Isle of Anglesey County Council & Anor v Welsh Ministers & Ors, Court of Appeal - Queen's Bench Division, May 06, 2008, [2008] EWHC 921 (QB)
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Isle of Anglesey County Council & Anor v Welsh Ministers & Ors, Court of Appeal - Queen's Bench Division, May 06, 2008, [2008] EWHC 921 (QB)
Neutral Citation Number: [2008] EWHC 921 (QB)Claim No: HQ07X01101IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISION(Sitting in Caernarfon County Court)Royal Courts of JusticeStrand, London, WC2A 2LLDate: 06/05/2008Before :THE HONOURABLE MR JUSTICE DAVIS- - - - - - - - - - - - - - - - - - - - -Between :- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -Mr John Howell QC and Miss Emma Dixon (instructed by Alan Carr) for the ClaimantsMr Clive Lewis QC (instructed by Treasury Solicitors) for the First DefendantsMr Guy Fetherstonhaugh QC and Mr James Segan (instructed by Andrew M Jackson) for the Second, Third and Fourth DefendantsHearing dates: 3 - 7 March 2008- - - - - - - - - - - - - - - - - - - - -JudgmentMr Justice Davis: Introduction1. This case relates to an oyster and mussel fishery in the eastern Menai Strait. The fishery extends over some 1928 acres (761 hectares). The claimants between them are the legal owners of the foreshore and seabed which is included in the fishery. The claimants - subject to obtaining the necessary planning and other statutory consents - wish to see constructed a marina on their land. The proposed marina site would extend to some 10 hectares: of which some 7 hectares would be within the fishery.2. The fishery in question was created (or purportedly created) for a 60 year term by the Menai Strait Oyster and Mussel Fishery Order 1962 (``the 1962 Order''). The 1962 Order was made (or purportedly made) under the powers conferred by the Sea Fisheries Act 1868 (``the 1868 Act'') by the Minister of Agriculture, Fisheries and Food, whose successors for these purposes are the Welsh Ministers, the first defendants in these proceedings. The grantees under the 1962 Order were the Local Sea Fisheries Joint Committee for the Lancashire and Western Sea Fisheries District, whose successors are the North Western and North Wales Sea Fisheries Committee, the second defendants in these proceedings. As contemplated by the 1962 Order itself, the Committee did not itself exercise the fishery rights. Instead it permitted others to do so, on a commercial basis, dividing the fishery up into 6 areas for that purpose. Two of such areas are currently leased by the third and fourth defendants, Andrew Wilson and Extra Mussel Limited.3. The second, third and fourth defendants strongly oppose the proposed marina development. They consider that it will gravely prejudice the viability of the mussel fishery (oysters, in practice, being of no significance). Many of the disputes raised have been, and perhaps will continue to be, the subject of debate and decision elsewhere: in the context of planning and other statutory consents needed. But the present proceedings raise even more fundamental issues. The claimants say that, subject to obtaining all the necessary statutory consents, they have the legal right to construct such marina and the defendants have no legal basis for disputing that. The second, third and fourth defendants, on the other hand, say that the claimants, and irrespective of whether or not they can obtain planning and other statutory consents, have no legal right to construct such marina so as to interfere with the fishery.4. The actual issues argued before me were, in summary, these:-4.1. Whether the 1962 Order was invalid and ultra vires (that is to say, not lawfully sanctioned by the 1868 Act). The claimants say that it was. All the defendants say that it was not.4.2. If the 1962 Order was not ultra vires, whether the conferred fishery right was made effectually subject to the claimants' asserted rights as landowners to build the marina by reason of Articles 16 and 18 of the 1962 Order. The claimants say that it was. The second, third and fourth defendants say that it was not.4.3. Whether the construction of such marina would be illegal and contrary to section 7 of the Sea Fisheries (Shell Fish) Act 1967. The claimants say that it would not be. The second, third and fourth defendants say that it would be.5. The points raised are both interesting and important: important certainly to the parties but, as appeared from the arguments before me, potentially having wider implications also. It has to be said that the issues raised in some respects were somewhat arcane and in all respects were complex. They involved a wide-ranging examination of the law relating to fisheries and of the statutory provisions in question. Although the lengthy written arguments initially put in by some of the parties variously condemned the opposing arguments as ``unarguable'', ``misconceived'' and so on such protestations had become increasingly muted by the third day of the very closely argued hearing before me: as also had the initial suggestions to the effect that the provisions of the 1868 Act and 1962 Order were...See the full content of this document
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