R (Mott) v Environment Agency
| Jurisdiction | England & Wales |
| Judge | Lord Carnwath,Lady Hale,Lord Briggs,Lord Kerr,Lady Black |
| Judgment Date | 14 February 2018 |
| Neutral Citation | [2018] UKSC 10 |
| Court | Supreme Court |
| Date | 14 February 2018 |
[2018] UKSC 10
Lady Hale, President
Lord Kerr
Lord Carnwath
Lady Black
Lord Briggs
Appellant
James Maurici QC
Gwion Lewis
(Instructed by Environment Agency Legal Services)
Respondent
Stephen Hockman QC
Mark Beard
(Instructed by Harrison Clark Rickerbys Inc Simon Jackson)
Heard on 13 December 2017
( with whomLady Hale, Lord Kerr, Lady BlackandLord Briggsagree)
This appeal concerns the legality under the European Convention on Human Rights of licensing conditions imposed by the Environment Agency (“the Agency”) restricting certain forms of salmon-fishing in the Severn Estuary.
The respondent, Mr Mott, has a leasehold interest in a so-called “putcher rank” fishery at Lydney on the north bank of the Severn Estuary. A putcher rank is an old fishing technique, involving the use of conical baskets or “putchers” to trap adult salmon as they attempt to return from the open sea to their river of origin to spawn. Mr Mott has operated the putcher rank under successive leases since 1975. Since 1979, according to his evidence, it has been his full-time occupation. He claims that, before the limits introduced by the Agency in 2011, his average catch using the rank was some 600 salmon per year, at a value of about £100 each, giving him a gross annual income in the order of £60,000.
The right to operate the rank is derived from a “Certificate of Privilege” dated 14 May 1866, issued by the Special Commissioners for English Fisheries, and owned by the Lydney Park Estate. The current 20-year lease was granted jointly to Mr Mott and a Mr David Merrett, and will expire on 31 March 2018. It gives them the right to fish two stop nets and 650 putchers, in return for payment of an annual rent in two parts: a “fish rent” equivalent to 65 pounds in weight of salmon, and a “monetary rent” of (since the last review date) £276. The tenants are required to operate the putcher rank during each fishing season unless circumstances make it impossible. Further they may not assign, let or part with the fishery during the term of the lease, save upon death or disability, when they may with the written consent of the landlord assign to another family member.
To operate the putcher rank Mr Mott has required an annual licence from the Environment Agency (“the Agency”), under section 25 of the Salmon and Freshwater Fisheries Act 1975 (“the 1975 Act”). The salmon season runs from 1 June to 15 August. Licences are usually issued by the Agency in late April or early May, shortly before the season opens. Until recently a licence for use of “an historic installation” such as the putcher rank (unlike other methods of fishing) could not be made subject to conditions limiting the number of fish taken (“catch limitations”). However, with effect from 1 January 2011, the 1975 Act was amended to enable the Agency to impose such conditions where considered “necessary … for the protection of any fishery” (paragraph 14A of Schedule 2 to the 1975 Act, inserted by Marine and Coastal Access Act 2009 section 217(7)).
It has been government policy, as implemented by the Agency and its predecessors, supported by government, that in the interests of effective management “mixed stock fisheries” should be gradually phased out, and exploitation limited, as far as possible, to places where the stock of salmon is from a single river. The Agency considers that all the fisheries in the Severn Estuary exploit a mixed salmon stock, with fish destined to return to the rivers Severn, Wye, Usk, Rhymney, Taff and Ely and other rivers.
The rivers Wye and Usk are designated as Special Areas of Conservation (“SAC”) under the European “Habitats Directive” (Council Directive 92/44/EEC), transposed into domestic law by the Conservation of Habitats and Species Regulations 2017 (“the Habitats Regulations”). One of the main reasons for the designation of these rivers is the need to conserve their salmon stocks. The Severn Estuary itself is designated as a SAC, a Special Protection Area (under the Council Directive on the Conservation of Wild Birds (Council Directive 79/409/EEC)), and a Ramsar site. Together, these areas constitute the Severn Estuary European Marine Site, for which salmon is a qualifying feature.
For some years the status of salmon stock in the Wye and Usk has been categorised by the responsible authorities as “unfavourable” or “at risk”, because of failure to achieve stock conservation targets or the objectives set under the Habitats Directive.
