R (Akester) v Department for Environment Food & Rural Affairs and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Owen |
| Judgment Date | 16 February 2010 |
| Neutral Citation | [2010] EWHC 232 (Admin) |
| Docket Number | Case No: CO/1834/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 February 2010 |
[2010] EWHC 232 (Admin)
Before: Mr Justice Owen
Case No: CO/1834/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
William Norris QC & Justine Thornton (instructed by Richard Buxton) for the Claimants
Stephen Tromans QC & Colin Thomann (instructed by DEFRA Litigation & Prosecution Department) for the 1 st Defendant.
Richard Drabble QC & Stephen Morgan (instructed by Bircham Dyson Bell LLP) for the 2 nd Defendants.
Gregory Jones (instructed by Lester Aldridge LLP) for the 1 st Interested Party.
Gordon Nardell (instructed by Grainne O'Rourke, Head of Legal and Democratic Services) for the 3 rd Interested Party.
Hearing dates: 14 th & 15 th December 2009
Mr Justice Owen:
The claim concerns the legality of a decision made by the second defendant, Wightlink Ltd (Wightlink) which operates ferries on three routes between the mainland and the Isle of Wight, to introduce a new class of ferry, the W class, on the route between Lymington and Yarmouth, a decision implemented on 25 February 2009. The claimants, who bring the claim on behalf of the Lymington River Association ( LRA), seek to challenge the decision on the basis that it was made and implemented in breach of Council Directive 92/43/EEC of 21 May 1992 on the Conservation of Natural Habitats and of Wild Fauna and Flora (the Habitats Directive), and the Conservation (Natural Habitats &c) Regulations 1994, by which the Habitats Directive was implemented (the Habitats Regulations). They further contend that the first defendant, the Department for Environment, Food and Rural Affairs (DEFRA) has failed properly to implement Article 6(2) of the Habitats Directive, in that there would appear to be no, or no adequate, regulatory powers available to prevent Wightlink from introducing the W class ferries.
The Interlocutory proceedings
On 24 February 2009, the day before the introduction of the W class ferries, the claimants sought an injunction ex parte to restrain Wightlink from operating them on the Lymington to Yarmouth route. Beatson J refused the application, but ordered that it be brought before the court on notice as a matter requiring immediate attention. He further granted the claimants protection from the costs of the defendants and the proposed interested parties up to and including the end of the oral hearing for interim relief. On 25 February the claimants served the claim on DEFRA and Wightlink, and on the three interested parties, Lymington Harbour Commissioners, Natural England, and the New Forest District Council. On 26 February Beatson J ordered that the application for interim relief be listed as soon as possible, and on 12 March HHJ Birtles, sitting as a Deputy High Court Judge, ordered inter alia that the application for interim relief be dismissed, that with the consent of the parties that there be a ‘rolled up’ hearing of the permission application, and that the protective costs order be extended to 27 March.
On 24 April Christopher Symons QC, sitting as a Deputy High Court Judge, ordered inter alia that the protective costs order be extended until judgment in the substantive hearing, but be amended with effect from 4 pm on 27 April 2009 by the defendants’ liability to the claimants being capped at a total of £120,000 inclusive of the costs incurred to date, and by the claimants’ liability being capped at a total of £15,000.
The Parties
The LRA, on whose behalf the claim is brought, is an association, now incorporated, of local residents and users of the Lymington river, formed to
“ensure greater awareness of the Environmental and Safety impacts and Regulatory facts relating to the proposed new much bigger ferries”.
DEFRA is the central government department responsible for ensuring that the UK's obligations under the Habitats Directive are fulfilled.
Wightlink is a private company, and is the owner of and statutory harbour authority for the ferry terminal comprising Lymington Pier.
The Lymington Harbour Commissioners are the statutory harbour authority for the Lymington river and harbour under the Harbours Act 1964, and manage the river and harbour in accordance with the Lymington Harbour Orders of 1951–2002.
