Mott, R (on the application of) v The Environment Agency & Anor

Neutral Citation Number: [2015] EWHC 314 (Admin) IN THE HIGH COURT OF JUSTICE ADMINISTRATIVE COURT BIRMINGHAM DISTRICT REGISTRY Case No: CO/12289/2013 CO/4422/2014 Birmingham Civil Justice Centre Bull Street, Birmingham B4 6DS Date: 13/02/2015 Before : HHJ DAVID COOKE - - - - - - - - - - - - - - - - - - - - - Between : The Queen on the application of Nigel Mott - and - The Environment Agency David Merrett (Interested Party) Claimant Defendant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mark Beard (instructed by Simon Jackson Solicitors) for the Claimant Gwion Lewis (instructed by Environment Agency Legal Services) for the Defendant Hearing dates: 20th and 28th November 2014 - - - - - - - - - - - - - - - - - - - - - Judgment HHJ David Cooke: 1. 2. 3. The claimant, Mr Nigel Mott, is the leasehold owner, jointly with the interested party Mr Merrett, of a right to fish for salmon at Lydney in the estuary of the River Severn using a putcher rank, that is, an array of 650 basket-like traps into which adult salmon swim as they make their way from the sea to spawn. The putcher is a very old fishing method and traditionally was made of woven wood, but the claimant's are now made of steel. The claimant's putcher fishery is a commercial operation; in the years prior to the decisions challenged the claimant's evidence is that he caught an average of 600 salmon per year with an approximate value of £60,000 and that the fishery represents his full time occupation and livelihood, supporting his family and that of Mr. Merrett. The decisions challenged impose conditions on the licence required to operate the fishery limiting the permissible catch in 2012, 2013 and 2014 to 30, 23 and 24 fish respectively. At these levels, the claimant contends, the fishery is wholly uneconomic and his lease is worthless. The claimant's lease is a property interest of a somewhat unusual kind. The present lease runs for a period of 20 years from 1 April 1998 (the claimant and Mr. Merrett have held previous leases since 1975) and provides that in consideration of the rents reserved: “… the Landlords hereby grant and the demise unto the Tenants ALL THAT right to fish two stop nets and 650 putchers in the estuary of the River Severn near Lydney Pill granted under Certificate Numbers 9/56 and 10/57 issued by the Special Commissioners for English Fisheries on the fourteenth day of May 1866 under the Salmon Fishery Acts 1861 and 1865 in the approximate position shown on the plan attached to the said Certificates a copy of which is annexed hereto and marked "A" (which right is hereinafter referred to as "the Fishery") TOGETHER WITH the right to store equipment ancillary to the Fishery on the land measuring 14 yards wide and 35 yards long adjacent to the Fishery appointed by the Landlords AND TOGETHER WITH a right of way … along the track shown with a red line on the plan marked "B"… ” The right to fish by stop nets was not referred to by either party in these proceedings and I say no more about it. The Certificate referred to declared the putcher rank to be a "Privileged Engine" for the purpose of the Salmon Fishery Acts, on the ground of its long period of customary use prior to 1861. According to Mr. Mott's witness statement, similar systems may have been in use for thousands of years. The holder of the certificate had the right to continue to use the Privileged Engine notwithstanding the controls on salmon fishing introduced by those Acts, and subsequent legislation. It was no doubt a valuable right, and the lease of it to the claimant and Mr Merrett was a valuable piece of property. The annual rent payable under the lease is partly in cash (£180) and partly in kind (65 pounds weight of salmon). The right granted by the lease is the right to take fish using the Privileged Engine. It is not by any means the same as a conventional lease of land; it does not grant exclusive possession of any part of the riverbed and the putchers are required to be placed only in the approximate positions marked on the plan. The ancillary right to store equipment on an area designated by the landlord appears to be in the nature of a licence, and the only other right related to land is the right of way along the specified track leading down to the river. Neither of those rights can have any value, or realistic use, apart from the operation of the fishery. A licence has been required to operate the putcher rank since the coming in to force of the Salmon and Freshwater Fisheries Act 1975. The power to issue such licences is now vested in the Environment Agency ("the Agency"). Section 25 of that Act introduced a system of licensing for "licensable means of fishing", one such means being a "historic installation". "Historic installations" are defined as various methods of fishing by means of fixed apparatus authorised by virtue of long use prior to 1861, including those (such as the claimant's) certified as Privileged Engines under the 1865 Act. Section 26 of the 1975 Act conferred a power to limit the number of licences of a particular type issued in a given area, but provided that no such limit should apply to fishing by use of either rod and line or a historic installation. A number of such orders have been made; they are referred to as "net limitation orders", presumably because by virtue of the exclusions they apply to fishing by nets. Such orders have been made in respect of two traditional types of net fishing used on the River Severn, draft nets (a type of seine net) and lave nets (large triangular nets operated by fishermen wading in the river). There was originally no power to impose conditions such as a catch limitation on a licence issued for use of a historic installation. Such a power was however given by paragraph 14A of schedule 2 to the 1975 Act, introduced with effect from 1 January 2011 by the Marine and Coastal Access Act 2009. It is this that has been relied on to impose the catch limits now challenged. Subparagraph (4) provides however that the Agency "may only impose conditions… where it considers that it is necessary to do so for the protection of any fishery." Mr. Mott's contention is that the Agency has for at least 10 years wished to close down his fishery. Although the Agency denied that this is the case, I note that in a document served at the start of the hearing setting out a "Technical case for two net limitation orders for the Severn Estuary" Appendix 1 sets out a summary table of planned actions taken from the Severn Estuary Salmon Action Plan 2003 which includes the entry "Putchers (Midlands): Seek closure of Lydney Park Rank". In the past there have been negotiations for Mr. Mott to give up his rights in return for compensation, but no agreement was reached. He was however paid an agreed amount not to fish for the 2011 season, no catch limit having been imposed for that year although the power to do so was then in force. That was not repeated in 2012 however and instead Mr. Mott was served with a notice under the 1975 Act on 1 June 2012 (bundle, p45), the first day of the fishing season permitted under his licence for that year, limiting his catch to 30 fish. It did not come entirely out of the blue; there had been earlier correspondence including a letter of 13 March 2012 (p70) notifying him that the Agency expected to receive shortly the results of a study which would "provide incontrovertible evidence that the fisheries exploit a mixed stock" and drawing his attention to the power to impose a catch limit without compensation. He had been sent a copy of that study with a letter dated 16 April 2012 (p47) which also notified him that it was intended to set a catch limit of 30 fish for that year. The study referred to was a report dated 15 April 2012, though evidently discussed in draft with the Agency before that, by Dr Andrew King and others from the School of Biosciences at the University of Exeter. It has been referred to in these proceedings as 4. 5. 6. 7. 8. 9. the "Exeter report". Mr. Mott's contention is that it should have been obvious from the beginning that this study was fundamentally flawed such that its conclusions could not be correct, and accordingly it could not have been rationally relied on as the basis for the decisions taken. It has however formed the sole or main foundation for the decisions in all three years, notwithstanding its alleged immediately obvious unreliability and the criticisms made of it by him as a layman and by expert evidence he has since obtained. 10. Mr. Mott is aggrieved that the notice given to him did not follow any period of consultation, and that he was not provided with any realistic opportunity to respond to the Exeter report or the conclusions drawn from it before the notice was served. He contrasts this with the statutory obligation to consult before a net limitation order is made, though he accepts that the same statute does not expressly require consultation before imposing licence conditions under para 14A. He is also aggrieved by the fact that no compensation has been offered, though he accepts that the statute does not expressly require any to be paid. He contends however that the conditions imposed are so restrictive that they amount to a de facto expropriation of his property (ie the lease) in breach of Art 1 of the First Protocol to the ECHR ("A1P1"). 11. 12. 13. 14. Before coming to the particular decisions challenged in these proceedings and the objections taken to reliance on the Exeter report, it is helpful to set out some of the background considerations affecting them. I am grateful to both counsel for their explanation of the applicable statutory and EU environmental law in particular, which I attempt to summarise extremely briefly and only insofar as necessary to explain the issues before me. The Severn estuary opens into the Bristol Channel at its furthest North-West extent. Many other rivers also flow into the Bristol Channel, relevantly for present purposes they include the Wye and the Usk. The mouth of the Wye is some 15Km downstream from, ie nearer the open sea than, the fishery at Lydney, and the Usk some 35Km downstream from Lydney. The Severn Estuary and the Rivers Wye and Usk are each designated as Special Areas of Conservation ("SACs") under Council Directive 92/44/EEC ("the Habitats Directive"), among other wildlife and conservation designations. It is common ground that any decision of the Agency affecting a SAC, such as a decision to set licence conditions under the 1975 Act, requires an assessment to be made for the purposes of the Habitats Directive, referred to as a "Habitats Regulations Assessment" or "HRA" and that the Agency is required by that Directive to be able to conclude that the decision will have "no adverse effect" on the SAC. That phrase occurs in several places in the documents I was shown, as a shorthand reference to the Habitats Directive requirements. It is apparent from the contemporary documents that the controlling factor in the decision taking was consideration of the numbers of salmon returning to the Wye to spawn, the stock in that river being considered to be the most vulnerable. The impact of the claimant's fishery was considered therefore in terms of the effect that the catch at Lydney might have on salmon destined to spawn in the Wye. The Agency's decisions were accordingly stated to be taken with a view to the conclusion that there must be 'no adverse effect' on the salmon run in the Wye. Salmon are well known to be migratory fish. They are born in fresh river water and descend the river as immature fish in order to spend some years feeding at sea. As adults they return to fresh water and make their way up river to spawn in gravel beds in the higher reaches of the river and its tributaries. It is clear from the documents in this case that the Agency's decision taking is premised on the assumption that all or 15. 