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

A court reviewing a regulator’s scientific and predictive assessments must respect its expertise and avoid substituting an inexpert view for a tenable expert opinion. The intensity of review depends on the regulatory context. The regulator must provide a sufficient explanation of how the science relates to its decision.

Environmental restrictions on property must strike a fair balance between the community’s interests and the burden on the individual. The survival of formal property rights does not determine the practical severity of the interference. Compensation is not generally required for controls on property. It may nevertheless be necessary where severe restrictions and their unequal apportionment impose an excessive individual burden, even though the environmental limits could properly be imposed.

Nigel Mott and David Merrett held leasehold rights to fish for salmon using a putcher rank in the Severn estuary. Mott operated the fishery commercially. The Environment Agency, the statutory regulator, imposed annual licence conditions which reduced their permissible catch by approximately 95%. It considered the restrictions necessary to protect salmon stocks in the River Wye, a Special Area of Conservation. Its assessment relied principally on genetic research estimating the origins of salmon caught in the estuary.

Mott brought two judicial review claims challenging the conditions for the 2012, 2013 and 2014 seasons. HHJ David Cooke, sitting in the Administrative Court, held that the decisions were irrational and infringed Article 1 of the First Protocol to the European Convention on Human Rights: [2015] EWHC 314 (Admin). He also held that, independently of irrationality, the burden imposed required compensation. A supplementary judgment permitted Mott to add a damages claim.

The Agency appealed those conclusions. The principal issues were the proper review of scientific and predictive regulatory decisions, the fair balance required for environmental restrictions on fishing rights, and permission for the late amendment.

1. The appeal was allowed in part, unanimously. The declaration that the catch-limit decisions were irrational was displaced. The appeals against the finding of an unlawful interference with Article 1 of the First Protocol and permission to add a damages claim were dismissed.

2. Rationality had to be assessed using the information available when each decision was taken. Scientific and predictive assessments by an expert statutory regulator attracted an enhanced margin of appreciation. Their review remained sensitive to the regulatory context and the presence of competing interests. Applying the guidance in R (British Union for the Abolition of Vivisection) v Secretary of State for the Home Department and Secretary of State for Environment, Food and Rural Affairs v Downs, the judge had improperly substituted his own analysis of scientific models and calculations. The Agency’s decisions combined an unchallenged assessment of risk to the Wye fishery, scientific consensus about salmon returning to their rivers of origin, genetic modelling and competing public and private interests. The judge also gave insufficient weight to the acceptance of the approach by the consulted conservation bodies.

3. A regulator relying on technical expertise had to explain sufficiently how the science supported its decision. The Agency’s presentation below had shortcomings, but those shortcomings did not justify the judge’s scientific conclusions. Further explanatory evidence on appeal could exceptionally be admitted where necessary to present relevant public interest factors. The application also had to be proportionate. The Agency’s further evidence was unnecessary and disproportionate and was refused. The observations that later expert disagreement would not necessarily establish irrationality, and that model suitability depended on available alternatives, were obiter.

4. The property-rights issue was considered on the assumption that the Agency could properly impose the total catch limits. Under Sporrong and Lönnroth v Sweden, the practical realities had to be examined when considering de facto expropriation. Mott could still sell his leasehold rights, but the loss of at least 95% of their benefit and the lease’s limited remaining duration made the interference closer to deprivation than mere control. A definitive classification was unnecessary because controls also required a fair balance.

5. R (Trailer & Marina (Leven) Ltd) v Secretary of State for the Environment established no general requirement to compensate for property controls. It equally did not establish that every environmental restriction could be imposed without compensation. That case concerned legislation as a whole, whereas the present case concerned a particular executive decision. The Agency had not meaningfully considered the effect on Mott’s livelihood. Equal catch ceilings concentrated the greatest burden on his commercial operation, while affecting leisure fisheries much less. The extent and apportionment of the restriction imposed an excessive burden which, in his circumstances, required compensation.

6. The late amendment was within the judge’s case management discretion. Damages would have been addressed after legality even if claimed initially. The Agency’s suggested changes to counsel or resources did not establish prejudice requiring refusal. The permission to pursue damages stood; their quantification was not determined.

• Court of Appeal (Civil Division) — [2016] EWCA Civ 564 : allowed the appeal on irrationality, but dismissed the appeals concerning Article 1 of the First Protocol and permission to add a damages claim. Refused the Agency’s application to adduce further evidence.
• High Court, Administrative Court — [2015] EWHC 314 (Admin) : HHJ David Cooke allowed the judicial review claims concerning the 2012–2014 catch conditions. He declared the decisions irrational and incompatible with Article 1 of the First Protocol. He also found that compensation was necessary independently of irrationality. A supplementary judgment permitted amendment to claim damages.