Deepdock Ltd & Ors, R (on the application of) v The Welsh Ministers [2007] EWHC 3347 (Admin)

[2007] EWHC 3347 (admin)CO Ref CO/5641/2006
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue CARDIFF CIVIL JUSTICE CENTRE, 2 PARK STREET, CARDIFF CF10 1ETDate Date: 30 OCTOBER 2007
Before
HIS HONOUR JUDGE HICKINBOTTOMSITTING AS AN ADDITIONAL JUDGE OF THE HIGH COURT
Between
THE QUEEN ON THE APPLICATION OFClaimants(1) DEEPDOCK LIMITEDClaimant(2) MYTI MUSSELS LIMITEDClaimant(3) EXTRA MUSSEL LIMITEDClaimant(4) OGWEN MUSSEL LIMITEDClaimant(5) ANDREW WILSONClaimantTHE WELSH MINISTERSDefendants(1) ISLE OF ANGLESEY COUNTY COUNCILInterested Parties(2) ANGLESEY BOAT COMPANY LIMITEDInterested Party(3) THE NORTH WESTERN AND NORTH WALES SEA FISHERIES COMMITTEEInterested Party(1) ISLE OF ANGLESEY COUNTY COUNCILClaimants(2) CROWN ESTATE COMMISSIONERSClaimant(1) THE WELSH MINISTERSDefendants(2) THE NORTH WESTERN AND NORTH WALES SEA FISHERIES COMMITTEEDefendant(3) ANDREW WILSONDefendant(4) EXTRA MUSSEL LIMITEDDefendant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
ADAM LEWIS (instructed by Andrew M Jackson, Solicitor) appeared for Deepdock Limited, Myti Mussels Limited, Extra Mussel Limited, Ogwen Mussel Limited, Andrew Wilson, and the North Western and North Wales Sea Fisheries CommitteeEMMA DIXON (instructed by Alan Carr, Solicitor) appeared for Isle of Anglesey County Council and the Crown Estate CommissionersCLIVE LEWIS QC (instructed by the Treasury Solicitor) appeared for National Assembly of Wales and the Welsh Minister for the Environment, Planning and Countryside. for The Anglesey Boat Company Limited did not appear.Judgment

Introduction

[1]These claims concern the proposed development of a marina at Gallows Point, Beaumaris, Anglesey by the Anglesey Boat Company Limited (“the Anglesey Boat Co”).[2]The proposed development would involve the building of rubble-mound breakwaters placed direct onto the sea bed, the dredging of the sea bed to provide a mooring basin, the formation of a reclamation along the shore for parking and boat storage and the installation of mooring pontoons in the sea bed: which themselves would require the deposit of considerable debris (iron, steel, sand, silt, stone, rock and gravel) in the sea and on the sea bed. The sea at Gallows Point and the surrounding area is productive for mussel farming, and in these proceedings it is alleged by those who farm there that those deposits will considerably interfere or destroy the marine environment in which their business thrives. These proceedings particularly concern the validity of the decision of 11 April 2005 of the Welsh Minister for Environment, Planning and Countryside (“the Welsh Minister”) (on behalf of the National Assembly for Wales, “the National Assembly”) to grant a licence to the Anglesey Boat Co under Section 5 of the Food and Environment Protection Act 1985 (“the 1985 Act”) to permit the deposit of materials in the sea at the development site.

