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

A court reviewing a regulator’s scientific, technical and predictive assessment must not substitute its own inexpert evaluation for a tenable expert view. The regulator must nevertheless provide a sufficient explanation of how the science supports its decision.

For European Convention on Human Rights Article 1 of the First Protocol purposes, retaining a legal right does not prevent an interference from being close to deprivation where it removes almost all practical benefit. Environmental control remains subject to a fair balance. Compensation may be required where a particular person bears an excessive and disproportionate burden.

The Environment Agency imposed annual salmon catch conditions on Mr Mott’s historic putcher-rank fishery in the Severn estuary. The limits reduced a previous annual catch of about 600 salmon to between 23 and 30 fish. The Agency relied on scientific material indicating that the estuary was a mixed-stock fishery and that catches affected the River Wye Special Area of Conservation.

HHJ David Cooke, sitting in the Administrative Court, allowed Mr Mott’s judicial review claims and declared the conditions irrational and contrary to Article 1 of the First Protocol. He also permitted a claim for damages: [2015] EWHC 314 (Admin). The Agency appealed.

The central issues were the permissible intensity of judicial review of a regulator’s predictive scientific assessment, whether the severe catch limits were proportionate under A1P1, and whether the late damages amendment should stand.

1. The appeal was allowed in part. The judge had erred in holding the catch conditions irrational. The Agency’s decisions rested on an unchallenged assessment of risk to the Wye salmon fishery, scientific consensus that salmon generally return to their river of origin to spawn, and genetic modelling of the sampled fish.

2. A reviewing court must be slow to impugn a scientific conclusion of an expert statutory regulator, and slower still to impugn its educated predictions. It must not undertake its own detailed assessment of scientific models or calculations, or substitute its inexpert view for a tenable expert opinion. The regulator must, however, explain sufficiently how the scientific material relates to its decision, particularly where it seeks judicial respect for specialist expertise.

3. The first-instance judge had entered into a merits assessment of genetic evidence and migratory behaviour, made errors about the relevance of river size and spawning areas, and placed excessive weight on his calculation that the Agency’s approach implied an implausible Wye salmon run. Those were matters of scientific and predictive judgment. The Agency’s approach had also been accepted by the statutory conservation bodies consulted during the assessment process.

4. The appeal against the A1P1 ruling was dismissed. Although Mr Mott retained and could sell his leasehold fishing right, the catch limits removed at least 95% of its benefit and, given the short remaining term, were in reality closer to deprivation than ordinary control. Following R (Trailer & Marina (Leven) Ltd) v Secretary of State for the Environment [2004] EWCA Civ 1580, the relevant question was whether a fair balance had been struck. The Agency had not meaningfully considered the particular impact on Mr Mott or the unequal burden created by setting all catches at the previous lowest level. Compensation was therefore required to avoid a breach.

5. The appeal against permission to add a damages claim was also dismissed. The case-management decision was open to the judge: the legality challenge was substantial, and a timely damages claim would in any event have been addressed after that issue.

• Court of Appeal (Civil Division): Allowed the Environment Agency’s appeal against the irrationality declaration, but dismissed its appeals concerning A1P1 and the late damages amendment: [2016] EWCA Civ 564.
• High Court, Administrative Court: Allowed Mr Mott’s judicial review claims, declared the catch conditions irrational and incompatible with A1P1, and permitted an amendment to claim damages: [2015] EWHC 314 (Admin).