16. almost all adult salmon return to their native river, and even to the tributary from which they descended. There may well be scientific evidence to support this assumption, but it has not been referred to before me. I do not know therefore whether it is firmly established by evidence, or simply an assumption that has been applied for so long that it has become unquestioned. As I refer to below, the Exeter report that the Agency relies on itself contains material which may call into question how reliably salmon return as they are expected to do. Thus the starting point for the Agency's consideration has been that if it can be shown that a particular salmon originated from, say, the river Wye it would inevitably have returned to the Wye to spawn, and that this is so even if it is caught at Lydney in the Severn estuary, having swum some 15Km past the mouth of the Wye. Another important aspect of the Agency's thinking has been related to "mixed stock fisheries". Once out of their native river, stocks of salmon (and other migratory fish such as sea trout) from different rivers are mingled, so that any catch may include fish originating from more than one river. This is referred to as a "mixed stock" and a fishery exploiting such a stock as a "mixed stock fishery". A considerable part of the Agency's focus has been on whether the Lydney fishery is a mixed stock fishery. Mr. Lewis submits that it is longstanding government policy for the whole of England and Wales to close mixed stock fisheries, pointing to a 1996 policy statement of the National Rivers Authority (he does not identify the source, but it is not challenged) that: “exploitation… should take place, as far as possible, where the stock of salmon is from a single river. In fisheries which can be shown to exploit predominantly mixed stocks, fishing will be phased out over an appropriate timescale” and an acceptance by the UK and Welsh governments in 2001 of a recommendation of the Salmon and Freshwater Fisheries Review that mixed stock fisheries should be phased out wherever possible. 17. The position of the Agency in argument was that restriction or prevention of exploitation in a mixed stock fishery was justified irrespective of the degree to which stocks were actually mixed (thus a stock shown to be almost entirely of fish from river A would nevertheless be regarded as mixed if it included a small proportion from river B), and irrespective of the degree to which the constituent stocks were endangered (so that closure of a fishery exploiting a mixed stock from river A and river B would be justified even if the stock in neither river was considered to be at risk). 18. When I asked what was meant in the NRA statement by "predominantly mixed stocks", the response on instructions was that no one knew, but it was thought that it must refer to the possibility that the proportion of fish at a given location may vary seasonally, and accordingly a stock is "predominantly mixed" if it is mixed for most of the year. I am bound to say it seems most unlikely that this was what was intended; in the context used it seems much more apt to refer to a stock which is predominantly not from a single river, distinguishing from the single river stock which it is policy to permit to be exploited (subject no doubt to controls depending on the conservation imperatives for that river). If so this suggests that the policy rationale for preventing exploitation of "mixed stocks" does not extend to stocks that are predominantly from a single river. 19. The Agency's case has been that if the stock at Lydney can be shown to be a "mixed stock" (or if the best available evidence at the time of decision was such that it was reasonable to conclude that it was a mixed stock) it was justified in imposing the restrictions that it did, irrespective of the proportion of that stock destined to return to the Wye or any other particular river. The contemporary documents however show that this was not the basis on which its decisions were taken, and that the assessment made of the extent to which fish caught at Lydney would otherwise have returned to the Wye was crucial both to the decision to impose a catch limit and to the level at which the limit was set. 20. Insofar as the decision in 2012 was explained to Mr. Mott, it was in the letters of 13 March and 16 April. The former said: “There have been three separate studies into the nature of the stock exploited in the Seven Estuary net fishery. These conclude that each fishery catches salmon from each of the Rivers Wye, Usk and Severn amongst others. The first two published references (Swain (1982) and Jones (1994)) are attached. The results of the most recent study have been shared with us in draft and we expect the final report to be complete in about a week. We will forward this to you when available. The reports referred to above provide incontrovertible evidence that the fisheries exploit a mixed stock. We have not suggested that the Seven Estuary fishery is the primary course of the decline. However the mixed stock nature of the fishery has been recognised by government and we should "move to close net fisheries that exploit predominantly mixed stocks where our capacity to manage individual stocks is compromised". If the estuary fishery remains in place as it is we will not be able to conclude that it will not adversely affect the integrity of the Wye and Usk SACs. By imposing catch conditions we will be able to conclude no adverse effect… We can therefore impose appropriate conditions including catch conditions on historic installation fisheries to protect fisheries and the stocks that support them… ” 21. The letter of 16 April enclosed the Exeter report and said: “You will note that this provides clear evidence of the mixed stock nature of the catch, directly supporting conclusions drawn from earlier studies. The report estimates that more than 90% of the salmon caught are derived from the Rivers Wye (56%) and Usk (38%). Consequently we have proceeded, as indicated in my earlier letter, with our assessment under article 6(3) of the Habitats Directive of indicative applications for licences to fish for salmon in the Severn estuary. We have done this in consultation with Natural England and Countryside Council for Wales. Our conclusion is that, in order to conclude that the estuary fisheries will not adversely affect the integrity of the European sites, we must set conditions on all licences issued. The condition on putcher (historic installation) fisheries in 2012 will be set at 30 salmon…” 22. 23. 24. The italicised quotation is said in the HRAs to be from the EA Strategy for sea trout and salmon fisheries, though I was not provided with a copy of that document. The reference to closing mixed stock fisheries "where our capacity to manage individual stocks is compromised" supports the interpretation that the purpose of such controls is to protect the stocks of individual rivers that may be at risk (rather than a dogmatic requirement that any fishery should be closed merely because it is found to exploit a mixed stock), it being obvious that efforts to preserve or increase stocks in a particular river could be jeopardised if a significant number of fish that would otherwise have returned to spawn in that river are taken in a mixed stock fishery before they have a chance to do so. It is also to be noted that these letters give no explanation to Mr Mott of how the figure of 30 fish was come to. The HRA for 2012 is at tab 26 in the bundle. It sets out that it is assessing the Severn estuary salmon fisheries, consisting of the putcher ranks (of which there were only three including the claimant's expected to apply to licences, although approximately 50 certificates of privilege had been granted under the legislation in the 1860s), the lave net fishery (noted to be limited to 25 licences by the NLO) and the draft net fishery (noted to be limited to 3 licences). It contains the following: “ All these fisheries exploit a mixed stock of salmon, one which comprises fish derived from, and destined to return to, more than one contributing river. The fisheries therefore potentially affect salmon within the Severn estuary SAC… and also the River Wye and River Usk SACs. A recent genetic analysis indicates that the salmon caught in the estuary are derived from the River Wye (56.4%), the River Usk (38.2%) and the River Severn (5.5%)… The mixed stock nature represents a significant problem for rational stock management, as the weakest stock(s) cannot be discretely managed . It is a UK government requirement, reflected in the EA strategy for sea trout are at and salmon fisheries, to "close net fisheries that exploit predominantly mixed stocks where our capacity to manage individual stocks is compromised." The EA decision structure for salmon stock management requires, for stocks that are "at risk" as in the case of the River Wye, to "identify range of options to urgently achieve zero exploitation by both rods and nets - (include 100% C&R) - look to maintain socio- economic benefits were possible..." The current assessment of the River Wye is that it is "at risk" whilst the rivers Usk and Severn are both "probably at risk" of failing to achieve their targets until at least 2016… The poor status of the Wye stock has triggered the promotion of new catch and release bylaws which, if confirmed by ministers, will require all salmon caught in the Wye to be returned alive to the River… An in-combination assessment for the mortality of Wye salmon in the Severn estuary fisheries and in the Wye rod fishery has been carried out. This compares the actual catches over the past decade… and then simulates catches and mortality that [would] have occurred under the proposed new regulatory regime of full catch and release rod fishing in the river and conditioned licences for the estuary fishery. Conditions proposed for 2012 are:- [Historic Installation] fisheries 30 fish per licence. ” 25. 