Isle of Anglesey and Others v The Welsh Ministers and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill |
| Judgment Date | 20 February 2009 |
| Neutral Citation | [2009] EWCA Civ 94 |
| Docket Number | Case No: A2/2008/1234 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 February 2009 |
[2009] EWCA Civ 94
Lord Justice Pill
Lord Justice Carnwath and
Lord Justice Lawrence Collins
Case No: A2/2008/1234
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEENS BENCH DIVISION, HIGH COURT
MR JUSTICE DAVIS
Royal Courts of Justice
Strand, London, WC2A 2LL
John Howell QC & Emma Dixon (instructed by Messrs Alan Carr) for the Appellants
Clive Lewis QC (instructed by Treasury Solicitor) for the 1 st Respondent
Guy Fetherstonhaugh QC & James Segan (instructed by Messrs. Andrew M Jackson) for the 2nd to 4th Respondents
Hearing dates : 25/26 November, 2008
Carnwath LJ:
Background
The claimants, whom I shall call respectively the Commissioners and the County Council, seek declarations to establish their right to build a marina on parts of the foreshore currently used for commercial mussel fishing.
Mussel fishing has become an important commercial activity in the eastern Menai Strait. The present fishery extends to some 1928 acres. The legal underpinning is found in the Menai Strait Oyster and Mussel Fishery Order 1962 (“the 1962 Order”), made under the Sea Fisheries Act 1868. That Act has been replaced by the Sea Fisheries (Shellfish) Act 1967 (“the 1967 Act”). The order granted fishery rights to the local Sea Fisheries Joint Committee, now the North Western and North Wales Sea Fisheries Committee (“the Committee”). The Committee does not itself exercise the fishery rights. Instead it has divided the fishery into 6 areas, for the purpose of granting “leases” on a commercial basis.
The declarations claimed are, first, that the 1962 Order was ultra vires and void ab initio; alternatively, that any rights enjoyed by the fishery interests under the Order are subject to the rights of the claimants to build on the Marina Land, and further that section 7(4) of the 1967 Act does not render it unlawful for it to do so.
Three main issues accordingly arise:—
i) Whether the 1962 Order was ultra vires the 1868 Act.
ii) If not, whether the claimants can rely on Articles 16 and 18 of the 1962 Order to override the fishing rights conferred by 1962 Order.
iii) Whether the construction of the marina would be illegal under section 7(4) of the 1967 Act.
Factual Background
The judgment contains a vivid picture of the geographical surroundings, which I need not repeat. The County Council is the freehold owner of part of the foreshore at this point. The seabed forms part of the Crown Estate, but the parts of the land required for the marina development have been leased to the Council.
The fishery extends to some 761 hectares, of which 502 hectares is “leased” in 6 areas. Area 3 is held by Extramussel Limited, and Area 4 by Andrew Wilson, both of them defendants to this action. The part of the proposed marina which would fall within the fishery protected by the 1962 Order extends to some 7 hectares out of the total 10 hectares of the marina development. The marina would directly affect only Area 4, which itself comprises some 26 hectares.
The proposal to construct the marina was first made by Anglesey Boat Company Limited early in 1998. The marina would consist of two rock and rubble breakwaters placed in the sea bed to the south-west of Gallows Point, enclosing a yacht basin containing around 400 pontoon berths, with further land to the north and east to be used for boat storage and parking. Construction would involve reclamation and dredging along the shore and sea bed, deposits of debris into the sea and on the sea bed, and fixing of pontoons to the sea bed.
A planning application was submitted in March 1999, and on 1 December 1999 the Council resolved to grant consent. The application was called in by the National Assembly for Wales, which after a public inquiry, and contrary to the Inspector's recommendation, resolved to grant planning consent. Planning consent, subject to conditions, was then issued on 9 January 2003. Thereafter consents under the Coast Protection Act 1949 and the Food and Environment Protection Act 1985 were sought and obtained. All those consents have since expired, and would have to be renewed to enable the development to proceed. The need to comply with such planning and other statutory regimes would not be affected by the declarations sought in the present proceedings.
