R (Bruton) v Attorney General to Duke and Duchess of Cornwall

JurisdictionEngland & Wales
JudgeMR JUSTICE BURTON
Judgment Date19 May 2009
Neutral Citation[2009] EWHC 1652 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCO/12414/2008
Date19 May 2009

[2009] EWHC 1652 (Admin)

IN THE HIGH COURT OF JUSTICE

THE ADMINISTRATIVE COURT

QUEEN'S BENCH DIVISION

Before:

Mr Justice Burton

CO/12414/2008

Between:
The Queen on the Application of Michael Bruton
Claimant
and
(1) The Attorney General to the Prince of Wales (sued as the Attorney General to the Duke and Duchy of Cornwall)
(2) Natural England
Defendants
and
(1) Environment Agency
(2) Marine And Fisheries Agency
(3) Defra
(4) Duchy Of Cornwall Oyster Farm Limited
Interested Parties

Paul Lasok QC and Rebecca Haynes (instructed by Harrison Grant Solicitors) appeared on behalf of the Claimant

Jonathan Crow QC and Martin Chamberlain (instructed by Farrer & Co) appeared on behalf of the First Defendant

Graham Machin (instructed by Matthew Boyer Solicitors) appeared for the Second Defendant

The Interested Parties were not represented and did not attend

(Draft for approval)

MR JUSTICE BURTON
1

: This has been the hearing of an application for permission to apply for judicial review, which has been adjourned into court, unusually, after consideration by a single judge, without granting permission, but so that the matter of permission could be decided before me. It relates to a claim by Mr Bruton, which is brought against two Defendants, and involves four interested parties.

2

It is not unusual in the planning field to involve, and to have to involve, a large number of Defendants and interested parties, but it nevertheless does, by that very fact, involve extra expenditure of costs on all sides. That is particularly so against the background of the fact that the Claimant here is a single litigant and is seeking the assistance of a protective costs order, an application with which I shall deal later.

3

The Claimant also, as is also very often the case in the planning field, seeks to enjoin, although without actually seeking an injunction, the continued operation of a substantial business by the fourth interested party, the Duchy of Cornwall Oyster Farm Limited, whose main principal, Mr Wright, has put in a witness statement which I have had the opportunity of reading, and who has dedicated a good deal of his time, and certainly, I suspect, most, if not, all, of his capital to the development of the oyster farm, for which he obtained a licence in 2005 from the Duchy of Cornwall, the Attorney-General to which is enjoined as the first Defendant.

4

The second Defendant, Natural England, is the body which is rendered responsible for considering the conservation requirements of Sites of Special Scientific Interest (“SSSIs”), among other things, under the aegis of the Wildlife and Countryside Act 1981, which imposes a large number of obligations upon it.

5

In this case the SSSI is an area of water off the coast of Cornwall, which, as I understand it, is some 277 hectares in size. It forms part of a much larger area called an SAC, a Special Area of Conservation. The SAC is the subject matter of particular protection under Community law. The relevant Council Directive of 21st May 1992 (92/43/EEC) is the Council Directive on the Conservation of Natural Habitats and of Wild Fauna and Flora (“the Habitats Directive”).

The Habitats Directive contains obligations, in Article 6, on Member States, in respect of SACs. The relevant articles in issue before me are:

“6(2) Member States shall take appropriate steps to avoid any special areas of conservation, the deterioration of natural habitats and the habitats of species, as well as disturbance of the species for which the area has been designated, in so far as such a disturbance could be significant in relation to the objectives of this Directive.

6(3) Any plan or project not directly connected with or necessary to the management of the site, but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site, in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site … the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.”

6

The words “appropriate assessment” have become a term of art, and it is the existence or otherwise of an appropriate assessment which is in issue on this application. The Claimant alleges that both the first Defendant, the Duchy, and the second Defendant, Natural England, owe obligations to have carried out an appropriate assessment, in relation to the implications for the relevant site, the oyster farm operated by the fourth interested party.

7

Three other interested parties have been joined —the Environment Agency, the Marine and Fisheries Agency and DEFRA —who have not taken part in this application before me, but who, it is also suggested, may have obligations in relation to the supervision of the SAC and/or SSSI in this case.

8

The oyster farm extends wider than the SSSI to which I have referred. It extends into other parts of the much larger SAC, although, on the evidence before me, it is not clear what the precise area of the oyster farm is. Natural England only has obligations, to which I have referred, in respect of operations within the SSSI.

9

The Directive has been effected in this country by the Conservation (Natural Habitats, &c.) Regulations 1994. The relevant regulations which have been in issue before me are primarily Regulations 47 and 48.

10

Regulation 47 reads as follows:

“(1) The requirements of-

(a)regulations 48 and 49 (requirement to consider effect on European sites [that is a reference to the SAC]), and

(b)regulations 50 and 51…

apply, subject to and in accordance with the provisions of regulations 54 to 85, in relation to the matters specified in those provisions.”

11

What is said by Mr Crow QC for the Duchy is that Regulation 47 means that Regulation 48, to which I shall return, has no relevance to the instant case, because it would only be relevant were we considering the provisions of Regulations 54-85, which we are not. Regulation 48 introduces, under the statutory heading “Assessment of implications for European site” the provision that:

“(1)A competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which-

(a)is likely to have a significant effect on a European site in Great Britain (either alone or in combination with other plans or projects), and

(b)is not directly connected with or necessary to the management of the site

shall make an appropriate assessment of the implications for the site in view of that site's conservation objectives.”

12

There are two other regulations which are relevant for the purposes of my consideration. The first is Regulation 3. Under the heading “Implementation of Directive”, Regulation 3(2) states:

“The Secretary of State, the Minister of Agriculture, Fisheries and Food and the nature conservation bodies shall exercise their functions under the enactments relating to nature conservation so as to secure compliance with the requirements of the Habitats Directive.”

13

One of those enactments is the relevant part of the Wildlife and Countryside Act 1981 to which I earlier referred.

Regulation 3(4) says:

“Without prejudice to the preceding provisions, every competent authority in the exercise of any of their functions, shall have regard to the requirements of the Habitats Directive so far as they may be affected by the exercise of those functions.”

14

The other regulation is Regulation 6, which defines “competent authority” as follows:

“For the purposes of these Regulations the expression 'competent authority' includes any Minister, government department, public or statutory undertaker, public body of any description or person holding a public office.”

15

The brief facts in this case are that, as I have already indicated, in 2005 a licence was granted by the Duchy to the fourth interested party, pursuant to which the fourth interested party was permitted to enter upon the land and sea owned by the Duchy and to put into effect its oyster farm, which it has thereafter commenced to continue to do. It is suggested by the Claimant that the Duchy owed a duty, either under the Regulations or under the Habitats Directive or both, to have carried out an appropriate assessment before granting that licence, and that if that licence is subsequently converted into an agreement for lease, it would be under an obligation to carry out a further appropriate assessment.

16

It is common ground that the Duchy has not carried out an appropriate assessment. It regards itself as under no duty to do so. It is a landlord, obviously a very substantial landowner, and not one which expects to be governed or is, on proper construction, governed by the directives and regulations to which I have referred. I shall return to that in a moment.

17

The issue of what an appropriate assessment is, and its circumstances, has been recently considered by the European Court in Case C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee and another v Staatsecretaris van Landbouw, Natuurbeheer en Visserij [2004] ECR I-7405, to which my attention has been helpfully drawn by Mr Lasok QC for the Claimant. There is a description of the concept of appropriate assessment in paragraphs 52 to 54 of the judgment of the court in that case:

“52.As regards the concept of appropriate assessment within the meaning of Article...

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