Background

[3]Gallows Point is located on the Isle of Anglesey on the north coast of the Menai Strait.[4]Although there are issues as to its basis and extent, the Isle of Anglesey Council (“Ynys Môn”) claim ownership of the foreshore at Gallows Point: and the Crown Estate Commissioners (“the Crown Estate”) claim ownership of the adjacent sea bed, which has been leased to Ynys Môn.[5]The waters immediately off the point, in which the marina is proposed to be built, are within the sea fisheries district of the North Western and North Wales Sea Fisheries Committee (“the Fisheries Committee”), constituted under the North Western and North Wales Sea Fisheries District Order 1999 (SI 1999 No 1043) made under Sections 1 and 2 of the Sea Fisheries Regulation Act 1966. The Fisheries Committee claim a right of oyster and mussel fishery over a designated part of the foreshore and sea bed of the Menai Strait, including the proposed site of the marina. Under the Menai Strait Oyster and Mussel Fishery Order 1962 (“the 1962 Order”), the Fisheries Committee has concluded a number of leases with mussel farming companies in the respect of the fishery, including Deepdock Limited, Myti Mussel Limited, Extra Mussel Limited, Ogwen Mussel Limited and Andrew Wilson (“the Mussel Farmers”) which effectively grant them exploitation rights.[6]In 1999 the Anglesey Boat Co applied to Ynys Môn for planning consent for the construction of a yacht marina at Gallows Point. On 2 March 2000, the National Assembly called in the application under Section 77 of the Town and Country Planning Act 1990, so that the application was dealt with by the Assembly rather than the local planning authority. Following an extensive enquiry, on 29 July 2002 the planning inspector recommended the application be refused on the ground, amongst others, that “… the environmental impact of the proposals on the landscape of importance and the existing mussel farming industry would be one of considerable harm”. However, later that year, the National Assembly reversed the findings of the planning inspector and gave planning consent for a 400-berth marina to be built.[7]No work has yet begun. The Anglesey Boat Co is currently obtaining the various statutory permissions it requires to progress. Those include permission under the 1985 Act to deposit materials on the sea bed necessary for the construction works to proceed. The Anglesey Boat Co made the appropriate application under Section 5 of that Act on 7 February 2003. Under Section 24, the relevant licensing authority was “… whichever of the Ministers is responsible for fisheries in the place where an operation to which a licence would relate would be… carried out or commenced”. Fisheries being a devolved function, under Article 2 and Schedule 1 of the National Assembly for Wales (Transfer of Functions) Order 1999 (SI 1999 No 672) the power to issue licences became exercisable by the National Assembly - which delegated that function to the Welsh Minister.[8]The Welsh Minister’s normal practice in respect of applications under the 1985 Act was to handle them through the Marine Consents and Environment Unit of the Department for the Environment, Food and Rural Affairs (“the MCEU”), a cross-departmental unit of the Westminster Government whose specific remit included acting on behalf of licensing authorities in respect of 1985 Act applications.[9]The MCEU therefore dealt with the February 2003 application by the Anglesey Boat Co, which relied upon the same environmental statement submitted as part of the planning process. In July 2004, the MCEU produced a draft report recommending the application be refused because of “the substantial adverse impact the construction and operation of the marina would be expected to have on the important and valuable mussel fishery”; and “substantial concerns relating to the robustness of the environmental statement”. However, rather than simply acting on this advice and recommendation, the Welsh Minister decided to take charge of the application himself: and, on 20 December 2004, his department wrote to the Anglesey Boat Co indicating that the National Assembly was “minded to approve the… application, subject to further technical analysis”. There was a period of consultation (29 December 2005 to 16 February 2006), after which the Environment - Conservation and Management Unit within the National Assembly Government sent a submission to the Welsh Minister indicating that “the advice is very finely balanced”, but recommending the granting of a licence. The Welsh Minister took the decision to grant the licence on 11 April 2006, the licence in fact being dated the following day. It is that decision which lies at the heart of these proceedings.

The Proceedings

[10]On 10 July 2006, the Mussel Farmers commenced judicial review proceedings in the Administrative Court in London against the National Assembly and the Welsh Minister challenging the decision to grant the licence on the grounds that the deposit of the materials it authorised:(i) would involve a crime under Section 7(4) of the Sea Fisheries (Shellfish) Act 1967, which makes it a criminal offence to damage or interfere with fisheries granted under Section 1(3) of that Act (the statutory successor to Section 29 of the Sea Fisheries Act 1868):(ii) would interfere with the rights of the Mussel Farmers granted under 1962[11]On 11 January 2007, on appeal from a refusal, Auld LJ granted permission to judicially review.[12]However, in the meantime Ynys Môn and the Crown Estate (as owners of the relevant foreshore and sea bed) had issued separate declaratory proceedings in the High Court in London against the National Assembly, the Fisheries Committee and some of the Mussel Farmers in which they contended that:(i) the 1962 Order is ultra vires the Sea Fisheries Act 1868 under which it was purportedly made: and(ii) even if the 1962 Order is intra vires, on its proper interpretation the rights of the Mussel Farmers are subject to the rights of Ynys Môn and the Crown Estate to build on the sea bed which they own.[13]On 3 October 2007, at Cardiff Civil Justice Centre I held a case management conference in both sets of proceedings at which I transferred the declaratory proceedings to the Administrative Court, joined them with the claim for judicial review, and gave various procedural directions in relation to evidence. I formally substituted the Welsh Ministers as parties in the stead of the National Assembly and the Welsh Minister (pursuant to Section 162 of and Schedule 11 to the Government of Wales Act 2006). Following considerable debate, I also ordered that the claims be heard in North Wales (at either Llangefni or Caernarfon) on 3 March 2008, with a time estimate of 5 days. Given the contention over venue, I said that I would give a written judgment of my reasons for this direction. This is that judgment.

