Environment – Human rights – Fishing rights – Respondent owning leasehold right to fish for salmon using ancient method known as “putcher rank” – Appellant imposing limits on numbers of salmon to be caught using putchers – Limit based on lowest catch sought by any licence holder in past 10 years – Whether appellant’s decision irrational – Whether an unlawful interference with respondent’s right to peaceful enjoyment of possessions under Article 1 of First Protocol to European Convention on Human Rights – Appeal allowed in part
The respondent and the interested party were the leasehold owners of a right to fish for salmon at Lydney, in the Severn estuary, using a putcher rank. The use of putchers was an ancient method of fishing in which conical baskets were used to trap adult salmon as they made their way back from the sea to the river of their birth to spawn. Prior to 2011, that method of fishing was an “historic installation” excepted from the statutory power of the appellant, as the body responsible for issuing fishing licences, to impose limits on the number of fish caught. That position changed early in 2011, when para 14A was introduced into Schedule 2 to the Salmon and Freshwater Fisheries Act 1975. From 2012 onwards, the appellant imposed an annual limit on the number of salmon that could be caught using a putcher rank, with the limit based on the lowest catch sought by any holder of a historic installation licence in the past 10 years.
Before the introduction of the limit, fishing for salmon was the full-time occupation of the respondent and the interested party, who caught about 600 salmon a year and sold them for a gross income of about £60,000 per year. Thereafter, the “catch conditions” imposed on their licences reduced the permissible catch by about 95%; the limits were 30 salmon per year in 2012, 23 in 2013 and 24 in 2014.
The appellants considered that the imposition of the conditions was necessary for the protection of the salmon fisheries in the river Wye, which was designated as a special area of conservation under Council Directive 92/43/EEC (the Habitats Directive). Its assessment, largely based on conclusions drawn from a research report, was that the fishery in the river Wye was at risk of not achieving its spawning targets and of becoming unsustainable and that the salmon caught in the Severn estuary included salmon that originated in the river Wye and would otherwise spawn in that river.
The appellant’s decisions were quashed in judicial review proceedings brought by the respondent. The judge held that the decision to impose the catch limits was: (i) irrational, owing to flaws in the research report on which it was based; and (ii) an unlawful interference with the respondent’s right to the peaceful enjoyment of his possessions under Article 1 of the First Protocol (A1P1) to the European Convention on Human Rights. The judge also gave permission for the respondent 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: see [2015] EWHC 314 (Admin). The appellant appealed.
Held: The appeal was allowed in part.
(1) While a regulatory body such as the appellant was entitled to deploy its experience, technical expertise and statutory mandate in support of its decisions, and to expect a court considering a challenge by judicial review to have regard to that expertise, it was also necessary for the decision-maker, when faced with such a challenge, to provide a clear explanation to the court. A reviewing court needed to be given a sufficient explanation by a regulator operating in a technical or scientific area of how the science related to its decision, so that the court could consider whether it embodied an abuse of discretion or an error of law. In the instant case, the appellant had not adduced evidence to counter the respondent’s own lay evidence criticising the figures in the research report. In those circumstances, it was understandable that the judge had sought to make an educated guess on a number of matters.
(2) However, in doing so, the judge had fallen into error and strayed beyond what was proper for a reviewing judge dealing with complex scientific material. He had not accorded sufficient weight to the nature of the exercise or the expertise of the appellant. The appellant’s decisions were made against an unchallenged assessment as to the risk to the river Wye and a background assumption, on which there was scientific consensus, that salmon returned to their river of origin to spawn. The decisions were then the result of an amalgam of assessments which were in part factual and in part predictive in nature. They also involved a consideration of other factors, such as how to balance the interests of those primarily affected with the wider public interest, and how factors such as the “heritage installation” aspect should be factored into the decision; the decisions were, in that sense, polycentric.
A judicial review court, when considering a challenge to the decision of the designated statutory regulator that was the result of an evaluation of assessments made using scientific material, should be very slow to conclude that the expert and experienced decision-maker assigned the task by statute had reached a perverse scientific conclusion. That was all the more so when the conclusion in question involved an educated prediction as to what might happen in the future: British Union for the Abolition of Vivisection v Secretary of State for the Home Department [2008] EWCA Civ 417, Secretary of State for Environment, Food and Rural Affairs v Downs [2009] EWCA Civ 664 and R v Director General of Telecommunications, ex parte Cellcom Ltd [1999] ECC 314 applied.
A judge considering a judicial review of a scientific topic should not engage in a detailed examination of the merits of an approach and the accuracy of calculations based on models. It had been inappropriate for the judge in the instant case to enter into an analysis of the reliability of the scientific evidence and the models used and to undertake calculations of his own. It made no difference that the research report on which the appellant based its decisions had been subject to certain criticisms. A judge was not entitled, in a case where there was no scientific consensus and there were differences of view, to substitute his own view for that of the decision-maker. The judge’s conclusion that the appellant’s decision was irrational should therefore be set aside.
(3) However, assuming that the appellant could properly impose the total catch limits that it did, its decision was still an unlawful interference with the respondent’s A1P1 rights. The catch limits were nearer to deprivation of the respondent’s property than control of his use of it, given that they eliminated at least 95% of the benefit of the respondent’s right to fish using his putchers. Even if the interference was only a “control”, the fact that it was made on environmental grounds did not mean that any restriction could be made without compensation. The principle of “fair balance” applied: R (on the application of Trailer & Marina (Leven) Ltd) v Secretary of State for the Environment [2004] EWCA Civ 1580 applied. There was no evidence that the appellant had considered the extent of the effect of the catch conditions on the respondent and his livelihood. The appellant’s chosen method of levelling all permitted catches down to the previous lowest meant that by far the greatest impact fell on the respondent. Others, whose rights were less extensive and who might have used their putchers only for leisure or hobby purposes, would be much less affected. In those circumstances, even if the appellant could properly have imposed the total catch limit that it did, the extent of the limit and the way that it was apportioned meant that, in the respondent’s case, a breach of A1P1 could only be prevented by payment of compensation. The judge had not erred in allowing the respondent to include a claim in damages for the breach of his A1P1 rights.
Gwion Lewis (instructed by the legal department of the Environment Agency) appeared for the appellant; David Hart QC and Mark Beard (instructed by Simon Jackson Solicitors, of Oswestry) appeared for the respondent.
Sally Dobson, barrister
Click here to read a transcript of R (on the application of Mott) v Environment Agency