Isle of Anglesey and Others v The Welsh Ministers and Others

CourtQueen's Bench Division
Docket NumberClaim No: HQ07X01101
JudgeMr Justice Davis
Judgment Date06 May 2008
JurisdictionEngland & Wales
Neutral Citation[2008] EWHC 921 (QB)

[2008] EWHC 921 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(Sitting in Caernarfon County Court)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

THE HONOURABLE MR JUSTICE DAVIS

Claim No: HQ07X01101

Between:
(1) Isle Of Anglesey County Council
(2) Crown Estate Commissioners
and
(1) The Welsh Ministers
(2) North Western And North Wales Sea Fisheries Committee
(3) Andrew Wilson
(4) Extramussel Limited
Defendants

Mr John Howell QC and Miss Emma Dixon (instructed by Alan Carr) for the Claimants

Mr Clive Lewis QC (instructed by Treasury Solicitors) for the First Defendants

Mr Guy Fetherstonhaugh QC and Mr James Segan (instructed by Andrew M Jackson) for the Second, Third and Fourth Defendants

Approved Judgment

Mr Justice Davis

Mr Justice Davis:

Introduction

1

This case relates to an oyster and mussel fishery in the eastern Menai Strait. The fishery extends over some 1928 acres (761 hectares). The claimants between them are the legal owners of the foreshore and seabed which is included in the fishery. The claimants – subject to obtaining the necessary planning and other statutory consents – wish to see constructed a marina on their land. The proposed marina site would extend to some 10 hectares: of which some 7 hectares would be within the fishery.

2

The fishery in question was created (or purportedly created) for a 60 year term by the Menai Strait Oyster and Mussel Fishery Order 1962 (“the 1962 Order”). The 1962 Order was made (or purportedly made) under the powers conferred by the Sea Fisheries Act 1868 (“the 1868 Act”) by the Minister of Agriculture, Fisheries and Food, whose successors for these purposes are the Welsh Ministers, the first defendants in these proceedings. The grantees under the 1962 Order were the Local Sea Fisheries Joint Committee for the Lancashire and Western Sea Fisheries District, whose successors are the North Western and North Wales Sea Fisheries Committee, the second defendants in these proceedings. As contemplated by the 1962 Order itself, the Committee did not itself exercise the fishery rights. Instead it permitted others to do so, on a commercial basis, dividing the fishery up into 6 areas for that purpose. Two of such areas are currently leased by the third and fourth defendants, Andrew Wilson and Extra Mussel Limited.

3

The second, third and fourth defendants strongly oppose the proposed marina development. They consider that it will gravely prejudice the viability of the mussel fishery (oysters, in practice, being of no significance). Many of the disputes raised have been, and perhaps will continue to be, the subject of debate and decision elsewhere: in the context of planning and other statutory consents needed. But the present proceedings raise even more fundamental issues. The claimants say that, subject to obtaining all the necessary statutory consents, they have the legal right to construct such marina and the defendants have no legal basis for disputing that. The second, third and fourth defendants, on the other hand, say that the claimants, and irrespective of whether or not they can obtain planning and other statutory consents, have no legal right to construct such marina so as to interfere with the fishery.

4

The actual issues argued before me were, in summary, these:-

4.1

Whether the 1962 Order was invalid and ultra vires (that is to say, not lawfully sanctioned by the 1868 Act). The claimants say that it was. All the defendants say that it was not.

4.2

If the 1962 Order was not ultra vires, whether the conferred fishery right was made effectually subject to the claimants' asserted rights as landowners to build the marina by reason of Articles 16 and 18 of the 1962 Order. The claimants say that it was. The second, third and fourth defendants say that it was not.

4.3

Whether the construction of such marina would be illegal and contrary to section 7 of the Sea Fisheries (Shell Fish) Act 1967. The claimants say that it would not be. The second, third and fourth defendants say that it would be.

5

The points raised are both interesting and important: important certainly to the parties but, as appeared from the arguments before me, potentially having wider implications also. It has to be said that the issues raised in some respects were somewhat arcane and in all respects were complex. They involved a wide-ranging examination of the law relating to fisheries and of the statutory provisions in question. Although the lengthy written arguments initially put in by some of the parties variously condemned the opposing arguments as “unarguable”, “misconceived” and so on such protestations had become increasingly muted by the third day of the very closely argued hearing before me: as also had the initial suggestions to the effect that the provisions of the 1868 Act and 1962 Order were “totally clear” in favour of any particular argument being advanced by any particular advocate at the time.

