Akester & Anor (On Behalf of the Lymington River Association), R (on the application of) v Department for Environment, Food and Rural Affairs

Akester & Anor (On Behalf of the Lymington River Association), R (on the application of) v Department for Environment, Food and Rural Affairs

The introduction of the W class ferries was a 'project' within Article 6(3) of the Habitats Directive, as it could not be excluded that their operation would have significant effects on protected sites. Wightlink, as statutory harbour authority, was a competent authority and obliged to carry out an appropriate assessment. The process undertaken by Wightlink was fatally flawed: it failed to provide a reasoned record, did not properly address or give weight to Natural England's advice, and was influenced by commercial considerations. Therefore, the decision to introduce the ferries was unlawful. Additionally, the Habitats Directive was not fully and properly transposed into UK law at the...

Parties
Claimant: Stephen Akester and Marc Melanaphy (on behalf of the Lymington River Association); 1st Defendant: Department for Environment, Food and Rural Affairs; 2nd Defendant: Wightlink Limited; 1st Interested Party: Lymington Harbour Commissioners; 2nd Interested Party: Natural England; 3rd Interested Party: New Forest District Council
Jurisdiction
England and Wales
Judgment Date
16 February 2010
Procedural Posture
Judicial Review / Judgment After Substantive Hearing
Outcome
Declarations granted; permission to apply for judicial review granted
Legal Topics
Habitats Directive, Appropriate Assessment, Judicial Review, Transposition of EU Directives, Competent Authority, Environmental Impact Assessment
Environmental Law Administrative Law EU Law Habitats Directive Appropriate Assessment Judicial Review Transposition of EU Directives Competent Authority +1 more

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Parties

Stephen Akester and Marc Melanaphy (on behalf of the Lymington River Association)

Claimant

Department for Environment, Food and Rural Affairs

1st Defendant

Wightlink Limited

2nd Defendant

Lymington Harbour Commissioners

1st Interested Party

Natural England

2nd Interested Party

New Forest District Council

3rd Interested Party

Procedural Posture

Judicial Review / Judgment After Substantive Hearing

Legal Issues

  1. 1 Whether the introduction of the W class ferries was a 'plan or project' under Article 6(3) of the Habitats Directive
  2. 2 Whether Wightlink was a competent authority for the purposes of the Directive
  3. 3 Whether an appropriate assessment was carried out as required by law

Ratio Decidendi

The introduction of the W class ferries was a 'project' within Article 6(3) of the Habitats Directive, as it could not be excluded that their operation would have significant effects on protected sites. Wightlink, as statutory harbour authority, was a competent authority and obliged to carry out an appropriate assessment. The process undertaken by Wightlink was fatally flawed: it failed to provide a reasoned record, did not properly address or give weight to Natural England's advice, and was influenced by commercial considerations. Therefore, the decision to introduce the ferries was unlawful. Additionally, the Habitats Directive was not fully and properly transposed into UK law at the...

Court Disposition

Declarations granted; permission to apply for judicial review granted

Orders

  • Declaration that Wightlink's decision to introduce the W class ferries on 25 February 2009 was unlawful, being in breach of its duties as competent authority under Article 6(3) of the Habitats Directive and the Habitats Regulations
  • Declaration that the Habitats Directive was not fully and properly transposed into domestic law by the Habitats Regulations in its original form