ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN BIRMINGHAM
HHJ David Cooke
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MCFARLANE
LORD JUSTICE BEATSON
| The Queen on the application of Nigel Mott
|- and -
|- and -
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
Crown Copyright ©
Lord Justice Beatson :
II. The legislative framework
III The factual background
"hereby grant and 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 trank shown with a red line on the plan marked 'B'… "
The certificates referred to in the lease declared the putcher rank to be a "Privileged Engine" for the purpose of the 1861 and 1865 Acts.
IV. The policy and regulatory background and the evidence
"We are content that the three studies provide evidence that the Severn Estuary Fishery exploits salmon from at least the three principal rivers and it therefore a mixed stock. The genetic study [the Exeter report] has quantified a probabilistic 'most likely' assignment of fish to home river. Many of the estuary fishermen accept the mixed stock findings but feel that the proportion of fish from each river remains open to debate, as the consultation demonstrated. The [Agency's] view is that the estuary clearly hosts a mixed stock fishery and the proportions are the best evidence we have currently so should be used."
Paragraph 2.6 stated:
"As with all models there are uncertainties associated with the data used to make our assessment".
The document considered uncertainties from undeclared catches, undeclared effort, exploitation rates, and the possible existence of a run of fish out of season and gave reasons for considering that they were not significant.
"derived from the ten year average residual mortality in the River Wye rod fishery, assuming that full catch and release fishing had been in place. We then use the best available evidence (the genetic analysis of salmon caught in the estuary fisheries) to extrapolate the residual mortality to set a commensurate [total annual catch] for the net fisheries. This helps us to achieve equity between the rods and nets. The analysis of genetic samples taken in 2010 net fishery indicates the most likely origin of 54% of the adult salmon was the River Wye".
V Procedural history
Ground 1: The imposition of catch limits in the 2012 and 2013 licences which deprived Mr Mott of his livelihood was irrational;
Ground 2: The level of the limit on catch imposed was wholly disproportionate to the alleged environmental benefit and the system of licence fees levied by the agency, and was therefore unlawful;
Ground 3: The decision effectively deprived Mr Mott of his livelihood and was an unlawful interference with his peaceful enjoyment of his possessions as protected by A1P1;
Ground 4: The Agency's reasons for imposing a limit on the catch in the 2012 and 2013 licences were not adequate or intelligible.
VI The Judgment
(1) The phrase "predominantly mixed stocks" in the government policy (see  above) to phase out over an appropriate timescale fishing in fisheries which can be shown to exploit predominantly mixed stocks referred to a stock which is predominantly not from a single river. See .
(2) The Agency was entitled to consider the Exeter report, and was bound to form a considered view as to what conclusions could be properly drawn from it but was required to take account of the criticisms Mr. Mott as a layman had made of it and to consider in the light of those criticisms the report was credible or reasonably supported the conclusions drawn from it for the purposes of the decision. See  and .
(3) It was likely that, where experts had maintained their view notwithstanding criticisms by a layman who inevitably had less expertise on the technical issues addressed, the decision-maker could rely on the expert's view but this was not inevitable. In principle it was possible that a non-expert view of an expert's opinion raises matters that cast sufficient doubt that the only rational response of a decision taker is that it is not proper to rely on the expert's view, either at all or without seeking further advice. See .
(4) Mr. Mott's lay criticism that the Agency's conclusion that 56.4% of fish caught at Lydney could be estimated to have originated from the Wye and that a similar percentage would have otherwise returned to the Wye to spawn was obviously incredible was "well justified". This was because:"The conclusion that fishing in the upper Severn estuary has a significantly greater effect on the River Wye than the Severn itself should have been immediately startling and have caused the Agency to examine whether it could be correct. As Mr. Mott points out in his evidence, the Agency's own estimate is that the annual salmon run in the Severn is between 10-15,000 fish. It has no estimate for the Wye, but the figure must be smaller bearing in mind that (a) it is a smaller river and (b) the Agency's assessment is that stocks in the Wye were more imperilled than those in the Severn. And yet, as he says in his first witness statement (paras 10-11) if it was the case that of the salmon present at Lydney 19 times as many were destined to return to other rivers, overwhelmingly the Wye and Usk, rather than the Severn, those rivers would be "teeming with salmon" when they plainly are not."The judge then stated that, on the basis of the figures relied on by the Agency "at least 55,000 fish would be present in the Wye". He considered that "given the Agency's concern about low stocks in the Wye, it plainly and obviously cannot be the case that there are 55,000 salmon returning to it to spawn, let alone more" and that "[t]his impossible contradiction should have been immediately apparent to the Agency if it had taken an objective look at the implications of the conclusions they drew". See   and .