The judge recorded the conflicting evidence as to the likely impact of the development on mussel farming. Although it is unnecessary to resolve the factual disputes, this evidence sets the scene for the legal issues. I refer in particular to the emphasis placed by the fishery interests on the importance of the intertidal areas of Area 4 to the fishery as a whole:
“21. The evidence before me was to the effect that the mussel growing process broadly involves a three year cycle. Seed mussels are collected from various areas such as Morecambe Bay and sites in South Wales. The seed mussels so collected are then relaid on intertidal ground – that is, the part of the littoral lying between high and low tide – with a view to hardening up the external shells so as to allow the mussels to develop resistance to predation. If they are not so laid, and instead are laid directly in sub-tidal waters, the seed mussels would be subject immediately to extensive predation. In the second year of the cycle the mussels are moved to the intertidal/subtidal boundary; and in the third year the mussels are moved and laid in the subtidal area for growing on. They are then harvested for eventual sale to the market.
22. As explained in a witness statement of Mr James Wilson dated 7 July 2006 the intertidal part of Area 4 is where the seed mussels are laid to harden off; it is, as he puts it, “vital to us”. In his witness statement dated 7 July 2006 Dr Stephen Atkins (Chief Executive of the second defendant) says “The intertidal area is vital … This allows a high degree of mussels to be farmed in the area. Whilst Area 5 also has an intertidal area, destruction of Area 4 will reduce the mussel stock by an estimated 40%”. In a witness statement of Mr Andrew Wilson dated 3 December 2007 it is said that the ground is normally in continual use as a hardening off area, with up to three batches of mussels being hardened each year. Thus this part of the foreshore is of great importance, in a way much exceeding its actual size, not only to Area 4 but also to the whole fishery.”
Thus, although the proposed marina would occupy only around 1.5% of the area currently leased for mussel cultivation and fishing, it would, at least on the evidence of the fishing interests, have a disproportionate effect on the productivity of the whole.
The legislation
Part III of the 1868 Act provided the legislative basis of the 1962 Order, but as already noted it has since been replaced by the 1967 Act. That was a consolidating Act with Law Commission recommended amendments. The 1868 Act was repealed, but orders made or other things done under that Act were treated as having continuing effect as though made under the corresponding provision of the 1967 Act (s 24(3)). It is common ground that the validity of the order should be judged, at least initially, by reference to the 1868 Act. However, as I shall discuss later in this judgment, the terms in which earlier orders were preserved by the 1967 Act are in my view also of some significance.
Section 29 of the 1868 Act conferred power, originally on the Board of Trade, to make an order for the establishment or improvement of an oyster and mussel fishery, on an application by “any persons desirous of obtaining such an order”, referred to as “the promoters”. Such “persons” could be bodies corporate (s 5).
The following sections provided for the publication of draft orders, for the consideration of objections, and for inquiries. By section 34, following the consideration of objections and the report of the inquiry, the Board of Trade could either refuse the proposal, or -
“… make an order in such form and containing such provisions as they think expedient.”
By section 37 the order was required to be confirmed by Act of Parliament. This originally applied in all cases, but in 1938 a substituted section 37 limited the requirement for a confirming Act to cases in which it was specifically called for by a person affected by the order (Sea Fish Industry Act 1938 s 58(3)). Section 39 enabled the Board to make amending orders from time to time, subject to the same procedures.
Section 40 stated the effect of such an order:
“40. Effect of grant of right of several fishery, etc.
Where an order of the Board of Trade under this part of this Act confers a right of several oyster and mussel fishery, the persons obtaining the order, in this Act referred to as the grantees, shall by virtue of the order and of this part of this Act, but subject to any restrictions and exceptions contained in the order, have within the limits of the fishery the exclusive right of depositing, propagating, dredging, and fishing for, and taking oysters and mussels, and in the exercise of that right may within the limits of the fishery proceed as follows, namely, make and maintain oyster and mussel beds, or either of them, and at any season collect oysters and mussels, and remove the same from place to place, and deposit the same as and where they think fit, and do all other things which they think proper for obtaining,...
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