The Venue Issue

[14]At the case management conference, for reasons I shall come to in due course, Mr Clive Lewis QC for the Welsh Ministers sought an order that these claims be heard in Wales. At least initially, the Mussel Farmers, the Fisheries Committee, Ynys Môn and the Crown Estate all sought a direction that the hearing be in London, on three main grounds:(i) The convenience of the parties. It was said that London would be more convenient than Cardiff - it being easier to travel to and from North West Wales to London than to Cardiff.(ii) The convenience of legal representatives, and cost. Each of the parties has instructed solicitors from various parts of England, and they have all instructed London Counsel. Even the Welsh Ministers have instructed the Treasury Solicitor, and retained Leading Counsel from London. Consequently, it was submitted that, not only would it be more convenient for the legal representatives, but the costs of a hearing in London would be less than in Cardiff (because for legal representatives there would be less travelling time and lower travel/accommodation expenses).(iii) The proceedings raise an issue which is of wide importance, namely the vires of the 1962 Order which is in similar terms to several other instruments affecting other fisheries. This issue affects the position of Sea Fisheries Committees in general, and the livelihoods of many mussel farmers and fishermen throughout Great Britain: and it would be more convenient for them to travel to London to hear the proceedings if they wish, rather than to North West Wales. In these circumstances, it was submitted that it was unreasonable that the desire and convenience of one party (the Welsh Ministers) should dictate the venue of the hearing.[15]However, for the following reasons (Paragraphs 16-25 below), I am firmly of the view that these proceedings should be heard in Wales.[16]The submissions of the parties who sought a hearing in London were based upon the assumption that, if the hearing were in Wales, then it could only be in Cardiff. That betrays a fundamental misunderstanding of the Administrative Court in Wales, which in respect of any Welsh case can and will sit in the most appropriate venue available in Wales wherever that might be. Judges and staff responsible for listing Administrative Court matters in Wales are well aware of this, and listings are made accordingly. Those who practice in public law in Wales should be equally aware. Respectfully to borrow a phrase from Richards LJ (see Condron v The National Assembly for Wales [2006] EWCA Civ 1573, [2007] LGA 87 (“Condron”), at Paragraph 110), for the reasons given below these proceedings cry out to be heard in North West Wales, Llangefni or Caernarfon District Registries being the obvious potential venues.[17]The parties who sought a hearing in London had not considered the possibility of a North West Wales venue and therefore had no instructions upon such a venue. However, of the five Mussel Farmers, two are from Anglesey and two are from Bangor on the Menai Straits, the fifth being from Manchester. The Mussel Farmers made it clear that they wished to attend the hearing themselves: they asked for the hearing not to be in December because this is a particularly busy period for them, and they would have difficulties attending a hearing in that period. The Isle of Anglesey Council is based in Llangefni: and, Miss Dixon accepted that, although she could not advocate a position if a hearing in Llangefni or Caernarfon were possible, such a venue would be particularly convenient for Ynys Môn. The Anglesey Boat Co, as its name suggests, is based on the Isle of Anglesey. The Fisheries Committee is based in Lancashire, but its area of remit includes North Wales. For all of these parties, a North West Wales hearing is self evidently more convenient. The Crown Estate is London based, but is used to dealing with issues concerning its land in all parts of Great Britain.[18]Applicants of course have the right to issue claims challenging the decisions of Welsh public bodies in London: that right is expressly preserved by CPR 54 PD3, Paragraph 3.2. However, where a claim is issued is a matter of form. The issuing office is not a factor of any weight in relation to the issue of hearing venue.[19]Parties also have the right to be represented by whomever they choose. These parties have instructed solicitors from diverse parts of England (Hull, Bristol and Cirencester, as well as London). All have retained London Counsel. However, in matters of listing, the convenience of legal representatives is not the factor of greatest weight. Further, whilst cost is an important factor - cost efficiency being an important element of the overriding objective in CPR Rule 1.1 - the extent to which the venue of hearings may be influenced by parties instructing legal representatives in a particular location and then playing the costs card is limited, particularly in public law matters. It is but one factor, and it is tempered by the following: (a) rates for specialist work such as this are likely to be similar wherever the case is managed/heard: (ii) a successful party is likely to recover its costs of the proceedings: and (iii) in the assessment of those costs, if the parties have acted reasonably in appointing the legal representatives they have appointed then they may recover (e.g.) reasonable travel and accommodation costs involved in any hearing. Parties who are involved in challenges to the decisions of Welsh public bodies (including the National Assembly, or local authorities in Wales) must be aware that such cases may be dealt with and heard in Wales.