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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Bruton, R (on the application of) v Attorney General to the Prince of Wales & Ors  EWHC 1652 (Admin) (19 May 2009)
Cite as:  EWHC 1652 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF|
|(1) THE ATTORNEY GENERAL TO THE PRINCE OF WALES (sued as THE ATTORNEY GENERAL TO THE DUKE AND DUCHY OF CORNWALL)|
|(2) NATURAL ENGLAND||Defendants|
|(1) ENVIRONMENT AGENCY|
|(2) MARINE AND FISHERIES AGENCY|
|(4) DUCHY OF CORNWALL OYSTER FARM LIMITED||Interested Parties|
WordWave International Limited
A Merrill Communications Company
265 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
Jonathan Crow QC and Martin Chamberlain (instructed by Farrer & Co) appeared on behalf of the First Defendant
Graham Machin (instructed by Matthew Boyer Solicitors) appeared for the Second Defendant
The Interested Parties were not represented and did not attend
Crown Copyright ©
The Habitats Directive contains obligations, in Article 6, on Member States, in respect of SACs. The relevant articles in issue before me are:
"6(2) Member States shall take appropriate steps to avoid any special areas of conservation, the deterioration of natural habitats and the habitats of species, as well as disturbance of the species for which the area has been designated, in so far as such a disturbance could be significant in relation to the objectives of this Directive.
6(3) Any plan or project not directly connected with or necessary to the management of the site, but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site, in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site … the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public."
"(1) The requirements of-
(a)regulations 48 and 49 (requirement to consider effect on European sites [that is a reference to the SAC]), and
(b)regulations 50 and 51...
apply, subject to and in accordance with the provisions of regulations 54 to 85, in relation to the matters specified in those provisions."
"(1)A competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which-
(a)is likely to have a significant effect on a European site in Great Britain (either alone or in combination with other plans or projects), and
(b)is not directly connected with or necessary to the management of the site
shall make an appropriate assessment of the implications for the site in view of that site's conservation objectives."
"The Secretary of State, the Minister of Agriculture, Fisheries and Food and the nature conservation bodies shall exercise their functions under the enactments relating to nature conservation so as to secure compliance with the requirements of the Habitats Directive."
Regulation 3(4) says:
"Without prejudice to the preceding provisions, every competent authority in the exercise of any of their functions, shall have regard to the requirements of the Habitats Directive so far as they may be affected by the exercise of those functions."
"For the purposes of these Regulations the expression 'competent authority' includes any Minister, government department, public or statutory undertaker, public body of any description or person holding a public office."
"52.As regards the concept of appropriate assessment within the meaning of Article 6.3 of the Habitats Directive, it must be pointed out that the provision does not define any particular method for carrying out such an assessment.
53.Nonetheless, according to the wording of that provision, an appropriate assessment of the implications for the site concerned of the plan or project must precede its approval and take into account the cumulative effects which result from the combination of that plan or project with other plans or projects in view of the site's conservation objectives.
54.Such an assessment therefore implies that all the aspects of the plan or project which can, either individually or in combination with other plans or projects, affect those objectives must be identified in the light of the best scientific knowledge in the field..."
"I conclude that any reliance, if any, by the council under Regulation 48 is, by virtue of Regulation 47, erroneous in law."
So the point is found against the Claimant.
"However, it makes little practical difference because Mr Howell QC accepts that Article 6(3) is determinative of this issue if it applies."
He went on to consider Article 6(3).
"Nothing in regulation 48(1)... requires a competent authority to assess any implications of a plan or project which would be more appropriately assessed under that provision by another competent authority."
"Only triploid spat will be used in the oysterage. Although 100 per cent triploidy cannot currently be guaranteed, using triploid spat will significantly reduce the risk of successful spawning."
Then it continued later:
"We will work with the applicant to finalise a management plan for the oysterage which ensures there will be no adverse impact on the SAC."
"Since Pacific oysters are already present in the Fal and Helford [region] (spawned from stock lai[d] in the 1970s) we advised that in order to undertake cultivation only infertile triploid stock should be used to control the potential for spawning and settlement...
The lessee applied for European fisheries funding, which was granted, conditional, at Natural England's request, on using triploid oyster spat, monitoring the impacts of the oyster farm and finalising a management plan for the oysterage to ensure there will be no adverse impact on the SAC."
"Subtidal cage cultivation of Pacific oysters will reduce the risk of spawning by placing diploid stock in 2007 and 2008 at low stocking densities in the deeper, cooler part of the cultivation site, and not moving or disturbing the cages during July and August... This will ensure that spawning risk is minimised. While diploid halfware is being grown on the marketable size, triploid spat will be grown on in the river, such that marketable triploid stock will be available from 2009 onwards. By 2009, all Pacific oyster stock being cultivated in the river must be triploid and cultivated subtidally to use best available techniques to minimise the risk of spawning and successful spat settlement. Any future proposal to use diploid stock will need to demonstrate... that spawning can be controlled to similar or better levels than are achievable using triploid stock."
"... the fishery's activities involve practices such as dredging and trawling which are currently prohibited in the SAC in relation to scallop fishing owing to the sensitive nature of the habitat. There is clearly a problem."
"4. Having regard to the financial resources of the applicant and the respondent, and to the amount of costs that are likely to be involved, it is fair and just to make the order.
5. If the order is not made, the applicant will probably discontinue the proceedings and will be acting reasonably in doing so."
So far as 4 and 5 are concerned, in our submission those are perfectly obvious. The current position is that your Lordship has already made an order.