R Nigel Mott v The Environment Agency David Merrett (Interested Party)
| Jurisdiction | England & Wales |
| Judge | HHJ David Cooke |
| Judgment Date | 13 February 2015 |
| Neutral Citation | [2015] EWHC 314 (Admin) |
| Docket Number | Case No: CO/12289/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 February 2015 |
[2015] EWHC 314 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
BIRMINGHAM DISTRICT REGISTRY
Birmingham Civil Justice Centre
Bull Street, Birmingham B4 6DS
HHJ David Cooke
Case No: CO/12289/2013
CO/4422/2014
Mark Beard (instructed by Simon Jackson Solicitors) for the Claimant
Gwion Lewis (instructed by Environment Agency Legal Services) for the Defendant
Hearing dates: 20 th and 28 th November 2014
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The claimant, Mr Nigel Mott, is the leasehold owner, jointly with the interested party Mr Merrett, of a right to fish for salmon at Lydney in the estuary of the River Severn using a putcher rank, that is, an array of 650 basket-like traps into which adult salmon swim as they make their way from the sea to spawn. The putcher is a very old fishing method and traditionally was made of woven wood, but the claimant's are now made of steel. The claimant's putcher fishery is a commercial operation; in the years prior to the decisions challenged the claimant's evidence is that he caught an average of 600 salmon per year with an approximate value of £60,000 and that the fishery represents his full time occupation and livelihood, supporting his family and that of Mr. Merrett. The decisions challenged impose conditions on the licence required to operate the fishery limiting the permissible catch in 2012, 2013 and 2014 to 30, 23 and 24 fish respectively. At these levels, the claimant contends, the fishery is wholly uneconomic and his lease is worthless.
The claimant's lease is a property interest of a somewhat unusual kind. The present lease runs for a period of 20 years from 1 April 1998 (the claimant and Mr. Merrett have held previous leases since 1975) and provides that in consideration of the rents reserved:
"… the Landlords hereby grant and the demise unto the Tenants ALL THAT right to fish two stop nets and 650 putchers in the estuary of the River Severn near Lydney Pill granted under Certificate Numbers 9/56 and 10/57 issued by the Special Commissioners for English Fisheries on the fourteenth day of May 1866 under the Salmon Fishery Acts 1861 and 1865 in the approximate position shown on the plan attached to the said Certificates a copy of which is annexed hereto and marked "A" (which right is hereinafter referred to as "the Fishery") TOGETHER WITH the right to store equipment ancillary to the Fishery on the land measuring 14 yards wide and 35 yards long adjacent to the Fishery appointed by the Landlords AND TOGETHER WITH a right of way … along the track shown with a red line on the plan marked "B"…"
The right to fish by stop nets was not referred to by either party in these proceedings and I say no more about it.
The Certificate referred to declared the putcher rank to be a "Privileged Engine" for the purpose of the Salmon Fishery Acts, on the ground of its long period of customary use prior to 1861. According to Mr. Mott's witness statement, similar systems may have been in use for thousands of years. The holder of the certificate had the right to continue to use the Privileged Engine notwithstanding the controls on salmon fishing introduced by those Acts, and subsequent legislation. It was no doubt a valuable right, and the lease of it to the claimant and Mr Merrett was a valuable piece of property. The annual rent payable under the lease is partly in cash (£180) and partly in kind (65 pounds weight of salmon). The right granted by the lease is the right to take fish using the Privileged Engine. It is not by any means the same as a conventional lease of land; it does not grant exclusive possession of any part of the riverbed and the putchers are required to be placed only in the approximate positions marked on the plan. The ancillary right to store equipment on an area designated by the landlord appears to be in the nature of a licence, and the only other right related to land is the right of way along the specified track leading down to the river. Neither of those rights can have any value, or realistic use, apart from the operation of the fishery.
A licence has been required to operate the putcher rank since the coming in to force of the Salmon and Freshwater Fisheries Act 1975. The power to issue such licences is now vested in the Environment Agency ("the Agency"). Section 25 of that Act introduced a system of licensing for "licensable means of fishing", one such means being a "historic installation". "Historic installations" are defined as various methods of fishing by means of fixed apparatus authorised by virtue of long use prior to 1861, including those (such as the claimant's) certified as Privileged Engines under the 1865 Act.
Section 26 of the 1975 Act conferred a power to limit the number of licences of a particular type issued in a given area, but provided that no such limit should apply to fishing by use of either rod and line or a historic installation. A number of such orders have been made; they are referred to as "net limitation orders", presumably because by virtue of the exclusions they apply to fishing by nets. Such orders have been made in respect of two traditional types of net fishing used on the River Severn, draft nets (a type of seine net) and lave nets (large triangular nets operated by fishermen wading in the river).
There was originally no power to impose conditions such as a catch limitation on a licence issued for use of a historic installation. Such a power was however given by paragraph 14A of schedule 2 to the 1975 Act, introduced with effect from 1 January 2011 by the Marine and Coastal Access Act 2009. It is this that has been relied on to impose the catch limits now challenged. Subparagraph (4) provides however that the Agency "may only impose conditions… where it considers that it is necessary to do so for the protection of any fishery."
Mr. Mott's contention is that the Agency has for at least 10 years wished to close down his fishery. Although the Agency denied that this is the case, I note that in a document served at the start of the hearing setting out a "Technical case for two net limitation orders for the Severn Estuary" Appendix 1 sets out a summary table of planned actions taken from the Severn Estuary Salmon Action Plan 2003 which includes the entry "Putchers (Midlands): Seek closure of Lydney Park Rank". In the past there have been negotiations for Mr. Mott to give up his rights in return for compensation, but no agreement was reached. He was however paid an agreed amount not to fish for the 2011 season, no catch limit having been imposed for that year although the power to do so was then in force.
That was not repeated in 2012 however and instead Mr. Mott was served with a notice under the 1975 Act on 1 June 2012 (bundle, p45), the first day of the fishing season permitted under his licence for that year, limiting his catch to 30 fish. It did not come entirely out of the blue; there had been earlier correspondence including a letter of 13 March 2012 (p70) notifying him that the Agency expected to receive shortly the results of a study which would "provide incontrovertible evidence that the fisheries exploit a mixed stock" and drawing his attention to the power to impose a catch limit without compensation. He had been sent a copy of that study with a letter dated 16 April 2012 (p47) which also notified him that it was intended to set a catch limit of 30 fish for that year.
The study referred to was a report dated 15 April 2012, though evidently discussed in draft with the Agency before that, by Dr Andrew King and others from the School of Biosciences at the University of Exeter. It has been referred to in these proceedings as the "Exeter report". Mr. Mott's contention is that it should have been obvious from the beginning that this study was fundamentally flawed such that its conclusions could not be correct, and accordingly it could not have been rationally relied on as the basis for the decisions taken. It has however formed the sole or main foundation for the decisions in all three years, notwithstanding its alleged immediately obvious unreliability and the criticisms made of it by him as a layman and by expert evidence he has since obtained.
Mr. Mott is aggrieved that the notice given to him did not follow any period of consultation, and that he was not provided with any realistic opportunity to respond to the Exeter report or the conclusions drawn from it before the notice was served. He contrasts this with the statutory obligation to consult before a net limitation order is made, though he accepts that the same statute does not expressly require consultation before imposing licence conditions under para 14A. He is also aggrieved by the fact that no compensation has been offered, though he accepts that the statute does not expressly require any to be paid. He contends however that the conditions imposed are so restrictive that they amount to a de facto expropriation of his property (ie the lease) in breach of Art 1 of the First Protocol to the ECHR ("A1P1").
Before coming to the particular decisions challenged in these proceedings and the objections taken to reliance on the Exeter report, it is helpful to set out some of the background considerations affecting them. I am grateful to both counsel for their explanation of the applicable statutory and EU...
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