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

A public authority cannot rely mechanically on available expert evidence. It must consider whether the evidence is credible and reasonably supports the conclusions drawn from it. A restriction imposed under paragraph 14A of Schedule 2 to the Salmon and Freshwater Fisheries Act 1975 must be necessary for the protection of a fishery. Article 1 of Protocol No 1 requires a fair balance between the public interest and the individual’s rights. A restriction which makes a commercial fishing right largely uneconomic may amount to an interference closer to deprivation than control. Where the authority has no reasonable basis for concluding that the restriction advances the conservation objective, the measure is disproportionate. Even where the power exists, the authority must meaningfully consider the effect on the rights-holder and livelihood, including whether a less severe measure would suffice.

The claimant held, with the interested party, a lease of a historic putcher fishery in the Severn estuary. The Environment Agency imposed annual licence conditions limiting the catch to 30 fish in 2012, 23 in 2013 and 24 in 2014. The limits were based principally on the Exeter report, which estimated that 56.4% of salmon caught at Lydney originated from the River Wye.

The claimant sought judicial review on grounds including irrationality, failure to comply with the statutory requirement of necessity, disproportionality and breach of Article 1 of Protocol No 1 to the ECHR. The central issues were whether the Agency had rationally relied on the genetic evidence and whether the restrictions were lawful and proportionate.

1. Irrationality. The claim succeeded. The Agency was entitled to consider the Exeter report and to assess the evidence available when each decision was made. It was not entitled to rely blindly on available expert evidence without considering whether it was credible or reasonably supported the conclusions drawn from it.
2. The critical reasoning was that 56.4% of the Lydney catch originated from the Wye and that a similar proportion would otherwise have returned there to spawn. The implications were objectively impossible when tested against the Agency’s own estimates of salmon stocks. The only rational conclusion was that the Exeter report provided no basis for estimating the number of Lydney salmon that would otherwise spawn in the Wye. The later decisions were no stronger, and the revised report reinforced rather than dispelled the doubts.
3. The Agency could not defend the decisions on the alternative basis that Lydney was merely a mixed-stock fishery. That was not the basis on which the decisions were actually taken. The court reviews the decision made, not a different decision which might have been lawfully made.
4. There was no freestanding statutory requirement of proportionality under the Salmon and Freshwater Fisheries Act 1975. The statutory question was whether the condition was necessary for the protection of a fishery. It was arguable that this required consideration of whether a less draconian restriction would suffice, particularly where the consequences were severe.
5. Under Article 1 of Protocol No 1, the court must consider the nature of the interference, its legitimate aim and whether a fair balance was struck. The fishing right had characteristics of both deprivation and control, but the restriction eliminated at least 95% of its benefit and was closer to deprivation. The Agency had not meaningfully considered the claimant’s commercial livelihood or the unequal impact of its method of allocating catch limits.
6. Even assuming that the aggregate catch limit could lawfully have been imposed, its size and allocation imposed an excessive and disproportionate burden. Compensation would have been required to avoid breach of Article 1 of Protocol No 1.

The challenged decisions were therefore unlawful. The judgment was handed down with consequential orders to be agreed or addressed at a further hearing.