inter alia, on quarrying activities covered by an extant planning permission as “lawful economic activity”, whose curtailment would be compensatable under the ROMP regime. It says that regulatory intervention pursuant to the 2015 Regulations, without compensation, would breach A1P1 rights.
The Grounds of the Part 8 Claim refer to the statutory appeals. They acknowledge that the issues in the Part 8 claim arise out of the two statutory notices. They contend that the High Court has “jurisdiction” to deal with the Part 8 claim, that the High Court is the appropriate “forum” to do so, and that “stays” of the statutory appeals are appropriate pending the High Court's determination of the two questions of law. In the Part 8 Claim, the Two Questions unmistakeably arise out of the ED Notices viewed alongside the 2015 Regulations. The Part 8 Details of Claim say this:
13. The [ED] Notices and the 2015 Regulations, if valid, ostensibly create the situation where lawful and permitted activity can be terminated without the payment of any compensation which would otherwise be available under the ROMP provisions. … 19. The [ED] Notices, and the legislation under which they are purportedly given, are impermissible and unlawful derogations of the Claimant's rights under the Permissions, and is outside the proper margin of appreciation afforded to the Defendant under A1P1, and are contrary to A1P1 insofar as: 19.1 The Notices and/or the 2015 Regulations operate so as to deprive the Claimant of its public and private law rights, under the Permissions, to peacefully enjoy and exploit its property; 19.2 The Notices and/or the 2015 Regulations operate so as to deprive the Claimant of its public and private law rights, under the Permissions, to extract minerals up to the Extraction Boundary; 19.3 The 2015 Regulations contain no derogation for any activity conducted after 2009; 19.4 The 2015 Regulations conflict with the Permissions. 20. The Defendant, in the giving of the Notices, is acting incompatibly with the Claimant's A1P1 rights. 21. If, without prejudice to the foregoing, and contrary to the Claimant's case, the 2015 Regulations are valid and operate without modification in relation to all SSSIs, regardless of planning status and/or the existence of valid Permissions granted or deemed granted by the competent planning authority, and so as to render unlawful (as contrary to the 2015 Regulations, which carry criminal sanctions) then the 2015 Regulations are incompatible with the Claimant's A1P1 rights .
The Part 8 Claim seeks declaratory remedies. It also includes a claim for a “declaration of incompatibility” (“DOI”) pursuant to section 4 of the HRA. It is unclear to me how the remedy of a DOI could arise. The 2015 Regulations are “subordinate legislation”. Under the HRA, a DOI would only arise in the last resort where there is an incompatibility with a Convention right (here, A1P1) and where the primary legislation, pursuant to which the subordinate legislation was made, prevents removal of the incompatibility: see HRA s.4(4)(b). Neither Counsel was able to show me any “provision of primary legislation” which would “prevent removal of any incompatibility” between the 2015 Regulations and A1P1 rights, were such an incompatibility to arise. Mr Burton told me that the reach of the 2015 Regulations to SSSIs was not mandated by the Directive 2004/35/EC which was their origin. If compatibility could not be secured by reading and applying the 2015 Regulations alongside the Defendant's HRA section 6 duties, or by interpreting them in accordance with the HRA section 3 interpretative imperative, the conclusion would – as it seems to me – be a matter of invalidity, whether expressed in terms of a declaration or actioned by a quashing order. The Part 8 Claim does not – and could not – seek a quashing order, that being a judicial review remedy ( CPR 54.2).
Crystallisation
It is appropriate that I record here that the Defendant takes the firm position that, insofar as any issue arises under the 2015 Regulations relating to interference with Qualifying Quarry operators' A1P1 rights, it would not and could not arise in the context of regulation 18 ED Notices. The Defendant submits that a regulation 18 ED Notice does not involve an incursion or intrusion into economic activity. Rather, an ED Notice requires the submission of proposals, based on conclusions by the Defendant which are appealable on prescribed grounds (regulation 19). Only at the stage of a regulation 20 remediation notice, says the Defendant, could there be specified mandatory action by the operator with penal consequences for default. If there were an interference with A1P1 rights, that is when it would crystallise. Other provisions in the 2015 Regulations could be characterised as interferences in A1P1 rights: eg. a regulation 14 ‘stop notice’.
The Defendant's Applications
By an application issued on 23 November 2021, the Defendant asks the Court to rule that it has “no jurisdiction” or “should not exercise its jurisdiction”: see CPR Part 11. By an Order by HHJ Bird dated 25 November 2021 the Part 8 Claim was transferred to the Planning Court in Manchester and directions were made for the one-day hearing of the Defendant's application. By an amended application dated 27 May 2022 the Defendant asks the Court, in the further alternative, to strike out the Part 8 Claim: CPR 3.4(2). By an application dated 19 July 2022 the Defendant seeks an extension of time for the application issued on 23 November 2021, which was made ‘one day’ outside the prescribed 14 days after the Acknowledgement of Service: CPR 11(4)(a). I can deal here with extensions of time. So far as concerns the Defendant's application of 27 May 2022 to amend the application of 23 November 2021, I granted permission on 1 July 2022. I did so because ample opportunity had been given to the Claimant's representatives to respond. They had identified no prejudice. I could identify none. The Defendant's Summary of Reasons (8 November 2021) had referred to the intention to apply to “strike out”, but this had been omitted in error from the...
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