[20]However, in determining the appropriate venue for a public law hearing, regard must be had to factors wider than the convenience etc of the respective parties. These proceedings concern a decision of a Minister of the Welsh Assembly Government on behalf of the National Assembly of Wales, made in Wales under devolved powers. The devolution settlement as a matter of principle transfers political accountability to the organs of devolved government in Wales; and, where a decision of such a body is challenged, the devolved administration is directly accountable through the Courts. The location of the relevant arm of government is in any event a factor that must be taken into account in considering the appropriate venue for proceedings (CPR Rule 30.3(2)(h)). However, although the Procedural Rules only empower the Administrative Court in Wales to deal with claims “concerning the National Assembly for Wales, the Welsh executive or any Welsh public body (including a welsh local authority)” (CPR 54 PD3, Paragraph 3.1), with the increased impetus given to devolved government by the Government of Wales Act 2006 and with increasing powers actually being devolved to the National Assembly for Wales, there is in my view a deepening imperative that challenges to any devolved decisions are (like the decisions themselves) dealt with in Wales. As a matter of administration, timely consideration is now being given to the early establishment of an Administrative Court Office in Wales, that will enable claims concerning the decisions of Welsh public bodies to be administered throughout in Wales. Equally, such cases should be heard in Wales unless there are good reasons for their being heard elsewhere.[21]Just as importantly - and relatedly - the decision at the heart of these proceedings concerns the people of Wales. I have set out the background to these proceedings in some detail to emphasise that the issues raised are of considerable concern to the people of North West Wales. There are substantial local environmental issues. There are issues relating to local employment: as I understand it, the proposed marina development will create a significant number of new jobs, whilst damaging employment in (e.g.) mussel farming and fishery. I was informed by Mr Clive Lewis QC for the Welsh Ministers that, understandably, local interest in the issues raised in these proceedings is considerable: and it is likely that members of the public and local media will wish to attend the hearing in significant numbers. For this case to be heard in London (or, I would add, even Cardiff) would substantially detract from the principle of transparency in justice. Justice should not only be done but be seen to be done: and the administration of civil justice locally is an important principle that we will continue to pursue in Wales.[22]Mr Adam Lewis for the Mussel Farmers and Fisheries Committee submitted that “it is unreasonable that the desires (and not even needs or convenience) of one party out of eight should be allowed to dictate where this case is heard” (Skeleton Argument, Paragraph 17(3)). Insofar as this was intended to suggest that the venue for the hearing proposed by the national government was some sort of whim, with respect that would be entirely unfair. Mr Clive Lewis QC made clear that, although both he and those instructing him (the Treasury Solicitor) were professionally based in London and the relevant limb of the national government was based in Cardiff, the Welsh Ministers firmly considered that this case should be heard in North West Wales, primarily because of the nature of the decision being challenged and the local interest and concern in the issues raised. It appears to me entirely appropriate that the national government of Wales has these factors in mind. They are equally matters that would bear upon the mind of those in local government in Wales whose decisions may be challenged through the courts.[23]I was referred to one case, by each of the parties. Condron (cited at Paragraph 16 above) concerned a decision of the National Assembly to grant planning permission for the carrying out of opencast mining, removal and reclamation at a large site at Ffos-y-Fran, near Merthyr Tydfil. The proposed development generated a considerable amount of local opposition, including that of Mrs Condron. The first instance hearing was heard by Lindsay J in the Administrative Court in London. The appeal was also heard in London. Richards LJ said at the end of his judgment (Paragraph 110):
“A final point I should mention concerns the venue for the hearing of this case both at first instance and on appeal. Both hearings took place in London. Yet there are procedures in place to enable Welsh judicial review cases and similar statutory challenges to be heard in the Administrative Court in Wales…: and there are sittings of the Civil Division of the Court of Appeal from time to time in Wales. In my view the present case cried out to be heard in Wales both at first instance and on appeal, and it is a matter of considerable regret that efforts were not made to have it listed for hearing accordingly. Practitioners and listing officers alike need to be alert to this issue.”
