R Lymington River Association v Secretary of State for Communities and Local Government Wightlink Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 01 August 2013 |
| Neutral Citation | [2013] EWHC 2810 (Admin) |
| Date | 01 August 2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/8745/2012 |
[2013] EWHC 2810 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Cranston
CO/8745/2012
and
Mr R Buxton (Solicitor Advocate) (instructed by Richard Buxton Solicitors) appeared on behalf of the Claimant
Ms L Bush (instructed by Treasury Solicitor) appeared on behalf of the Defendant
Mr J Maurici QC (instructed by Berwin Leighton Paisner) appeared on behalf of the Interested Party
This is a renewed application for permission to apply for judicial review which was lodged in August 2012. Males J refused permission on the papers in May 2013.
The claimant, Lymington River Association, is a local group. It seeks permission to challenge the decision of the Secretary of State for Communities and Local Government made in May 2012 not to use his revocation powers in section 100 of the Town and Country Planning Act 1990 in relation to the grant of two planning permissions to the interested party, Wightlink Limited, which operates the car ferry service from Lymington, Hampshire to Yarmouth on the Isle of Wight. Wightlink is also the statutory harbour authority for the Lymington pier and ferry terminal.
The permissions were granted in respect of, firstly, shore works, to include the replacement and upgrading of the existing berthing arrangements at Lymington, and, secondly, recharge and habitat creation works in the Lymington river estuary at Boiler Marsh. The shore works have been completed and two of the three recharge works permitted have taken place.
The ferry route is 3.4 nautical miles, of which 1.4 nautical miles are in the Lymington river. That river's estuary is ecologically important, mainly because of the extensive salt mashes and mudflats within the mouth of the estuary and the large number of wintering bird these habitats support. It falls within the Solent Maritime Special Area of Conservation ("the SAC"), the Solent and Southampton Water Special Protection Area ("the SPA") and the Solent and Southampton Water Ramsar site ("the Ramsar site"). Collectively these can be described as the European sites since they fall under the Habitats Directive 92/43 EEC. The estuary is also within the Hurst Castle and Lymington River Estuary Site of Special Scientific Interest ("SSSI"). Although that SSSI is further upstream of the ferry terminal, it has a bearing on matters since migratory fish pass through the estuary.
There has been a ferry route between Lymington and Yarmouth since the 1830s. From 1973 it was operated by the so-called Class C ferries. In 2009 Wightlink replaced these with larger Class W ferries. There was judicial review in relation to that in R (on the application of Akester) v Department for Environment, Food and Rural Affairs [2010] EWHC 232 (Admin). Owen J declared that the decision taken by Wightlink to introduce the new ferries was unlawful, being in breach of its duties as a competent authority under Article 6(3) of the Habitats Directive and the Conservation of Habitats and Species Regulations 2010 ("the Habitats Regulations"), which implement the Directive in the United Kingdom. Owen J also held that the Directive was not fully and properly transposed into domestic law by the Regulations in their original form.
Articles 6(2), 6(3) and 6(4) of the Habitats Directive read as follows:
"2. Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.
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 and subject to the provisions of paragraph 4, 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.
4. If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted.
Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those
Relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from
the Commission, to other imperative reasons of overriding public interest."
Regulation 61 of the 2010 Regulations reads as follows:
"61.—(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 or a European offshore marine site (either alone or in combination with other plans or projects), and
(b)is not directly connected with or necessary to the management of that site,
must make an appropriate assessment of the implications for that site in view of that site's conservation objectives.
…
(5) In the light of the conclusions of the assessment, and subject to regulation 62 (considerations of overriding public interest), the competent authority may agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the European site or the European offshore marine site (as the case may be)
(6) In considering whether a plan or project will adversely affect the integrity of the site, the authority must have regard to the manner in which it is proposed to be carried out or to any conditions or restrictions subject to which they propose that the consent, permission or other authorisation should be given."
Following the decision, Wightlink conducted an appropriate assessment made under the 2010 Regulations. As well, Wightlink submitted applications to the local planning authorities, the New Forest District Council and the New Forest National Park Authority, for the shore works and the recharge and habitat creation works at Boiler Marsh which I have described. These applications then came before a Planning Inspector, Mary O'Rourke. By the time she heard the appeal, the advice of Natural England was that, subject to two matters, the operation of the new ferries would not have any adverse effect on the integrity of the European sites and would not be likely to damage the SSSI. The two matters were the provision of an acceptable section 106 agreement regarding the recharge and habitat works and the commencement of those works by spring 2012. The first condition was satisfied during the course of the appeal.
As the Inspector noted in her decision, the position of Natural England was especially important since Regulation 61(3) of the 2010 Regulations required her to consult it as the appropriate nature conservation body and to have regard to its representations. Moreover, in R (on the application of Hart District Council) v Secretary of State for Communities and Local Government [2008] EWHC 1104 (Admin), [2008] 2 P&CR 16, Sullivan J (as he then was) held that considerable weight had to be given to its views. The Environment Agency had no objection in principle to the works and following the advice of Natural England the local planning authorities also fell into line. Thus the only objections maintained at the appeal were by the claimant in the present action, the Lymington Society, and an individual, Peter Hebard.
As indicated, the Inspector granted Wightlink permissions in respect of the shore works and the recharge and habitat creation works. In the course of her decision she said that the ferries would have a significant effect and, in the absence of further measures, an adverse effect on the integrity of the European sites through accelerated erosion of the lower mudflat could not be excluded. She noted that the main parties agreed that the impact of ferries was dwarfed by the landscape-scale natural erosion changes. Wightlink proposed measures to avoid the risk of an adverse effect by reducing ferry speeds and running fewer services until recharge of the upper mudflat had occurred.
At paragraph 60 of her decision she referred to the historic operation of the Class C ferries. The view of Natural England was that it was right that the operation of those ferries was outside the scope of her inquiry, although past effects of their operation were relevant in considering background environmental considerations and made it all the more important for Natural England to be satisfied that the W class ferries could not have any adverse effects. It was now satisfied.
The Inspector also noted at paragraph 61 that there...
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R (Lymington River Association Ltd) v Secretary of State for Communities and Local Government Wightlink Ltd (Interested Party)
...which is reported at R (on the application of Lymington River Association) v Secretary of State for Communities and Local Government [2013] EWHC 2810 (Admin). It is unnecessary to repeat that detail for the purpose of determining this renewed application for permission to appeal. It is only......