In late 2003, the Agency attempted to purchase the Certificate of Privilege to operate the putcher rank. It agreed terms with the Estate, subject to contract, and (as the Estate required) subject to agreement with the tenants for termination of the lease. Negotiations between the Agency and the tenants took place in 2004. By an agreement in 2004, the Agency paid the tenants £30,000 compensation not to operate the putcher rank fishery during the 2004 fishing season. The agreement also provided a further payment of £10,000, if agreement were reached before 1 June 2005 for permanent cessation. In the event negotiations for permanent cessation were unsuccessful. It was agreed in principle that compensation should be paid, but the parties failed to agree the basis of valuation. During the 2005 to 2009 seasons the tenants continued to operate the fishery. In 2010 an agreement was again reached for payment of £30,000 compensation not to operate the fishery during that season.
In February 2011, the Agency offered to purchase the then remaining term of the lease (seven years), but negotiations were unsuccessful. However, in response to the application for a licence for the 2011 season, the Agency agreed to pay the tenants £35,000 compensation not to operate the putcher rank fishery during that season. Another historic installation fishery was also paid not to seek a licence in the 2011 season. The only historic installation fishery that was licensed in 2011 operated under the terms of a catch condition, imposed under the new powers in paragraph 14A of Schedule 2 to the 1975 Act which had by then come into effect. The catch condition was determined following an “appropriate assessment” under the Habitats Regulations (“the 2011 HRA”).
The events leading to the present dispute began with a letter from the Agency dated 16 April 2012, informing Mr Mott of a report by the University of Exeter (“the Exeter Report”), which, it was said, provided clear evidence of the mixed stock nature of the catch in the Severn Estuary. He was informed of the intention to set a catch limit of 30 fish for that year, and of the power under the amended 1975 Act to impose a catch limit without compensation. The Exeter Report was followed in May 2012 by a Habitats Regulations Assessment (“the 2012 HRA”) to the effect that unconstrained catches of salmon in the estuary were threatening the integrity of the River Wye SAC, and that it was necessary to limit the use of the historic installation fisheries. As HHJ Cooke, sitting as a judge of the High Court noted (para 13), the contemporary documents showed that the “controlling factor” was consideration of the numbers of salmon returning to the Wye to spawn, the stock in that river being considered to be the most vulnerable; and the impact of the claimant's fishery was considered therefore in terms of its potential effect on salmon destined to spawn in the Wye.
Mr Mott did not accept the Exeter Report's findings. Having failed to persuade its authors at a meeting in May 2012, he commissioned his own expert report from a Professor Fewster of University of Auckland, New Zealand. The disagreements between the experts were the subject of detailed study in the courts below but are not relevant to the remaining issue in this appeal.
In the meantime, Mr Mott was served with a notice under the 1975 Act on 1 June 2012, the first day of the new fishing season, limiting his catch to 30 fish. This figure was fixed “by reference to the lowest catch by any of the historic installation fisheries that had sought a licence in the preceding ten-year period”, with some increase to mitigate the risk of “reduction in licence uptake and failure to maintain possible heritage”. A further reduction to 23 salmon was proposed for 2013, and 24 for the 2014 season.
The judge referred to a sentence in the Habitats Regulations Assessment for 2013 which explained that under the new regime “the catch by the most productive estuary fisheries will be restricted to the approximate long-term de minimus (sic) catch.”: [2015] EWHC 314 (Admin); [2016] Env LR 27 (para 31). He commented on the effect on Mr Mott:
“33. The final sentence quoted above was explained as meaning that the number of fish allowed per licence was set as being approximately the ten year average catch of the least productive of all the fisheries licensed. The practical result for the claimant is that his fishery of 650 putchers is given the same catch allocation as the smallest and least effective of the other putcher fisheries, which may operate 50 baskets or less. These he says are not commercially viable but operated only as a hobby. Plainly, the heaviest impact of this policy falls on the claimant who relies on the fishery for his living rather than the smaller operators.”
In the present judicial review proceedings Mr Mott challenged the decisions of the Agency to impose conditions on the licences for 2012, 2013 and 2014, limiting catches respectively to 30, 23, and 24 salmon per season. He alleged irrationality, and breach of his...
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