26. 27. These extracts show that the concern in relation to exploitation of mixed stocks is the potential effect on the weakest stocks of individual rivers, and that the weakest such stock in this case is that in the Wye. The "recent genetic analysis" referred to is the Exeter report, and the statement that 56.4% of the salmon caught in the estuary are derived from the Wye is taken from that report. The HRA then sets out two tables intended to show the total numbers of salmon from the Wye killed by the combination of rod fishing in the Wye itself and the catch in the Severn estuary fisheries under consideration. The first table is headed "Actual catches and mortality 2000-2009". The total declared catch for each year from the Severn estuary fisheries is stated (eg in 2006 there were 713 fish caught in the putcher fisheries, 138 by lave nets and 13 by draft nets, 864 in all). The next column is headed "No. Wye fish*" explained by a note "*proportion of Wye fish in Estuary catch now known as 56.4%". For 2006 the figure given is therefore 487, being 56.4% of 864. The following columns show the numbers of fish declared to have been caught by rod and killed by the rod fishermen respectively (in 2006, 519 fish caught of which 64 were killed) and the final column, headed "Total Fishing Mortality Wye fish" is the total of the declared rod kill and the numbers of Wye fish assumed to have been taken in the Severn estuary (for 2006, 487+64 = 551). The second table estimates the number of Wye fish that would have been killed in those years if the proposed regulatory regime had been in force. That regime required all rod caught fish to be returned alive ("100% C&R") but assumed that 9% would die nevertheless. Curiously, no similar assumption had been made in the "actual" table, though it shows that in each year most rod caught fish had been voluntarily returned alive and, presumably, those would also have suffered a proportion of unintended deaths. The impact of the Severn Estuary fisheries was stated as 56.4% of the total permitted catch, ie 125 fish each year. The theoretical estimated mortality in 2006 was thus 125 + 47 = 172 fish. 28. The conclusion section said: “New information derived from genetic assessments of salmon in the estuary and matched against a baseline of genetic data from each of the rivers Wye, Usk and Severn confirm (sic) the nature of the mixed stock and for the first time quantify (sic) the contributions from each River. The data indicate that over 90% of the salmon caught are derived from the two riverine SACs (56.4% from the River Wye, 38.2% from the River Usk) with a small contribution (5.5%) from the River Severn. Our assessment is that recent and future potential unconstrained catches of salmon in the estuary threaten the integrity of the European sites. This is particularly so for the River Wye population which is judged by the EA to be "at risk" of failing to achieve its annual conservation limit and its five-year management target until at least 2016. Nevertheless we recognise the heritage value of the fishing methods used in the estuary, some of which are wholly unique to this site. We accept that some residual exploitation of salmon will take place but consider that the residual catch is sustainable and therefore acceptable… The application of Net Limitation Orders to set a cap on the number of lave net and draft net licences, together with the annual setting of catch conditions on these sectors and the historic installation fisheries will end the risk of unrestricted catch. We have considered the likely level of catch and conclude that this will have no adverse effect on site integrity.” 29. 30. The analysis in this document is therefore entirely dependant on the estimated impact of the various measures on fish that would otherwise have returned to spawn in the River Wye. In its relation to the Severn estuary fisheries, that analysis is crucially dependent upon, firstly, the finding taken from the Exeter report that 56.4% of the fish caught by those fisheries consist of salmon that were born in the River Wye, and secondly the assumption that all the fish that were born in the River Wye would have returned to spawn in that river, notwithstanding that at the point at which they were caught, they had gone some 15 km past the mouth of the River Wye and might therefore have been proceeding up the River Severn instead. It is also to be noted that the HRA does not give any reason for settling on the particular catch limit figures proposed. It states the conclusion that unrestricted catches in the Severn estuary "threaten the integrity of the European sites" and that the proposed levels will not do so, but it does not, for instance contain any estimate of the numbers of fish that could be allowed to be caught without adversely affecting the River Wye or any of the SACs. Thus it does not say, for instance, that the numbers to be permitted are considered to be the maximum that could be allowed without having such an adverse effect, or that if they had been set more conservatively than that, why it is considered appropriate to do so. Mr Lewis submitted that there was no obligation on the EA to permit the maximum level of exploitation that would not have an adverse effect, and none of the grounds of challenge was specifically directed to this point. It may be, however, that it will need to be considered in future since the power relied on to set catch limits under paragraph 14A may only be exercised where the Agency "considers it necessary to do so for the protection of any fishery". 31. The HRA for 2013 was very similar in layout. However it included only the first of the two tables, in a slightly modified form in that the proportion of fish from the River Wye caught in the Severn estuary was this time said to be "estimated as 56.4%" where previously it had been said to be "known as 56.4%". The total permitted catch in the putcher fisheries was proposed to be reduced from 150 divided between five licences to 138 divided between six licences, so that the catch limit applicable to the claimant would fall from 30 to 23 fish. There were some explanation of the derivation of the total figure as follows: “The predicted outcome in 2013 has been based on:- 10 years Wye rod catch data, assuming 100% C&R fishing had applied a residual C&R mortality of 20% In this scenario the mean annual rod fishery residual mortality is 154 fish, and this has been used to set catch conditions for the estuary fishery, therefore ensuring parity. The proportion of Wye salmon in the estuary cash has been estimated, using probabilistic genetic stock assignment, as 56.4% and this has been used to set the total allowable estuary catch (including fish from all contributory rivers) at 278. The allocation between sectors has been set equitably. Estuary fishery catch conditions:- Historic installations 138 Lave nets 135 Draft nets 5 Total = 278 Under this regime the catch by the most productive estuary fisheries will be restricted to the approximate long-term de minimus (sic) catch ” 32. 33. It is apparent from this that the governing consideration was again the estimated impact of the Severn estuary fisheries on fish that would have spawned in the Wye, and that it was again crucially dependent on the estimate of proportion of such fish derived from the Exeter report. 56.4% of the total catch to be allowed of 278 gave an estimated loss of Wye fish approximately equal to the assumed losses from rod fishing notwithstanding the catch and release policy (in fact the figure of 154 does not correspond to 20% of the calculated mean rod catch of 745). It is not explained why the assumption of residual mortality from fish caught and released by rod fishermen had increased from 9% to 20%. Had the previous figure being maintained and the premise of an equal allocation to the Severn estuary fisheries still been applied, the total allowable catch from those fisheries would have been still further reduced, to less than half the numbers actually proposed for 2013. The final sentence quoted above was explained as meaning that the number of fish allowed per licence was set as being approximately the 10 year average catch of the least productive of all the fisheries licensed. The practical result for the claimant is that his fishery of 650 putchers is given the same catch allocation as the smallest and least effective of the other putcher fisheries, which may operate 50 baskets or less. These he says are not commercially viable but operated only as a hobby. Plainly, the heaviest impact of this policy falls on the claimant who relies on the fishery for his living rather than the smaller operators. 34. The HRA for 2014 was again in similar form, except that by the time it was adopted Mr. Mott had provided the report he had received from his expert, Professor Fewster, which heavily criticised the conclusions drawn in the Exeter report. In recognition of this the HRA said: “We are currently engaged in a judicial review on the process of allocating HI catch conditions during the 2012 and 2013 seasons… A component of the claimant['s] submission to the JR was a critical evaluation of the genetic analysis and apportionment referred to above. We are currently seeking an independent review of this work but it will not be completed prior to the start of the 2014 season. When complete we will review this to determine if there are implications for our procedures going forward. The agency is committed to using the best available evidence when undertaking its licensing duties. We believe that until this review is complete the methodology used previously is the best evidence available.” 35. 36. The proposed total allowable catch between all of the Severn estuary fisheries was set at 288, again on the basis that it was assumed that 56.4% of this number (ie 163 fish) would be fish originating from the River Wye. 163 was given as the ten-year average mortality expected from rod fishing, assuming a 100% catch and release policy and a residual mortality of 20%. The figure was increased because the numbers of rod caught fish in 2011 and 2012 were substantially higher than the previous average. The stated aim was again to achieve equality of impact on the stocks of fish in the river Wye as between rod fishing on the River and the Severn estuary fisheries. Of the total allowable catch of 288 fish, 144 were allocated to the expected applications for historic installation (i.e. putcher) fisheries. It was stated that six such applications were expected (hence the allocation of 24 fish to each licence), although it was noted that only two of the expected six applications had been received in 2013. There is no indication why applications were expected in 2014 from those who had not renewed their licences in 2013. It does not appear that the lower number of applications in 2013 led to any increase in the catch allowed to those that did apply, although all the HRAs state that if more applications had been received than were expected, the allowable catch for each licence would have been revised downwards. The Exeter Report 37. 