(5) Mr. Crundwell's suggestion that fish from the Severn would travel straight up the river whereas those from other rivers finding themselves at Lydney might pass up and down that part of the estuary several times (and so be more likely to be caught in the putchers) before going downstream to their native river is "no more than conjecture and rationalisation long after the decisions under challenge were taken". This was not mentioned in any of the HRAs and Mr Crundwell did not set out any basis on which the size of such an effect it could be estimated. It would have to be a very large effect indeed to account for the figures taken from the Exeter report. See .
(6) The Agency had imposed the 2012 conditions on the basis that a particular proportion of the fish caught at Lydney would otherwise have returned to the Wye and it was necessary to impose a restriction such that the loss of that proportion of the reduced permitted total catch would have no adverse effect on the Wye fishery. The judge rejected the Agency's argument see ) that it was simply the high likelihood of the Severn estuary hosting a mixed stock fishery that led it to impose the 2012 conditions so that it was not necessary to know the precise proportion of the Lydney catch that would otherwise have returned to the Wye so long as some number, however, small, would have done so. See  -  and .
VII The Agency's grounds of Appeal
(1) The judge erred in concluding that the Exeter report provided no reasonable basis for the "catch limits" in the decisions because he relied not on any expert evidence to the contrary but exclusively on criticisms made by Mr Mott and upon his own observations and assumptions about the migratory behaviour of salmon. Both Mr Mott's criticisms and the judge's observations and assumptions about the migratory behaviour of salmon are misconceived.
(2) The judge's decision that it followed from his conclusion that the limits in the three decisions challenged were not rational meant that there was therefore a disproportionate interference with Mott's under A1P1 was also erroneous. It is submitted on behalf of the Agency that the judge erred in concluding that the conditions were "closer to deprivation that mere control" and thus required compensation to be paid to Mr Mott to ensure compliance with A1P1. On the relevant authorities, the conditions imposed were only a control on his possession and not a deprivation because his leasehold interest remained.
(3) The judge erred in his supplementary judgment in allowing Mr Mott to amend his claims to include a claim in damages for the breach of his A1P1 rights.
VIII The application to adduce further evidence
IX Wednesbury unreasonableness and rationality
X Article 1 of Protocol 1
"the court considers that it must look behind the appearances and investigate the realities of the situation complained of … Since the Convention is intended to guarantee rights that are 'practical and effective' … it has to be ascertained whether that situation amounted to a de facto expropriation …".
It has also been stated (Fredin v Sweden (No 1) (1991) 13 EHRR 784 at  ff) that there will be a deprivation if the owner of property is deprived of all meaningful use of it, although not if the owner remains free to sell it.
"The right analysis seems to us to be that provided the state could properly take the view that the benefit to the community outweighs the detriment to the individual, a fair balance will be struck, without any requirement to compensate the individual. Should this not be the case, compensation in some appropriate form may serve to redress the balance, so that no breach of Article 1P1 occurs."
He, however, stated (at ) that, "given the purpose and genesis of the [Wildlife and Countryside Act 1981 as amended], and the jurisprudence of the ECtHR", the absence of compensation "cannot of itself justify an argument that there has been an infringement of the Article 1P1 rights of the owner of an SSSI whose value has been substantially diminished as a result of the amendments effected by the 2000 Act".
XI The late amendment to the claim
Lord Justice McFarlane:
The Master of the Rolls: