R Nigel Mott v Environment Agency David Merrett (Interested Party)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Beatson,Lord Justice McFarlane,The Master of the Rolls
Judgment Date17 June 2016
Neutral Citation[2016] EWCA Civ 564
Date17 June 2016
Docket NumberCase No: C1/2015/0931

[2016] EWCA Civ 564

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT IN BIRMINGHAM

HHJ David Cooke

[2015] EWHC 314 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Master of the Rolls

Lord Justice McFarlane

and

Lord Justice Beatson

Case No: C1/2015/0931

Between:
The Queen on the Application of Nigel Mott
Claimant/Respondent
and
Environment Agency
Defendant/Appellant

and

David Merrett
Interested Party

Gwion Lewis (instructed by Environment Agency Legal Services) for the Defendant/Appellant

David Hart QC and Mark Beard (instructed by Simon Jackson Solicitors) for the Claimant/Respondent

The Interested Party did not appear and was not represented

Hearing date: 26 April 2016

Further submissions: 13 May 2016

Approved Judgment

Lord Justice Beatson

I. Overview:

1

This appeal concerns salmon fishing at Lydney in the Severn estuary. Since 2012 the appellant, the Environment Agency ("the Agency"), has imposed an annual limit on the number of salmon caught by using a putcher rank, an ancient method of fishing. The method involves the use of conical baskets to trap adult salmon as they make their way back from the sea to the river of their birth to spawn. The respondent, Mr Nigel Mott, and the interested party, Mr David Merrett, are the leasehold owners of a right to fish for salmon at Lydney using putchers. Before the introduction of the limit they caught about 600 salmon in a year. The conditions imposed on their licences reduced their permissible catch by about 95% to 30 in 2012, 23 in 2013, and 24 in 2014.

2

The conditions limiting the number of salmon caught are referred to as "catch conditions". The Agency imposed them because it considered that it was necessary to do so for the protection of the salmon fisheries in the River Wye, which is a Special Area of Conservation ("SAC") under the Habitats Directive, Council Directive 92/43/EEC. It had assessed that: (a) the Severn estuary fisheries exploited a mixed stock, (b) the salmon caught there included salmon that originated in the River Wye and would otherwise spawn in that river, and (c) the fishery in the Wye is at risk of not achieving its spawning targets and of becoming unsustainable. Lydney is some 15 kilometres upstream from the mouth of the River Wye, and thus further from the open sea than the mouth of the Wye. The Agency proceeded on the basis of its assessment that salmon caught at Lydney which it estimated originated from the Wye would, if they had not been caught, inevitably have returned to the Wye to spawn, even though they had swum some 15 kilometres past its mouth.

3

Mr Mott challenged the conditions limiting his permissible catch in two applications for judicial review. The first, filed on 29 August 2013, challenged the conditions imposed for the 2012 and 2013 seasons. The second, filed on 23 September 2014, challenged the conditions imposed for the 2014 season. Mr Mott was successful. Following a careful and well-structured judgment ( [2015] EWHC 314 (Admin)) handed down on 13 February 2015, in an order dated 18 March 2015, HHJ David Cooke, sitting as a judge of the High Court in the Administrative Court in Birmingham, allowed the claims. The order declared that the Agency's decisions to impose these limits were unlawful because they were irrational in the Wednesbury sense and unlawfully interfered with Mr Mott's right to the peaceful enjoyment of his possessions under Article 1 of the First Protocol to the European Convention on Human Rights ("A1P1"). The judge also gave Mr Mott permission to amend his claims to include a claim in damages under section 8 of the Human Rights Act 1998 for the breach of his A1P1 rights. The Agency appeals from that order.

4

It will be necessary to consider the regulatory background, the basis on which the Agency imposed the limits, and the reasons the judge found them to be unlawful in some detail. At this stage, it suffices to say that the Agency's assessment that the putcher ranks in the Severn Estuary were having a material effect on the salmon fishery in the Wye and its consequent decisions were largely based on the "Report to the Environment Agency on the Genetic Assignment of Severn Estuary Adult Atlantic Salmon", April 2012, by King, Counter and Stevens, three researchers at the School of Biosciences in the University of Exeter's College of Life and Environmental Sciences ("the Exeter Report"). The 2014 decision was also in part based on an updated report by the same authors in 2013.