38. The Exeter report started from genetic analysis of DNA samples collected from various tributaries of the Severn, Wye and Usk and also "to put [these] in geographical context samples from three additional rivers that flow into the Severn estuary/Bristol channel were included". These were the rivers Tawe (Wales) and Taw and Torridge (Devon), all of which have their mouths nearer to the sea than the Usk. The analysis of markers in the DNA was used to create a genetic profile of fish from each tributary, and the profiles from the various tributaries of each river combined to produce a profile for that river. The profiles for the various tributaries were compared and a "neighbour joining dendrogram" produced, ie a diagram showing the closeness of relationship between each of those profiles. A separate analysis ("BAPS") was performed with a view to separating the individual tributary profiles into "clusters" of closely connected profiles. 39. It is apparent that the study showed comparatively little genetic variation between the individual tributaries. The section headed "Interpopulation analyses" includes the following: i) ii) "Values of Fst [described elsewhere as a measure of 'genetic differentiation between populations'] between populations were generally low…", and "Both the neighbour-joining dendrogram and the BAPS clustering analyses showed a general lack of geographically based structuring to the genetic variation… The BAPS analysis found strongest support for three independent genetic clusters, clusters 1 and 2 containing only a single population each (the Banwy [tributary of the Severn] and West Okemont [tributary of the Torridge] respectively) while the third cluster contained all the remaining populations." It would appear that the samples taken from the Banwy may have been unusual; the immediately preceding section notes that "this population is comprised of a high number of full sib[ling] families". In the later revision of the report, full sibling results were excluded on the basis they were known to skew the results. With the exception of the Banwy, all the samples from tributaries of the Severn, Wye and Usk were therefore considered to be a single genetic cluster (which also included all but one of the tributaries of the Taw, Tawe and Torridge). Further, the dendrogram showing the closeness of relationship between the various tributaries shows that, in general, the population from a tributary of one river was found to be genetically nearest not to other tributaries of the same river, but to those of another river altogether. Thus for instance the nearest neighbours, in genetic terms, of the fish from the Tanat tributary of the Severn were said to be from the Duhonw tributary of the Wye and the Ysgir tributary of the Usk. It also appears that where samples from the same tributary had been taken in two different years (most were taken specifically for the Exeter survey in 2011, but some data from earlier sampling in 2009 and 2004 were also used) the samples differed from each other by at least as much as the difference between themselves and samples from other tributaries of other rivers in the same year. The genetic profiles from individual tributaries of each river were combined to produce a profile for that river as a whole. The report does not comment on whether this is appropriate in view of the lack of geographic distinctiveness of the profiles. Genetic markers from the 55 adult fish caught at or near the claimant's fishery were then compared to these whole river profiles. Individual fish were "assigned" to a river based on the degree of similarity of their individual genetic profile to that produced for the whole river. A percentage probability of a match to each river was stated in each case. That assignment was done using two different methods, the results of which appear to have been substantially different. Thus under the first method ("GeneClass2") 16 fish were assigned to the Severn and 20 (ie 36.4%) to the Wye but under the second ("ONCOR") only 3 fish were assigned to the Severn and 31 (ie 56.4%) to the Wye. A section headed "robustness of results" said “There are differences in the assignment between the methods, but examination of the individual data indicates that the fish that are "switching" assignment between rivers of origin are those for which assignment success is low with both methods… With this sort of generalist fish/genetic profiles, all methods 40. 41. 42. will struggle to be able to reliably assign to river of origin with a high degree of certainty. ” 43. The final section of the report included the following: “Severn nets represent a mixed-stock fishery The genetic data suggest that the Severn nets from where the adults supplied for genetic analysis were taken definitely constitute a mixed-stock fishery. Not all the adult salmon analysed assign with the same degree of confidence to a baseline river, but a significant number appear to originate from all three key rivers in the region (Wye, Usk, Severn) and assign to one or other of these with confidence >90%. Thus it appears highly probable that fish from the Wye, Usk and Severn are being caught in the Severn nets... The relatively lower confidence of assignment of fish to the Severn may, in part, reflect the fact that the Severn is a bigger river than the Wye and Usk, and probably a more complex river (in terms of the different genetic profiles of the populations and subpopulations of salmon within it)… As shown in the [dendrogram], the overall level of genetic differentiation between salmon in the Wye, Usk and Severn is not great. One explanation for this lack of differentiation is on- going mixing and straying between contemporary populations.” 44. 45. 46. The reference to the "relatively lower confidence of assignment of fish to the Severn" is to the fact that where individual fish are assigned to that river by one of the two methods used, in general the percentage probability given is lower than in the case of other rivers. This section emphasises the relative lack of variation between the genetic populations. It suggests that one explanation may be "mixing and straying", in other words that fish hatched in one river or tributary may not in fact return to that river or that tributary in order to spawn themselves. If so, that might presumably be an explanation why the population from a tributary from one river appears to be closer genetically that of a tributary from another river, rather than other tributaries of the same river (or, indeed to samples from the same tributary in a different year). It would also cast doubt on the reliability of the fundamental assumption made by the Agency that if a fish can be shown to have originated from one river it would inevitably have returned to that river to spawn. I observe that as between the two methods used the percentage of fish assigned to the River Wye was substantially different. No explanation appears to be given why the Agency selected the higher of the two figures in producing its own documents, or why that figure was presented in those documents ("now known as 56.4%") as if that figure, rather than any other, was an established fact. The Exeter report was revised in March 2013 (tab16). After other adjustments to the analysis, the assignment to individual rivers was performed using the original two methods and an additional one ("eBayes"). This produced the even more striking result that of the 55 fish caught at Lydney none at all were assigned to the Severn, 42 (76%) were considered to have come from the Wye and 13 from the Usk. The revised analysis by the other methods also increased the proportion assigned to the Wye and reduced that assigned to the Severn. 47. A section headed "Do the Severn nets represent a mixed-stock fishery?" was considerably expanded from the corresponding section of the original. It contained the following: “ The genetic data suggest that the Severn estuary nets from where the 55 adult salmon analysed were caught constitute a sample (sic) originating from multiple rivers. The majority of adult salmon analysed appear to originate from two of the three key rivers in the region (Wye and Usk)… Not all the adult salmon analysed assigned with the same degree of confidence to a baseline river and, therefore, for these fish it is not possible to definitively determine their river of origin. Nonetheless a significant number of adult salmon analysed have high assignment abilities/percentages to one particular other using all three assignment methods (ie [4 specified fish]) and we can have a high degree of confidence that these fish are potentially from one of the populations used to construct the baseline for that river. Thus our analysis indicates that fish from the Wye and Usk are being caught in these Severn estuary nets. The majority of fish, however, have lower confidence of assignment to individual rivers and for several fish there is disagreement between assignment methods as to their most likely river of origin… ” 48. 49. Notably, the opening statement from the section has been revised from that which appeared in the earlier report. The heading is posed as a question rather than a statement. The word "definitely" and the phrase "mixed stock fishery", which appears to be jargon used by the Agency rather than the researchers, have disappeared from the text. The report now states that only 4 fish out of 55 can be assigned with "a high degree of confidence" to an individual river (which was in three cases the Wye and the other the Usk). In the case of the other 51 fish the conclusion would appear to be that "it is not possible to definitively determine their river of origin." Nevertheless, the Agency continued in the HRAs for 2013 and 2014 to use the figure of 56.4% of fish attributed to the river Wye. The only concession to the fact that that figure now did not now derive from any of the assignment tables set out in the revised report would appear to be that it was referred to as "estimated" rather than "known". 50. Mr. Mott is not of course an expert in statistics or genetics. He considered the conclusions drawn from the Exeter report to be incredible, and did his best to communicate those views to the Agency. In May 2012, before the first condition was imposed, a meeting was arranged at which he was allowed to speak to the Exeter researchers, but this did not succeed in persuading them, or the Agency, to any change of view. His uncontradicted evidence of that meeting is that the Agency's responsible officer, Mr. Crundwell, described the conclusions of the Exeter report as "incontrovertible". 