The Queen (on the application of Clive Stephen Townley) v National Resources Wales
| Jurisdiction | England & Wales |
| Judge | Jarman |
| Judgment Date | 27 August 2021 |
| Neutral Citation | [2021] EWHC 2391 (Admin) |
| Docket Number | Case No: CO/1290/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 2391 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Cardiff Civil and Family Justice
2 Park Street
Cardiff CF10 1ET
HIS HONOUR JUDGE Jarman QC
Sitting as a judge of the High Court
Case No: CO/1290/2021
and
Ms Sioned Davies instructed by the claimant
Mr Leon Glenister (instructed by Browne Jacobson) for the defendant
The interested party did not appear and was not represented
Hearing dates: 19 August 2021
Approved Judgment
This judgment is handed down remotely via CVP and is deemed to be handed down at 10am Friday 27 August 2021. It will be sent to the parties and to Bailli for publication.
HH JUDGE Jarman QC:
The River Wye rises on Plynlimon and makes its way through the Cambrian Mountains and over the Welsh-English border before returning and entering the Severn Estuary near to Chepstow. Its ecological importance is recognised in its designation as a special area of conservation (SAC) under the Conservation of Habitats and Species Regulations 2017 (the Habitats Regulations). In addition, there are sites along its lengths and including adjacent riparian habitats which are designated as sites of special scientific interest (SSSI) under the Wildlife and Countryside Act 1981 (the 1981 Act). That gives protection to specified wildlife, including sea lamprey and twaite shad which migrate to the river to spawn. One such SSSI is that of the Upper Wye from source to Hay (the site). Part of that protection is to prohibit certain activities, including the use of craft or recreational activities likely to damage riparian features or disturb features of interest. Consent to carry on such activities may be given by a competent authority, which for the site is the defendant (NRW), under section 28E of the 1981 Act, and such consent may be withdrawn or modified.
Regulation 24(1) of the Habitats Regulations has the effect in the present case that where it appears to NRW that a notice of a proposal under section 28E of the 1981 Act relates to an operation which is or forms part of a plan or project which is likely to have a significant effect on a European site (either alone or in combination with other plans or projects), then it must make an appropriate assessment of the implications for that site in view of the site's conservation objectives. Regulation 24(2) provides that in light of the conclusions of the assessment, the appropriate body (NRW in this case) may give consent for the operation “only after having ascertained that the plan or project will not adversely affect the integrity of the site.”
NRW on 5 January 2021 granted consent C000886/1 (the consent) to the interested party (WVC) to launch canoes onto the river from a boat house at Glasbury, which is several kilometres upstream from Hay. The precise terms of the consent, so far as relevant, are as follows:
“As owner/occupier of land within the above site(s), may carry out, or cause or permit to be carried out the operation(s) specified below in the manner prescribed. Launching up to 40 canoes, 20 kayaks and 5 paddle boards a day from the boat house between the hours of 9.30 to 13.30.”
The consent is subject to conditions, the third of which is in these terms:
“Boats must not be launched when frequent grounding is likely in the passage downstream to Hay. It is recognised that channel conditions will vary from season to season and that some craft are more likely to get stuck than others during low water periods.”
The reason stated for that condition is stated thus:
“To avoid damage and deterioration to the riverbed, gravel shoals and water crowfoot beds,”
The claimant owns land and fishing rights downstream of Glasbury where people who hire WVC's canoes paddle. He is member of Clyro Court and Hay Castle fishing syndicate and a supporter of and advisor to the Wye and Usk Foundation (WUF). He seeks to challenge by way of judicial review the lawfulness of the decision to grant the consent on five grounds. Permission to do so was refused on consideration of the papers by Steyn J. He renewed his application for permission at an oral hearing before me and this is my decision on that application.
At the heart of the claimant's challenge is the claim that in making the decision to grant the consent, NRW did not fulfil its obligations under the Habitats Regulations to be satisfied beyond all reasonable doubt that where there is a likely significant effect on the site, mitigation will be effective.
NRW undertook such an appropriate assessment. Its conclusions included that likely significant effects on the integrity of the site could not be ruled out because the impact pathway (from the launching of canoes) would damage or disturb the designated species features. Accordingly, mitigation measures were required, specifically during periods of very low flow in late May to early June, as spawning gravels used by sea lamprey between Glasbury and Hay were being damaged and disturbed by canoes grounding or being dragged.
That is the particular harm which concerns the claimant, and is the harm which condition 3 seeks to prevent, but the claimant maintains that that condition is imprecise, subjective and ineffective. He says that the condition should have specified that no boats were to be launched if the water level was lower than 0.67 meters shown on the gauge at Glasbury Bridge. That is the low water level chosen for this stretch of the river by WUF in a document dated July 2020 relating to access to the river. However, the precise basis for that figure is unclear.
The approach which competent authorities must take in deciding whether to give consents such as these, and which courts must take in reviewing that decision making process, has been summarised by Jay J in two recent authorities Wealden District Council v Secretary of State for Communities and Local Government Housing and others [2017] EWHC 351 (Admin) and R(Wyatt) v Fareham District Council and others and Natural England [2021] EWHC 1434 (Admin). In paragraphs 29–39 of the latter judgment, Jay J summarised the relevant principles as follows:
“First of all, it is necessary to underscore the distinction between the degree of rigour the local planning authority must apply to the consideration of its HRAs and the approach this court must take as the reviewing body: the two processes must be kept distinct…
Secondly, the CJEU has stated on a number of occasions that appropriate assessments must be based on “the best scientific knowledge in the field” ( Holohan v An Bord Pleanála (Case C-461/17) [2019] PTSR 1054 at para 33) which is both up-to-date and not based on the bare assertion of an expert (on the latter point, see Smyth v SSCLG [2015] EWCA Civ 174; [2015] PTSR 1417, at para 83).
Thirdly, the absence of adverse effects must be established at the point of consent, which in the present context means the date the appropriate assessment is made ( Cooperatie Mobilisation for the Environment UA, Vereniging Leefmilieu v College van Gedeputeerde Staten van Limburg (Case C-293/17) [2019] Env LR 27 (the “Dutch Nitrogen case”), at para 94 of the opinion of Advocate General Kokott).
Fourthly, a high standard of investigation is demanded in line with the precautionary principle. This has been stated and reiterated in a large number of cases, including in particular Waddenzee (Case C-127/02) [2004] Env LR 14 and the Dutch Nitrogen case. In Waddenzee, Advocate General Kokott stated that the burden on the competent authority was to prove that there would be no adverse effects, not to a standard of absolute certainty but to being “at least satisfied that there is no reasonable doubt as to the absence of adverse effects on the integrity of the site concerned”. A requirement of absolute certainty would be impossible of scientific attainment as well as being disproportionate (see paras 99, 104, 107 and 108). The ECJ accepted the Advocate...
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