Bruton, R (on the application of) v Attorney General to the Prince of Wales & Ors

At the permission stage, delay may defeat a judicial-review claim concerning alleged breach of environmental obligations, even where Community-law rights are relied upon. The court must consider the claimant’s delay, the prejudice to affected parties and the practical consequences of granting permission.

An appropriate assessment under Article 6(3) of the Habitats Directive must address the relevant plan or project and its possible effects in light of the site’s conservation objectives. Where different competent authorities have territorially different responsibilities, one authority’s assessment may not discharge another authority’s duty. Permission may nevertheless be refused where the challenge is out of time or lacks an arguable evidential foundation.

The claimant sought permission for judicial review concerning an oyster farm operating within a Special Area of Conservation and, in part, a Site of Special Scientific Interest. He alleged that the Duchy of Cornwall had granted a licence without the appropriate assessment required by the Habitats Directive and the Conservation (Natural Habitats, &c.) Regulations 1994. He also challenged assessments said to have been undertaken by Natural England before licences were granted in 2008.

The Duchy relied on the construction of regulations 47 and 48. Natural England accepted that an assessment was required in relation to the SSSI and maintained that it had carried one out. The central issues were whether the Duchy owed the alleged duty, whether the claim against it was defeated by delay and prejudice, and whether there was an arguable case that Natural England’s assessment had inadequately addressed the risk of spawning by triploid oysters.

1. Permission against the Duchy. The claim relating to the 2005 licence was brought approximately three and a half years late. The delay was unexplained and had caused substantial prejudice to the Duchy and, particularly, the oyster-farm operator, which had invested heavily and would face uncertainty and potential loss. Reliance on Community-law obligations did not prevent delay and prejudice being taken into account. Permission to challenge the 2005 licence was therefore refused.
2. The court considered the argument that regulations 47 and 48 did not apply to the licence. Earlier Administrative Court decisions, including R v Sefton Metropolitan Borough Council and R (Boggis) v Natural England, supported the contrary conclusion. The court nevertheless regarded the argument based directly on Article 6(3), and potentially Article 6(2), as highly persuasive if the domestic regulations failed to give effect to the Directive.
3. The possible declaration that the Duchy was a competent authority was hypothetical. No agreement for lease or other relevant future decision was before the court, and the proposed declaration could not properly be granted on the basis of undeveloped allegations concerning dredging or trawling.
4. Permission against Natural England. Natural England’s material suggested that the assessment had focused on the use of triploid oysters and the reduction of spawning risk. However, a draft assessment stated that triploid stock was intended to minimise, rather than eliminate, that risk. There was no evidence showing how the risk had been considered or managed. The court was just persuaded that an arguable case existed that the assessment had not adequately addressed the risk of spawning. Permission was granted against Natural England on that narrow issue.
5. The claimant was ordered to pay the Duchy’s costs, summarily assessed at £7,500. A limited protective costs order was made in favour of the claimant against Natural England, capping his liability at £15,000 and requiring both sides to proceed with junior counsel only.

First-instance permission hearing in the Administrative Court. No prior appellate decision is stated in the judgment.