51. 52. Accordingly he consulted an expert of his own, Professor Fewster of University of Auckland, New Zealand. He exhibited a preliminary report by Professor Fewster to his first witness statement in these proceedings, in August 2013. Objection was taken to the admissibility of that report since it was not in CPR compliant form, and accordingly a revised and compliant report was produced and shown to the Agency in January 2014. It was no doubt that which led to the reference in the 2014 HRA, although that document recorded that the Agency still regarded the Exeter report as the "best evidence" on which it relied. As Mr Lewis submits, it is not the function of the court in these proceedings to form its own view as between the differing views of the various experts. Accordingly, the purposes of this judgement I propose to note only very briefly the principal points of the criticisms made by Prof Fewster: i) ii) iii) She notes the assumption that salmon originating from one river will return to the same river to spawn, and that this is further assumed still to be the case in respect of fish originating from the rivers Wye or Usk but caught at Lydney notwithstanding that in order to get there they have substantially overshot their natal rivers. She notes that the Exeter report does not refer to any evidence to support these assumptions. She suggests that they might be tested by tagging and releasing adult fish caught at Lydney and recording whether they are subsequently recaptured, and if so in which river. She states that because of fundamental logical flaws in the "best population analysis" used in the Exeter report to assign individual fish to the most likely river of origin, the percentages expressed in that report do not reflect in any way the probability that an individual fish comes from one river rather than another. The analysis used can only be safely employed where (inter alia) there is a high degree of genetic discrimination between the candidate populations (which is clearly not the case here, as the Exeter report itself notes). In cases where one population shows a greater degree of variation than the others, the analysis tends to assign individuals away from the diverse population. Thus individual fish that in fact derived from the Severn (the most diverse) would be likely to be wrongly assigned to one of the other rivers. The "best population analysis" technique is fundamentally unsuitable in the present case in view of the lack of overall genetic differentiation between the three different rivers, and the fact that samples from a tributary one river show a closer genetic similarity to those from tributaries of other rivers than they do to those from other tributaries of the same river. These problems mean that when the techniques used are applied to fish known to have originated from the River Severn (i.e. the juvenile samples taken from that river) they assign only 11% (GeneClass2 method) or 2% (ONCOR method) of those fish to the River Severn. iv) On her own analysis of the underlying data, all 55 fish caught at Lydney could plausibly have originated from the River Severn. 53. The Agency in response sought a second opinion, referring both the Exeter report and that by Prof Fewster to Dr Terry Beacham , the Head of Stock Identification at the Molecular Genetics laboratory at the Pacific Biological Station of the Canadian agency Fisheries and Oceans Canada. I summarise again very briefly his principal conclusions: i) ii) He agreed that the technique used in the Exeter report could not provide a reliable estimate of the proportion of fish originating from each of the three rivers. He considered nevertheless that there was evidence to show that some of the fish originated from the River Wye. If all 55 fish had been born in the River Severn, even though the analysis would tend to underestimate the percentage coming from that river, it would be unlikely to be so wrong as to fall below 10%. Since the estimated percentage from the River Severn was below that figure, in his view some proportion (he did not suggest what) of fish from other sources must have been present. "There is sufficient evidence to conclude that the salmon caught in the Severn estuary net fishery are from a mixed-stock sample". 54. Finally, in response to Dr Beacham's report, Prof Fewster produced a further short report expressing her view, supported by statistical analysis, that it was perfectly plausible that all 55 fish in fact originated from the River Severn and that even if that was so, contrary to Dr Beacham's opinion, the unsuitability of the methods used in the Exeter report was such that they would in fact be very likely to misrepresent the position to such an extent that less than 10% would be successfully attributed to that river. Irrationality 55. 56. The first ground of challenge is that it was irrational, in the Wednesbury sense, to rely on the Exeter report. Its flaws and the incredibility of its conclusions were such that no reasonable authority could rely on it to conclude that the conditions imposed on Mr. Mott's licence were necessary to protect any fishery, which is the statutory precondition to exercise of the power to set conditions. In part, in making these criticisms, Mr. Beard relies on the criticisms of the Exeter report made by Professor Fewster and the extent to which they are now apparently accepted by Dr Beacham. These he says have "completely discredited" the Exeter report. The Agency was he says aware of these criticisms and unreasonably chose to ignore them. Further, he submits that the Agency misread the Report in drawing the conclusion that 56.4% of fish could be regarded as having originated from the Wye, which was the conclusion critical for the decisions taken. On analysis of the text, he says, the researchers had not said that. 57. Mr. Lewis makes a number of submissions in response. First, he says that the report does express a clear opinion that the fish "assigned" to a river probably originated from that river. It is not stated to be a definite conclusion, but it is a conclusion with a stated degree of probability and the way in which it was interpreted by the Agency was a reasonable reading of the report and its conclusions. As to that, I need say no more than that I agree. 58. Second, Mr. Lewis points out that the expert evidence now produced was not available when the first decision challenged was taken in 2012. The Agency must he says take decisions on the basis of the information available to it and is entitled to act on what it considers to be the best evidence available to it. It is not the function of the Agency, still less the Court on review, to form its own view of the merits where the experts disagree. I accept that the lawfulness of a decision must be assessed in the light of the evidence and information available to the decision taker at the relevant time, and that the question of rationality of the decision must be evaluated 59. 60. 61. 62. accordingly. This is not the same however as saying that reliance may be placed blindly on whatever evidence is available without considering whether it is credible or reasonably supports the conclusions drawn from it for the purposes of the decision. Thus in the case of the first decision in 2012 the Agency was entitled to consider the Exeter report, and was bound to form a considered view as to what conclusions could be properly drawn from it. In doing so it was in my judgment required to take account of the criticisms Mr. Mott as a layman had made of it, and was entitled in doing so to have regard to the fact that he was a layman and inevitably had less expertise on the technical issues addressed in the report. Further, that although these criticisms had been put to the experts at a meeting, they had maintained their view. In many cases this would be likely to lead safely to the conclusion that the expert's view could be relied on as a basis for decision taking. But that is not inevitable; it must in principle be possible that a non-expert view of an expert's opinion raises matters that cast sufficient doubt that the only rational response of a decision taker is that it is not proper to rely on the expert's view, either at all or without seeking further advice. In this case, it is clear from the documents supporting the decision in 2012 and each later year that the basis of each decision was the need to protect stocks in the Wye, and that critical steps in the chain of reasoning leading to limiting catches at Lydney were (a) that 56.4% of fish caught at Lydney could be estimated to have originated from the Wye and (b) that a similar percentage would have otherwise returned to the Wye to spawn. The first conclusion was plainly drawn from the Exeter report. Further, the specific percentage was used as the basis of the total catch limit sought, from which the figures apportioned to individual licences were derived. Although earlier research is referred to, it provides no support for the 56.4% figure, and is referred to only as background support. The second step is not stated, but is plainly implicit. In my view, Mr. Mott's lay criticism that this conclusion was obviously incredible is well justified. The conclusion that fishing in the upper Severn estuary has a significantly greater effect on the River Wye than the Severn itself should have been immediately startling and have caused the Agency to examine whether it could be correct. As Mr. Mott points out in his evidence, the Agency's own estimate is that the annual salmon run in the Severn is between 10-15,000 fish. It has no estimate for the Wye, but the figure must be smaller bearing in mind that (a) it is a smaller river and (b) the Agency's assessment is that stocks in the Wye were more imperilled than those in the Severn. And yet, as he says in his first witness statement (paras 10-11) if it was the case that of the salmon present at Lydney 19 times as many were destined to return to other rivers, overwhelmingly the Wye and Usk, rather than the Severn, those rivers would be "teeming with salmon" when they plainly are not. There is no indication in the Exeter report that the salmon caught at Lydney are not representative of the population of salmon at that point in the Severn (eg that for some reason salmon originating in the Severn were disproportionally likely to evade the putcher traps). Accordingly, on the face of it if the conclusion reached by the Agency was right 10,000 salmon (at least) that spawn in the Severn are derived from (in round terms) 5% of the fish passing through Lydney. However 55% or 11 times as many of those fish instead of carrying on up the Severn are concluded to go back down the estuary and then into the Wye. On that basis at least 55,000 fish would be present in the Wye. Mr. Crundwell, the Agency's witness, suggested in his report that fish from the Severn