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

Under Article 6(3) of the Habitats Directive, the concept of a plan or project is broad and includes an activity which may indirectly affect a protected site. An appropriate assessment is required unless significant adverse effects can be excluded on the basis of objective information. The competent authority must make the assessment itself, apply the precautionary principle, consider cumulative effects and give considerable weight to the advice of the statutory nature conservation body. Where conflicting expert evidence leaves doubt, authorisation cannot lawfully be granted. The assessment and reasons must be recorded. A private statutory harbour authority may be a competent authority, and commercial interests cannot override its public environmental duties. The original Habitats Regulations failed fully to transpose the Directive because their special conservation order regime did not cover relevant marine operations.

The claimants, acting on behalf of the Lymington River Association, sought judicial review of Wightlink’s decision to replace its existing ferries on the Lymington–Yarmouth route with larger W-class ferries. The route passed through protected European sites. The claim challenged the decision under the Habitats Directive and the Conservation (Natural Habitats etc) Regulations 1994, and also alleged inadequate transposition of the Directive by the United Kingdom.

The principal questions were whether the introduction of the ferries was a plan or project, whether there was a competent authority, whether an appropriate assessment had been carried out, and whether the original domestic regulations gave adequate powers to protect the sites.

1. Declarations granted. Wightlink’s decision to introduce the W-class ferries on 25 February 2009 was unlawful. The Habitats Directive had not been fully and properly transposed into domestic law by the original form of the Habitats Regulations.
2. The introduction and operation of the W-class ferries constituted a project within Article 6(3). Applying Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserij [2004] ECR-7405, the relevant question was whether the activity created a risk of significant adverse effects, directly or indirectly. The requirement for assessment was triggered unless that risk could be excluded.
3. Wightlink was a competent authority. Its private status did not prevent it from exercising public environmental functions as statutory harbour authority. Its commercial interests had to yield to its public duties.
4. The board had to make the appropriate assessment itself. It had to consider the best scientific knowledge, cumulative effects and the site’s conservation objectives. It was not obliged automatically to follow Natural England, but, given its statutory role, considerable weight had to be given to its advice and cogent and compelling reasons were required for departure.
5. The board’s process was unlawful. Its reasons were not properly recorded, it did not explain its rejection of Natural England’s contrary advice or engage with the methodological disagreement between the experts, and it misstated the task as deciding whether it was satisfied in the light of ABPmer’s report. The commercial imperative to introduce the ferries further tainted the decision. Public consultation did not provide an independent ground of unlawfulness in the circumstances.
6. The original regulation 22 of the Habitats Regulations did not permit special nature conservation orders to control relevant marine operations. The resulting lacuna meant that the Directive had not been fully transposed. However, the Directive did not require DEFRA to reserve a general second-tier power to intervene in irrational or irresponsible decisions of other competent authorities.

First-instance judicial review in the High Court (Administrative Court). Permission was granted because the issues were not academic, notwithstanding that injunctive relief was no longer sought.