5

The evidence before the judge consisted of the Exeter reports, three statements of Mr Mott, dated 29 August 2013, and 26 March and 8 August 2014, and two statements of Mr Crundwell dated 24 September 2013 and 21 October 2014. Mr Crundwell is a senior technical specialist in fisheries in the Agency's Midland region and has been employed by the Agency or its predecessors for 21 years. The evidence before the judge also included three reports about the Exeter report and the methods it used which were prepared after the 2013 decision as to the catch limit and therefore were not available to the agency at the time of the first two decisions that are challenged. The reports are of Professor Rachel Fewster, a specialist in statistical ecology at the University of Auckland, whom Mr Mott consulted, and Dr Terry Beacham, the Head of Stock Identification at the Molecular Genetics laboratory at the Pacific Biological Station of the Canadian agency Fisheries and Oceans Canada, whom the Agency consulted. Professor Fewster's reports are dated June and November 2014, the latter a response to Dr Beacham's report which is dated 23 October 2014.

6

The judge considered that flaws in the Exeter Report meant it did not provide a rational basis for the Agency's view and its decisions and that they were consequently Wednesbury unreasonable or irrational. On A1P1, he held that the irrationality of the decisions meant there was a disproportionate and therefore unlawful interference with Mr Mott's rights. He also held that, even if the Agency could properly have imposed these limits, the extent of the interference with Mr Mott's rights meant that in the absence of compensation the burden was disproportionate and a breach of A1P1.

7

The two principal questions for decision are the rationality of the Agency's approach to its regulatory powers against the background of its regulatory duties under the Habitats Directive and whether, in the context of A1P1, the Agency's interference with Mr Mott's right to fish by imposing a limit on the number of fish caught each year is a "deprivation" or a "control", and, if the limit is imposed without compensation, it is disproportionate and therefore unlawful. The first question also involves considering the approach of a judicial review court when considering a regulator's decision that is predictive in the sense that it is the result of an evaluation of assessments as to what might happen in the future and that evaluation is wholly or partly made on the basis of scientific material.

8

For the reasons given at [60] – [80] below, I have concluded that the appeal against the declaration that the decisions to impose the catch limits were unlawful because they were irrational in the Wednesbury sense should be allowed. I have also concluded that the appeals against the declaration that the decisions unlawfully interfered with Mr Mott's right to the peaceful enjoyment of his possessions under A1P1, and against the judge's decision to permit an amendment to include a claim in damages, should be dismissed. My reasons are given at [83] – [90] below.

II. The legislative framework

9

Putchers were used for many years before the controls on salmon fishing introduced by the Salmon Fisheries Acts 1861 and 1865. Those with the right to fish using them had the right to continue to do so, notwithstanding those controls under certificates of privilege granted under the 1865 Act. As a result, putchers are referred to as a "Privileged Engine" or "an historic installation". Since 1975 those using putcher ranks have been required to obtain a licence: see section 25 of the Salmon and Freshwater Fisheries Act 1975 ("the 1975 Act"). The power to issue such licences is now vested in the Environment Agency.

10

Until recently the position of those using "an historic installation" differed from those using other licensable means of fishing, such as rod and line or net. In case of a licence issued for use of "an historic installation" there was no power under the 1975 Act to impose conditions such as the "catch limitations" imposed in the decisions challenged in these proceedings. Moreover, the power to limit the number of licences of a particular type issued in a given area applied only to fishing by net: section 26 of the 1975 Act.

11

The position changed at the beginning of 2011, when section 217(7) of the Marine and Coastal Access Act 2009 came into effect. This introduced a new paragraph 14A into Schedule 2 to the 1975 Act. Sub paragraphs (1) and (4) of paragraph 14A empower the relevant regulator to impose conditions on the use of a fishing licence granted in respect of "an historic installation" "where it considers that it is necessary to do so for the protection of any fishery".

12

As to the wider regulatory environment, the relevant EU provision is the Habitats Directive, Council Directive 92/43/EEC. It was transposed into United Kingdom Law by the Conservation (Natural Habitats, &c.) Regulations 1994, SI No 2716 of 1994, which were consolidated by the Conservation of Habitats and Species Regulations 2010, SI No 490 of 2010 ("the 2010 Regulations"). The main aim of the Habitats Directive is to promote the maintenance of biodiversity by requiring Member States to take measures to maintain or restore natural habitats and...

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