Bruton, R (on the application of) v Attorney General to the Prince of Wales & Ors [2009] EWHC 1652 (Admin) (19 May 2009)

Bruton, R (on the application of) v Attorney General to the Prince of Wales & Ors [2009] EWHC 1652 (Admin) (19 May 2009)

Permission to proceed with judicial review was refused against the Duchy due to substantial and unexplained delay, which caused prejudice to the Duchy and the oyster farm operator, and because the only challenged act was the 2005 licence grant. Permission was granted against Natural England on a narrow ground: whether its appropriate assessment adequately considered the risk of spawning by triploid oysters. The claim did not raise issues of general public importance sufficient to warrant a protective costs order at this stage. Costs against the claimant in favour of the Duchy were summarily assessed at £7,500.

Citation
[2009] EWHC 1652 (Admin)
Parties
Claimant: Michael Bruton; First Defendant: Attorney General to the Prince of Wales (sued as Attorney General to the Duke and Duchy of Cornwall); Second Defendant: Natural England; Interested Party: Environment Agency; Interested Party: Marine and Fisheries Agency; Interested Party: DEFRA; Interested Party: Duchy of Cornwall Oyster Farm Limited
Jurisdiction
England and Wales
Judgment Date
19 May 2009
Procedural Posture
Judicial Review / Permission Application (substantive Oral Hearing)
Outcome
Permission for judicial review refused against the Duchy (First Defendant) due to delay; permission granted against Natural England (Second Defendant) on a narrow ground; costs summarily assessed against the claimant in favour of the Duchy.
Legal Topics
Habitats Directive Compliance, Appropriate Assessment, Judicial Review—delay, Protective Costs Orders, Competent Authority Status, Public Law Remedies
Environmental Law Administrative Law European Union Law Habitats Directive Compliance Appropriate Assessment Judicial Review—delay Protective Costs Orders Competent Authority Status +1 more

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Parties

Michael Bruton

Claimant

Attorney General to the Prince of Wales (sued as Attorney General to the Duke and Duchy of Cornwall)

First Defendant

Natural England

Second Defendant

Environment Agency

Interested Party

Marine and Fisheries Agency

Interested Party

DEFRA

Interested Party

Duchy of Cornwall Oyster Farm Limited

Interested Party

Procedural Posture

Judicial Review / Permission Application (substantive Oral Hearing)

Legal Issues

  1. 1 Whether the Duchy of Cornwall (via the Attorney General) was under a duty to carry out an appropriate assessment under Article 6(3) of the Habitats Directive and/or the Conservation (Natural Habitats, &c.) Regulations 1994 before granting a licence for an oyster farm;
  2. 2 Whether Natural England carried out an appropriate assessment as required;
  3. 3 Whether delay precluded the claim against the Duchy;

Ratio Decidendi

Permission to proceed with judicial review was refused against the Duchy due to substantial and unexplained delay, which caused prejudice to the Duchy and the oyster farm operator, and because the only challenged act was the 2005 licence grant. Permission was granted against Natural England on a narrow ground: whether its appropriate assessment adequately considered the risk of spawning by triploid oysters. The claim did not raise issues of general public importance sufficient to warrant a protective costs order at this stage. Costs against the claimant in favour of the Duchy were summarily assessed at £7,500.

Court Disposition

Permission for judicial review refused against the Duchy (First Defendant) due to delay; permission granted against Natural England (Second Defendant) on a narrow ground; costs summarily assessed against the claimant in favour of the Duchy.

Orders

  • Permission for judicial review refused against the First Defendant (Attorney General to the Prince of Wales/Duchy of Cornwall).
  • Permission for judicial review granted against the Second Defendant (Natural England) on the issue of adequacy of appropriate assessment regarding triploid oysters.