6

The claimants were represented at the trial by Mr John Howell QC and Miss Emma Dixon. The first defendants were represented by Mr Clive Lewis QC. The second, third and fourth defendants were represented by Mr Guy Fetherstonhaugh QC and Mr James Segan. I would like to acknowledge the care and skill with which the respective cases were prepared and advanced by counsel and solicitors acting for each of the parties.

7

These proceedings were initially issued in the High Court, Queen's Bench Division, in London on 3 April 200By that time, judicial review proceedings had already been instituted in the Administrative Court in London by Mr Wilson and Extramussel Limited, along with the lessees of the other areas in the fishery (Deepdock Limited, Myti Mussels Limited and Ogwen Mussel Limited) on 7 July 2006. Those proceedings sought to challenge by way of judicial review a decision communicated by letter dated 11 April 2006 from the Welsh Minister for the Environment, Planning and Countryside granting a licence to the Anglesey Boat Company Limited, the prospective developer of the marina, to deposit material in the sea pursuant to section 5 of the Food and Environment Protection Act 1985. The two sets of proceedings were due to be heard together. In the event those judicial review proceedings have subsequently, and by consent, been withdrawn on the footing that the matter had become academic as the licence was due shortly to expire and that the Minister had indicated that a fresh application for a licence would be needed. In the meantime, of course, necessarily no development works in connection with the marina have yet started.

8

Notwithstanding that both sets of proceedings were issued in London, the trial took place in Caernarfon. This was in consequence of an order made by HHJ Hickinbottom (then Designated Civil Judge for Wales in Cardiff and sitting as a Judge of the High Court) on 3 October 2007. That decision was a salutary one: the reasoned judgment dated 30 October 2007 in my view deserves notice. Quite apart from the fact that this case, which is replete with local issues, has generated a significant amount of interest to people in Anglesey and North West Wales, a hearing in North West Wales has achieved a practical reality of access to local justice. I might also add that a consequence of the hearing taking place in Caernarfon was that I was invited by the parties to view the area in question (on a modern mussel dredger): a view which I found both interesting and helpful.

Factual Background

9

The issues raised before me were almost entirely legal. No oral evidence was adduced before me, there was no cross examination and I was not asked to resolve any factual disputes where evidence conflicted. Moreover, the extensive witness statements put in before me were to a significant extent directed at the issues arising in the (now withdrawn) judicial review proceedings.

10

Further, an amount of such evidence understandably relates to what may be called the wider issues arising for the purposes of the statutory consents which would be a precondition for the proposed development – whether under the planning legislation, under the Food and Environment Protection Act 1985 or under the Coast Protection Act 1949. It is easy to envisage that there will be people, over and above the mussel fishermen, who will be opposed to the prospective marina development on environmental, aesthetic or other grounds. Likewise, there will be those, over and above the land owners and developers, who will support the prospective marina development on economic and other grounds. It is no function of this judgment to enter that debate, let alone to reach conclusions on it.

11

Nevertheless, in order to give context to the 1962 Order and the issues in this litigation it is necessary to set out some of the background.

12

The proposal to construct the marina in question was first made by Anglesey Boat Company Limited early in 1998. That company operates a boatyard at Gallows Point, near the attractive town of Beaumaris on Anglesey. The marina was proposed to be constructed over an area of some 10 hectares, mostly to the west of Gallows Point. The coastline there is for the most part quite well wooded to close up to the shore-line fronting the Menai Strait: albeit with some development (including the boatyard) on the point itself. A road runs quite close to the shore line. Viewed from the strait it is an attractive area, although by no means wild or secluded. The view back to the south from the strait towards Snowdonia can be considered amongst the finest in the British Isles.

13

The Isle of Anglesey County Council (successor to the Beaumaris Corporation, among others) is the freehold owner of part of the foreshore at this point. The seabed forms part of the Crown Estate, but it has previously leased parts of the land relevant to the marina development to the Council. (Parts of the proposed marina, I...

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