would travel straight up the river whereas those from other rivers finding themselves at Lydney might pass up and down that part of the estuary several times (and so be more likely to be caught in the putchers) before going downstream to their native river. That seems to me no more than conjecture and rationalisation long after the decisions under challenge were taken. It is not a matter mentioned in any of the HRAs. Even if there is some such effect as he mentions, he has not set out any basis on which the size of it could be estimated and it would have to be a very large effect indeed to account for the figures taken from the Exeter report. In addition (as Mr. Mott also pointed out in his witness statement) it might reasonably be assumed that there would be other fish returning to the Wye that would not go so far out of their way as to pass through Lydney. A layman's assumption might be that if the basic hypothesis about the reliability of the homing instinct in salmon is correct, more fish would go direct to the Wye than circuitously via the upper Severn estuary. If that is right, the numbers present in the Wye would be considerably greater still. Given the Agency's concern about low stocks in the Wye, it plainly and obviously cannot be the case that there are 55,000 salmon returning to it to spawn, let alone more. This impossible contradiction should have been immediately apparent to the Agency if it had taken an objective look at the implications of the conclusions they drew. It does not require any knowledge of the technical issues relating to the genetic or statistical analysis. As soon as one stands back, it is blindingly clear that the conclusion must be wrong. It is not possible (at least for a layman) to say by how much it is wrong, or that even if the correct figure is not 55% it must still be significant. Nor does it matter whether the error lies in the first step in the reasoning (origin of the fish at Lydney as indicated by the Exeter report) or the second (eventual destination of fish originating from the Wye). The only rational conclusion was that the Exeter report findings were no basis for drawing any conclusion as to the numbers of salmon caught at Lydney that would otherwise spawn in the Wye. That should have been apparent on first receipt of the Exeter report, before the 2102 decision was taken, since it did not require any additional expert input. 63. 64. 65. 66. Mr. Lewis in his submissions sought to divert attention from the conclusion as to the number of salmon at Lydney destined to return to the Wye. What was important, he said, was that it was still reasonable to conclude from the Exeter report that the fishery at Lydney was a "mixed stock fishery" and that it was policy to prevent exploitation from such fisheries. In his skeleton he said "It was the high likelihood of the Severn estuary hosting a mixed stock fishery that led the Agency to impose the 2012 conditions, not any attempt to assign the stocks within that fishery more particularly to a specific river". 67. 68. That submission is in my view untenable in the light of the content of the HRAs. As I have shown above they did not proceed on the basis that a mere finding that the fishery at Lydney consisted of a mixed stock justified the restriction of catches there irrespective of the degree of mixing or the origin or destination of the mixed fish, but on the basis that a particular proportion would otherwise have returned to the Wye and it was necessary to impose a restriction such that the loss of that proportion of the reduced permitted total catch would have no adverse effect on the Wye fishery. Accordingly, whether or not the decision could properly have been taken merely on the basis that the stock was mixed, that was not the decision in fact taken and so is not the decision under review. If it had been, no doubt a range of other matters might have to have been considered, for example whether the policy relied on really was that prohibition of catches of mixed stocks was desirable irrespective of the degree of 69. 70. mixture and the origin of the constituent stocks (the quotations in the documents before me seem to indicate that the reason for intervention is the effect that exploitation would have on those constituent stocks at risk) and whether without a link to an effect on constituent stocks at risk, a restriction of catches could properly be said to be "necessary to protect any fishery". Further, Mr. Lewis submitted that it was not necessary to know the precise proportion of the Lydney catch that would otherwise have returned to the Wye as long as it could be concluded that some number, however small, would do so. That he said was because the stock in the Wye is assessed to be "at risk", and on that basis its own policy documents required it to move towards zero exploitation. In that respect, once again that was not the decision taken and of no assistance in reviewing the decision that was taken. I observe that it would be on the face of it inconsistent to seek to justify a restriction on fishing in the Severn on the basis that the aim was to achieve zero loss of fish in the Wye, however small the numbers of Wye fish lost might be, while rod fishing on the Wye itself continues to be permitted notwithstanding the (current) estimation that even with a full catch- and- release requirement 20% of the fish caught will die. The first ground of challenge therefore in my judgment succeeds in relation to the 2012 decision. The position is the same or a fortiori in relation to the later decisions, since nothing emerged after 2012 that would strengthen the conclusions drawn from the Exeter report, and insofar as additional expert material was later received it undermined those conclusions. Mr. Lewis points to the receipt of the amended Exeter report by the time of the 2013 decision, but for the reasons given above that document, far from allaying the doubts the Agency should have had, ought to have reinforced them. Insofar as it referred to the reliability of the assignments made, it drew back from the degree of certainty previously expressed. Despite this its revised figures for assignment of fish reduced still further the proportion considered to originate from the Severn (on one basis finding that none of the sample at all could be assigned to the Severn). The Agency did not adopt any of the revised proportions. There is no evidence why they did not, but one may surmise they were so extreme that they were considered to be incredible. If so, that realisation should have been an additional prompt to reconsider whether the original conclusions could possibly be right. 71. In view of that conclusion it is not strictly necessary for me to consider the other grounds of challenge, but I will do so because the Agency will no doubt wish to bear in mind the conclusions I draw on them in considering its decision as to licence conditions in the coming year. Proportionality 72. It was originally the claimant's contention the statutory power to set licence conditions imposed a requirement that the condition set "is proportionate having regard to the facts and circumstances of the case". Ultimately however Mr. Beard accepted that, as Mr. Lewis argued, there was no freestanding requirement of proportionality imposed by the 1975 Act. It was accepted by the Agency that insofar as its decision amounted to an interference with possessions such as to engage A1P1 (see ground 3 below) there was an obligation to act proportionately, but not that the statute itself imposed a separate obligation to that effect. 73. Nevertheless Mr. Beard made submissions under this head which require to be addressed. The Agency could not he said properly consider that a restriction was "necessary" unless it also considered the effect it would have on the licence holder and his livelihood. The Agency had not he said given any consideration to the effect on the claimant but had instead set a condition intended to secure its intended purpose of closure of his fishery. It had done so, he said, in an arbitrary and draconian manner amounting to an abuse of power, acting in contrast to the requirement in imposing a net limitation order for prior consultation, potentially a public enquiry, and confirmation by the Secretary of State. 74. Mr. Lewis submitted that the question whether the restriction is necessary is one for the Agency alone, and could be challenged only on the normal principles of review, which include irrationality but not (separately from A1P1) proportionality. In response to my questions as to why the catch limit had been set at a particular figure without any finding of a threshold above which harm would be caused to the fishery, he said that no such threshold was required; the obligation under the Habitats Directive was to make a decision that produced no adverse effect on the SAC and it was irrelevant that the Agency might have allowed a higher figure and still come to the same conclusion. There was no obligation to permit the highest level of exploitation that would not cause harm. The separate provisions for making a net limitation order were not in point, and the fact that the HRAs referred to the desirability of maintaining to some degree the use of historic fishing techniques showed that the interests of the claimant had been considered. He deprecated any suggestion of abuse of power or improper motive. 75. 76. 77. I accept that nothing can be drawn directly from a comparison of the procedure followed with that required for a NLO. For whatever reason Parliament has not required the same procedure in the case of a limitation on a licence given to a historic installation. It was clearly intended that the protection of the interests of the owner of the installation be limited to the requirement that the condition must be "necessary for the protection of any fishery". It is also plainly the case that the decision as to what is "necessary" is for the Agency to make. But in doing so it will fall into error if it does not address itself to the question required by the statute, which requires a consideration of what is meant in the context by the phrase "necessary to protect any fishery". It is in my view, and I put it no higher since it was not the basis of the challenge before me, arguable that the Agency would not be addressing the question of necessity unless it also addressed whether some less draconian restriction would suffice to protect the fishery and, if the consequences of the restriction proposed would be severe for the persons affected, whether protection of the fishery could be achieved in some other way. The evidence in this case does smack of a fixed determination by the Agency to achieve a particular end. The denial of any intention to close the putcher fishery sits ill with the express policy statement of precisely that intention. The Agency seemed eager to seize on the results of the Exeter report, representing them as 'incontrovertible' before the report was finalised and shown to Mr. Mott. The language of the report itself is curious; the section directed to the conclusion that the Severn Estuary was a 'mixed stock fishery' reads as a somewhat odd encrustation on the rest of the report, and the language of it (data suggest…definitely…mixed stock fishery') has the flavour of a draft that may have been tinkered with. The Agency was willing to take the figures at their highest and present them as incontestable. It adopted a method of apportioning the aggregate catch limit it set which made some sort of proportional allocation as between net fishermen and putcher fishermen as a whole, but was not proportionate as between the putcher licence holders themselves. The documents show a keen recognition of the economic benefits of allowing rod fishing to continue, but make no reference to the economic cost imposed on Mr. Mott or other commercial fishermen of drastically restricting the estuary fisheries. And above all it was willing to brush aside Mr. Mott's concerns and fail to recognise the impossibility of the conclusions it drew from the Exeter report on which the whole system was founded. 