Natural England is the statutory nature conservation body for England. Its role, inter alia, is to provide advice to ‘competent authorities’ on the scope of ‘appropriate assessments’ required under the Habitats Directive regime. Natural England did not appear and was not represented at the hearing, but set out its position in a letter from its solicitors, Browne Jacobson, dated 11 December 2009.
The New Forest District Council is the local planning authority in relation to the Lymington Pier ferry terminal operated by Wightlink.
The Issues
The claim is summarised in the amended grounds in the following terms:
“5) The decision by Wightlink to introduce a new type of ferry into service on the Lymington to Yarmouth route, which passes through internationally designated nature conservation sites, is unlawful because:
a) It is in breach of the UK Habitats Regulations; the EC Habitats Directive and perverse.
b) In unilaterally introducing the ferries, despite the environmental concerns expressed by DEFRA, Natural England and the Lymington Harbour Commissioners, Wightlink has acted in breach of its statutory nature conservation duties.
c) Wightlink appears to have sought to evade proper compliance with the Habitats legislative regime by narrowing the scope of its initial project to exclude physical development associated with the introduction of the ferries.
6) The UK has failed to properly implement Article 6 (2) of the Habitats Directive. There appears to be no regulatory power available to prevent Wightlink from introducing the ferries despite the fact that the ferries are likely to have significant environmental effects on internationally designated nature conservation sites.
7) To the extent that the Court considers it has no choice but to interpret Regulations 48 and 49 of the Habitats Directive as only applying to plans or projects which require authorisation or consent, the UK has failed to properly implement Article 6 (3) of the Habitats Directive.
8) The UK has failed to properly implement Directive 85/337/EEC on (“the EIA Directive”) in that the introduction of ferries weighing more than 1350tonnes, which are considered likely to have significant environmental effects, escape the requirements of an environmental assessment because they do not constitute physical development or require regulatory consent. The Claimants rely on the direct effect of the Directives in seeking a declaration that the introduction of the ferries, in the absence of an environmental assessment, was unlawful.”
The claimants no longer seek injunctive relief. In a supplementary written submission, forshadowed by a letter to the defendant dated 29 October 2009 and a letter to the court from his instructing solicitors dated 16 November 2009, Mr William Norris QC, who appeared for the claimants, indicated that the claimants now invite the court to declare that:
“a. The Ferry Service is and was a ‘plan or project’
b. The responsibility for deciding whether there should be an Appropriate Assessment and, in the light of that decision, was one for the relevant competent authority which, in the circumstances of this case, was DEFRA or a governmental body answerable to Defra and not for Wightlink
c. There was no such AA or anything which qualified as such before the new service commenced
d. As in February 2009 Wightlink acted unlawfully in commencing the new ferry service
e. As in February 2009 DEFRA/the UK Government had not effectively transposed the Habitats Directive into domestic law
f. The Defendants should pay the cost of the proceedings should any of those declarations be granted”
Both defendants dispute the claim, and furthermore both invite me to refuse permission on the basis that the application has become academic, a point to which I shall return. But in addressing the question of whether Wightlink acted unlawfully in resolving to introduce the W class ferries on the Lymington route, it is necessary to consider the following issues:
1. Was the proposal to introduce the W class ferries a plan or project within the meaning of the Habitats Directive? If so
2. Was there a competent authority within the meaning of the Habitats Directive? If so
3. Was there an appropriate assessment of the effect of the introduction of the W class ferries on the protected sites?
So far as DEFRA is concerned, the issue that the claimants seek permission to argue is whether the Habitats Directive was effectively transposed into domestic law as at 25 February 2009.
The Legal Framework
The Habitats Directive was adopted in 1992. Its aim is to protect the most seriously threatened habitats and species across Europe, and it complements the EC Directive on Wild Birds (79/409/EEC) (the ‘Birds Directive’) adopted in 1979. The Birds Directive and the Habitats Directive established the European framework for the conservation of wild birds, and of natural habitats and flora and fauna respectively, and together provide the regulatory framework for what is known as the ‘Natura 2000’ network of protected...
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