Conservation – Protected site – Natural habitats – Ferry operator introducing new type of ferry on established route – River conservation group challenging decision as failing to take account of EC Habitats Directive — Whether proposal to introduce new ferries constituting plan or project within directive — Whether competent authority existing for purposes of directive — Whether operator carrying out appropriate assessment of effect of new ferries on protected sites — Whether directive properly transposed into UK law at time of decision — Declarations granted
The second defendant (W) was the statutory harbour authority for the ferry terminal at Lymington Pier and operated ferries on three routes between the mainland and the Isle of Wight. In February 2009, it decided to introduce a new class of ferry, the W class, on the route between Lymington and Yarmouth. The salt marshes and mudflats in the area had been designated as part of a wetland of international importance. The river also ran through three sites of special scientific interest.
The claimants, on behalf of the Lymington River Association (LRA), applied for judicial review of that decision on the basis that it had been made and implemented in breach of Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (the Habitats Directive) and the Conservation (Natural Habitats, &c) Regulations 1994, by which the Habitats Directive was implemented. They further contended that the first defendant had failed properly to implement article 6(2) of the Habitats Directive, in that there appeared to be inadequate or no regulatory powers preventing W from introducing the W class ferries. The Lymington harbour commissioners (the first interested party) and Natural England (the second interested party) became involved when the second defendant informed them of its decision.
Article 6 of the Habitats Directive imposed general obligations regarding the conservation of areas designated as special areas of conservation, and provided a form of development regime, which stipulated when and on what basis “plans and projects” that would negatively affect sites might or might not be permitted by a “competent authority”. Article 6(3) provided that any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon should be subject to an appropriate assessment of its implications in view of the site’s conservation objectives.
The claimants sought declarations that: (i) the proposal to introduce the W class ferries was a plan or project under the Habitats Directive; (ii) there was competent authority within the directive; (iii) an appropriate assessment of the effect of the ferries on the protected sites had not been carried out; and (iv) the directive had not been effectively transposed into UK law at the time the decision was implemented in February 2009.
Held: The declarations were granted.
(1) The introduction of the W class ferries was a project within the ambit of article 6(3). On 12 February 2009, the second interested party formally advised that the ferries would not have an adverse effect on the protected sites. A decision maker considering whether the proposed introduction of the ferries was a plan or a project within the meaning of the Habitats Directive and the 1994 Regulations would have been bound to conclude that the risk of significant adverse effects on the protected sites could not be excluded, and, consequently, the requirement for an appropriate assessment would be triggered.
(2) The only competent authority at that time was the second defendant. In the discharge of its functions as statutory harbour authority, it was not only obliged to have regard to conservation objectives but was also obliged, by regulation 3(4) of the 1994 Regulations, to have regard to the requirements of the Habitats Directive so far as they might be affected by the exercise of those functions. As the harbour authority the second defendant was in a position to authorise and control the use of the W class ferries on the route, and, therefore, their effect on the designated sites. Its decision to introduce the new ferries was made in discharge of its functions as harbour authority, and thus had to comply with its obligations under the Habitats Directive and 1994 Regulations.
(3) In the absence of a reasoned decision, the court could not be satisfied that the second defendant had treated the formal advice from the second interested party with the respect it deserved and that it could properly have concluded that the introduction of the new ferries would not adversely affect the protected sites. The position of the second defendant as competent authority was analogous to that of a planning authority, and its decision-making process should have been made clear in the record of its decision. Further, the second defendant failed to recognise both that it had to carry out the appropriate assessment and that the question was not simply whether it was satisfied, in the light of the report from the second interested party, that the introduction of the new ferries would not have an adverse effect on the integrity of the sites. In reality, the decision was influenced by commercial considerations that overrode, or at least influenced, the discharge of the second defendant’s public duties as competent authority. In all the circumstances, the decision allowing the introduction of the W class ferries was fatally flawed and therefore unlawful.
(4) The Habitats Directive had not been fully and properly transposed into UK law. Had consideration been given to the possible adverse effects of marine operations on protected sites, many of which were coastal, there would have been no deficiency in the regulations that this case had brought to light. If the directive had been fully and properly transposed, the first defendant would have had the power to make a special nature conservation order to protect the sites from the risk of significant adverse effects. An amendment to the 1994 Regulations to rectify the lacuna identified in those regulations had taken effect on 1 October 2009. However, it could not be assumed that if the first defendant had had the powers conferred by the amendment, it would have exercised them to prevent the introduction of the new ferries in February 2009.
William Norris QC and Justine Thornton (instructed by Richard Buxton Environmental and Public Law, of Cambridge) appeared for the claimants; Stephen Tromans QC and Colin Thomann (instructed by the legal department of the Department for Environment, Food and Rural Affairs) appeared for the first defendant; Richard Drabble QC and Stephen Morgan (instructed by Bircham Dyson Bell LLP) appeared for the second defendant; Gregory Jones (instructed by Lester Aldridge LLP, of Southampton) appeared for the first interested party; the second interested party did not appear and was not represented.
Eileen O’Grady, barrister