78. These matters have caused me considerable concern. But in the end, I have concluded that the evidence before me does not make out a case that the Agency acted in bad faith or for improper motives, or improperly influenced the Exeter researchers in the preparation of their report (and no such case was pleaded). Whether evidence would have emerged to make out such a case if the Agency had disclosed, for instance, its internal working papers and any communications between its officers and the Exeter researchers, I cannot speculate. 79. I am not therefore persuaded that the matters argued under the heading of proportionality make out any separate ground of illegality on the case as presented to me. The Right to peaceful enjoyment of possessions 80. Article 1 of the first Protocol to the ECHR provides: “(1) Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. (2) The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 81. 82. It is common ground that the claimant's lease of the right to fish using the putcher rank constitutes a 'possession' for these purposes, and that he has a sufficient interest to be regarded as a 'victim' of measures to restrict the use of that right. The Strasbourg Court has repeatedly held that A1P1 encompasses three distinct rules; 'distinct' in the sense that they are separately expressed but not implying that they are not interlinked. In Back v Finland (2004) 40 EHRR 1184 they were described thus: “52. The Court reiterates that Article 1 of Protocol No. 1 comprises three distinct rules. The first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of peaceful enjoyment of property. The second rule, contained in the second sentence of the same paragraph, covers deprivation of possessions and makes it subject to certain conditions. The third rule, stated in the second paragraph, recognises that Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest. The three rules are not “distinct” in the sense of being unconnected: the second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the 83. 84. 85. general principle enunciated in the first rule. Each of the two forms of interference defined must comply with the principle of lawfulness and pursue a legitimate aim by means reasonably proportionate to the aim sought to be realised (see Jokela v. Finland, no. 28856/95, §§ 44 and 48, ECHR 2002-IV).” There is thus a distinction drawn between 'deprivation' of possessions and their 'control'. The distinction may not always be entirely obvious. In Tre Tractore AB v Sweden (1989) 13 EHRR 309 the Court sidestepped the question whether a licence to serve alcoholic drinks at a restaurant was itself a possession, holding that the revocation of the licence was to be regarded as an interference with the 'economic interests' associated with the restaurant itself. Since the claimant retained ownership of the restaurant premises, albeit their value had been badly affected, there had been no 'deprivation'. In Back v Finland the claimant was the owner of a substantial debt owed by another individual. However the value of his debt was reduced to a very small level when the debtor entered a statutory scheme for compromise of debts. The court observed that the debt had not been extinguished and said (para 58) that the case resembled both deprivation and control of property and so could not easily be classified as falling within either the second or third of the three rules contained in A1P1. It was therefore considered against the general principle established by the first sentence and the interference with the claimant's property was held to be justified by the social policy of relieving debtors. It was no doubt the case that the apparent reduction in the amount of the debt recoverable did not represent the true loss to the creditor, given the insolvency of the debtor. The differences in language between the second and third of these rules are slight, and the principles against which compliance is measured have been described in very similar terms. It is common ground that the court must ask itself whether the measures in question pursue a legitimate aim, and if so whether the means employed are reasonably proportionate to that aim, and in particular whether they strike a fair balance between the public interest and the rights of the individual, or impose on the individual affected an excessive or disproportionate burden. In Axa General Insurance Ltd v Lord Advocate [2011] UKSC 46 Lord Reed said: “Assessment of whether there has been a violation of A1P1 thus involves consideration of whether a "possession" exists, whether there has been an interference with the possession, and, if so, the nature of the interference: whether, in particular, it constitutes a deprivation of the possession falling within the second rule, or a control on use falling within the third rule, or falls within the more general principle enunciated in the first rule. Given that the second and third rules are only particular instances of interference with the right guaranteed by the first rule, however, the importance of classification should not be exaggerated. Although, where an interference is categorised as falling under the second or third rule, the Strasbourg court will usually consider the question of justification under reference to the language of those specific provisions of A1P1, the test is in substance the same, however the interference has been classified. If an interference has been established, it is then necessary to consider whether it constitutes a violation. It must be shown that the interference complies with the principle of lawfulness and pursues a legitimate aim by means that are reasonably proportionate to the aim sought to be achieved. This final question focuses upon the question whether a fair balance has been struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights (Sporrong and Lönnroth, [[1982] ECHR 5] para 69). In that regard, the Strasbourg court accepts that a margin of appreciation must be left to the national authorities.” 86. Mr. Beard submits that the catch limit set in each year was so severe that it made the use of the claimant's right wholly uneconomic and that accordingly it amounted to a de facto deprivation of his possession. He referred to Sporrong and Lönnroth v. Sweden. In that case, land owned by the claimants had been made subject to permits for expropriation by the local authority with a view to redevelopment. The expropriation never in fact took place and the permits lapsed after many years. In the meantime however the claimants were severely restricted as to what they could do with their land, and in particular prevented from undertaking any development themselves. The court said: “62. It should be recalled first of all that the Swedish authorities did not proceed to an expropriation of the applicants’ properties. The applicants were therefore not formally "deprived of their possessions" at any time: they were entitled to use, sell, devise, donate or mortgage their properties. 63. In the absence of a formal expropriation, that is to say a transfer of ownership, the Court considers that it must look behind the appearances and investigate the realities of the situation complained of ... Since the Convention is intended to guarantee rights that are "practical and effective" … it has to be ascertained whether that situation amounted to a de facto expropriation, as was argued by the applicants. In the Court’s opinion, all the effects complained of … stemmed from the reduction of the possibility of disposing of the properties concerned. Those effects were occasioned by limitations imposed on the right of property, which right had become precarious, and from the consequences of those limitations on the value of the premises. However, although the right in question lost some of its substance, it did not disappear. The effects of the measures involved are not such that they can be assimilated to a deprivation of possessions. The Court observes in this connection that the applicants could continue to utilise their possessions and that, although it became more difficult to sell properties in Stockholm affected by expropriation permits and prohibitions on construction, the possibility of selling subsisted; according to information supplied by the Government, several dozen sales were carried out ...” 87. Mr. Lewis submits that the measures concerned can only be considered a deprivation if the limit is set so low that the right to fish is not worth using at all. This was not the case, since the level had been set at the average level of catch in fact achieved by at least one licence holder, so that it must be the case that at least one person had found it worthwhile to exercise the right to fish at that level. Whereas if the claimant had been deprived of his property that could only normally be justified on payment of compensation of equivalent value, if the measure is properly seen as one of control rather than deprivation, and particularly where the control was imposed on environmental grounds, the UK courts leaned against finding that compensation was ordinarily required. 88. In James v UK (1986) 8 EHRR 123 the Court upheld the UK legislation providing for leasehold enfranchisement, notwithstanding it resulted in the loss of the landlord's property in exchange for a price accepted to be less than its market value. It held (para 43) that there was no fundamental distinction between the terms 'in the public interest' (used in relation to deprivation) and 'in the general interest' (used in relation to control), that a transfer to a private citizen (the tenant) could nevertheless be in the public interest if in pursuit of legitimate social economic or other policies (para 45). Further, it was necessary to show that the measure pursued a legitimate aim and that the means chosen showed a reasonable relationship of proportionality between that aim and the means employed, and in particular that those means did not impose an excessive or disproportionate burden on the individual affected. 