Ward LJ added (at Paragraph 131):
“… I wish to express particular agreement with the postscript to [Richard LJ’s] judgment. If ever there were a case to be heard in Wales, this was it and I repeat my apologies expressed at the conclusion of the hearing to all those who had needlessly to travel to London.”
[24]Albeit from the Court of Appeal, I appreciate that these comments are only judicial dicta. However, the circumstances of Condron and the case before me bear similarities. They both concern proposed developments which provoked strong local views, and attracted a public interest beyond the parties themselves. When Ward LJ apologised for the hearing being in London, he clearly did not have in mind the legal representatives (all of whom came from outside Wales, and the majority of whom practised in London): he was speaking to the parties and other local people who had an interest in the issue raised in the case. Looking at the facts of that action and this, it seems to me that the case for these proceedings being heard in Wales is stronger still than Condron. However, for the reasons I have given, I do not consider that the case for an Administrative Court claim being heard in Wales has to be as overwhelming as Condron and this case before being listed at an appropriate court in Wales. Where a claim is made challenging a decision by a Welsh national or local authority in a devolved area affecting the people of Wales, then such challenges should ordinarily be heard in Wales unless there is good reason for the hearing being elsewhere.[25]That deals with the primary submissions made in relation to venue. I can deal with the other factors relied upon by Mr Adam Lewis quite briefly. (a). He relied upon the fact that these proceedings raise complex issues including issues of human rights (Skeleton Argument, Paragraph 20(5) and (7)). That is true: but, with respect, whilst that may affects the type of judge who should be assigned to hear this case, I do not see how it bears upon venue. Clearly, this case ought to be heard by a High Court Judge of the Administrative Court. (b). He also relied upon the fact that the issue of vires of the 1962 Order would have implications for mussel farmers and fisheries throughout Great Britain (Skeleton Argument, Paragraph 20(1) and (6)), and it is therefore possible that farmers and Sea Fisheries Committees may wish to attend or send representatives to the hearing. Overall, London is likely to be more accessible for them than North West Wales. This appears to be speculative: but, even if true, the possible slight advantage in terms of travel for such people is vastly outweighed by the convenience to the parties and other interested members of the local public and media of having these proceedings heard in North West Wales. (c). Mr Adam Lewis also relied upon the premise that “there is a readier supply of Administrative Court judges in London”. Insofar as he was suggesting that this would mean that the hearing would come on sooner in London than in Wales, this submission is simply incorrect. The Administrative Court in London is under immense pressure, and was unable to give these proceedings a hearing date before Easter 2008. The Administrative Court in Wales is, fortunately, able to be more flexible with available judicial resources: and we were able to offer dates for a hearing in Wales as early as December 2007. Unfortunately, the Mussel Farmers would have found that month difficult because they wished to attend the hearing and December is their busiest period: and I declined to list the hearing for that period as a result. However, the case was still listed in Wales before any dates in London would have been available, i.e. on 3 March 2008 which has now been fixed for the hearing. When giving permission to judicially review, Auld LJ ordered expedition of the hearing: and that the Administrative Court in Wales was able to offer earlier dates for the hearing of these proceedings was another important factor in my deciding that this case should be heard in Wales. (d). Mr Adam Lewis directed me to CPR Rule 30.3(2). Although that rule does not technically apply to an application concerning venue of a public law hearing, I fully accept that the factors listed there should be taken into account in considering the appropriate venue for such hearings. As indicated above, I have taken all of those criteria into account with other relevant. Overall, they firmly point to a hearing in North West Wales in these proceedings.

Conclusion

[26]It was for those reasons that I directed the hearing of these proceedings to be in either Llangefni or Caernarfon. The facilities for hearing the claim are adequate in either of those courts. In my judgment, the case for the issues raised in these claims being heard in North West Wales is overwhelming. His Honour Judge Gary Hickinbottom 30 October 2007

Order

(iii) would infringe the Mussel Farmers’ property rights under Article 1 of the First Protocol to the European Convention on Human Rights: and (iv) would be pursuant to a decision which was irrational in the light of EC Council Environment Directive 85/337 and the nature of the environmental advice relied upon. Ynys Môn, the Anglesey Boat Co and the Fisheries Committee were joined into those proceedings, as Interested Parties.