89. The availability and level of compensation was a relevant consideration, but A1P1 is not a guarantee of full compensation in all circumstances: “54. The first question that arises is whether the availability and amount of compensation are material considerations under the second sentence of the first paragraph of Article 1, the text of the provision being silent on the point. The Commission, with whom both the Government and the applicants agreed, read Article 1 as in general impliedly requiring the payment of compensation as a necessary condition for the taking of property of anyone within the jurisdiction of a Contracting State. Like the Commission, the Court observes that under the legal systems of the Contracting States, the taking of property in the public interest without payment of compensation is treated as justifiable only in exceptional circumstances not relevant for present purposes. As far as Article 1 is concerned, the protection of the right of property it affords would be largely illusory and ineffective in the absence of any equivalent principle. Clearly, compensation terms are material to the assessment whether the contested legislation respects a fair balance between the various interests at stake and, notably, whether it does not impose a disproportionate burden on the applicants (see the above-mentioned Sporrong and Lönnroth judgment … paras. 69 and 73). The Court further accepts the Commission’s conclusion as to the standard of compensation: the taking of property without payment of an amount reasonably related to its value would normally constitute a disproportionate interference which could not be considered justifiable under Article 1. Article 1 does not, however, guarantee a right to full compensation in all circumstances. Legitimate objectives of "public interest", such as pursued in measures of economic reform or measures designed to achieve greater social justice, may call for less than reimbursement of the full market value. Furthermore, the Court’s power of review is limited to ascertaining whether the choice of compensation terms falls outside the State’s wide margin of appreciation in this domain” 90. James was not a case of expropriation for the benefit of the state, but of transfer on favourable terms to other citizens. The transfer of value was justified on grounds of social policy to favour tenants. 91. Mr. Lewis particularly relies on R (Trailer & Marina (Leven) Ltd) v Secretary of State [2004] EWCA Civ 1580. The claimant owned a stretch of canal that had been designated a Site of Special Scientific Interest. Initially the claimant had been paid £19,000 pa to refrain from activities considered harmful, but a change in legislation enabled the relevant body to impose equivalent conditions without compensation. The claimant's challenge sought a decision of incompatibility in respect of the new legislation, alleging that the removal of the right to compensation infringed its rights under A1P1. Neuberger LJ delivered the judgment of the court, holding that there was no general doctrine that measures amounting to control of property as distinct from deprivation generally required compensation. He noted that the reasons stated for introduction of the legislation challenged included a statement of policy that public funds should be better devoted to encouragement of conservation rather than compensating landowners. At para 65 he said: “We accept, of course, that the consequence of the amendments effected by the 2000 Act must have been to diminish, sometimes substantially, the scope of the uses to which an SSSI could be put, and accordingly to reduce, sometimes substantially, the income which could be obtained from activities on an SSSI, and consequently its market value. It can fairly be said that, in those circumstances, the public benefit enjoyed as a result of the amendments effected by the 2000 Act will, in the absence of any compensation provisions, have been at the expense of the owners and occupiers of SSSIs. However, given the purpose and genesis of the legislation, and the jurisprudence of the ECtHR, that cannot of itself justify an argument that there has been an infringement of the Article 1P1 rights of the owner of an SSSI whose value has been substantially diminished as a result of the amendments effected by the 2000 Act.” 92. The effect of this, Mr. Lewis submitted, was that in cases of control rather than deprivation the absence of compensation did not normally mean that a decision fails to achieve the required fair balance, and further that in cases of environmental control the court should accept that individuals should not receive public funds in return for being prevented from pursuing activities that damage the environment. Further, on the question whether a decision reasonably achieves the intended aim, the court should accept the judgment of the expert officials entrusted with the decision unless it was manifestly without reasonable foundation. 93. I do not consider that the Trailer & Marine case goes as far as Mr. Lewis submits. It is important to bear in mind that it was a challenge to the legislation as a whole, and not a particular executive decision made under it. Thus the question of infringement of A1P1 had to be considered in principle and issues as to the margin of appreciation related to the general judgment of the legislature and not the specific circumstances of the claimant. Although the court was referred to the possibility that a measure could amount to a de facto deprivation of property, it was not contended that the legislation in fact had that effect, either on the claimant or generally. The court recognised at para 70 and 71 that there were powers available to compensate an owner in a case (referred to as 'an extreme case') where the application of the legislation resulted in a de facto appropriation, or was necessary to avoid a breach of A1P1. It does not therefore support a conclusion that any restriction on property on environmental grounds can be made without a requirement for compensation. Turning then to the decisions challenged in this case, it is accepted that the aim pursued (conservation of salmon in the Wye) was a legitimate one. The real issue is whether the steps taken were reasonably proportionate to achieving that aim. Given the finding that there was no reasonable basis for concluding that the Severn estuary putcher installations had any material effect on the Wye fishery, and therefore that there was no basis for concluding that restricting the Severn fishery would advance the stated aim, it inevitably follows that those restrictions cannot have been proportionate in pursuit of that aim, whether they be characterised as deprivation or control. If I had concluded that the Agency had a reasonable basis to consider that 56%, or any substantial proportion, of the fish caught would be prevented from spawning in the Wye, the question whether the restrictions imposed amount to a deprivation or a control is not an easy one. The claimant's right is a purely economic one, to catch fish using a particular method. If he is prevented from catching fish, his right is to that extent extinguished, not merely made less valuable. It is not a right appurtenant to some physical asset such as a piece of land (as in the Sporrong, Tre Tractore and Trailer & Marine cases) which continues to exist and can still be used or sold, even if less valuable. On the other hand it is not a right to catch a particular number of fish, and was already subject to come control in that the licence he was obliged to obtain required payment of a fee and could limit the season in which he was permitted to fish. Even though the catch limit had the effect of restricting his catch to some 5% of the previous level, he still in principle owned the right and could exploit it to that extent. In my judgment this case, like that in Back v Finland, has elements both of deprivation and of control. The claimant’s right is largely but not entirely extinguished. It could be exploited and would presumably have some small value if sold for leisure interest rather than commercial use. It should be considered under the general statement of principle with which A1P1 commences. Given the extent of the restriction imposed, which eliminated at least 95% of the benefit of the right, it is to be considered as closer to deprivation than mere control, and that balance is relevant when considering the proportionality of the measure challenged. In adopting the measure decided on, there is no evidence that the Agency considered the extent of the effect on the claimant and his livelihood in any meaningful way at all. Though the HRAs refer to the desirability of permitting the continuation of historic fishing methods to an extent described as 'residual' they did not address what the consequences would be for the rights holders affected at all, looking no further than their own statement of the conservation objective. 94. 95. 96. 97. 98. There is thus no evidence that any balanced consideration took place at all. It would have been relevant to that consideration that the claimant's rights were of a commercial nature, so that by making them uneconomic to exercise he was being deprived of his livelihood and not merely of a pleasurable leisure activity or the opportunity to maintain an ancient tradition. So far as the claimant is concerned the position is exacerbated because the method chosen of levelling all permitted catches down to the previous lowest meant that by far the greatest impact fell on the him whereas others who may only have used their rights for leisure or hobby purposes would be less affected, and possibly scarcely affected at all. 99. 100. In my judgment, the effect is that even if the Agency could properly have imposed the total catch limit that it did, the size of that limit and the way in which it was apportioned would still have meant that the claimant has been required to shoulder an excessive and disproportionate burden, such that a breach of A1P1 could only be prevented by payment of compensation. I will list a hearing at which this judge will be handed down. I anticipate that there will be matters arising and invite counsel to agree an order to reflect the judgment. If they are able to do so, there need be no attendance. If not, and the matters arising can be dealt with in 30 minutes I will do so on that occasion. If longer is required counsel should contact my clerk with and agreed time estimate and a further hearing will be listed.