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

MR JUSTICE BURTON: This has been the hearing of an application for permission to apply for judicial review, which has been adjourned into court, unusually, after consideration by a single judge, without granting permission, but so that the matter of permission could be decided before me. It relates to a claim by Mr Bruton, which is brought against two Defendants, and involves four interested parties.

It is not unusual in the planning field to involve, and to have to involve, a large number of Defendants and interested parties, but it nevertheless does, by that very fact, involve extra expenditure of costs on all sides. That is particularly so against the background of the fact that the Claimant here is a single litigant and is seeking the assistance of a protective costs order, an application with which I shall deal later.

The Claimant also, as is also very often the case in the planning field, seeks to enjoin, although without actually seeking an injunction, the continued operation of a substantial business by the fourth interested party, the Duchy of Cornwall Oyster Farm Limited, whose main principal, Mr Wright, has put in a witness statement which I have had the opportunity of reading, and who has dedicated a good deal of his time, and certainly, I suspect, most, if not, all, of his capital to the development of the oyster farm, for which he obtained a licence in 2005 from the Duchy of Cornwall, the Attorney-General to which is enjoined as the first Defendant.

The second Defendant, Natural England, is the body which is rendered responsible for considering the conservation requirements of Sites of Special Scientific Interest (“SSSIs”), among other things, under the aegis of the Wildlife and Countryside Act 1981, which imposes a large number of obligations upon it.

In this case the SSSI is an area of water off the coast of Cornwall, which, as I understand it, is some 277 hectares in size. It forms part of a much larger area called an SAC, a Special Area of Conservation. The SAC is the subject matter of particular protection under Community law. The relevant Council Directive of 21st May 1992 (92/43/EEC) is the Council Directive on the Conservation of Natural Habitats and of Wild Fauna and Flora (“the Habitats Directive”).

The words "appropriate assessment" have become a term of art, and it is the existence or otherwise of an appropriate assessment which is in issue on this application. The Claimant alleges that both the first Defendant, the Duchy, and the second Defendant, Natural England, owe obligations to have carried out an appropriate assessment, in relation to the implications for the relevant site, the oyster farm operated by the fourth interested party.

Three other interested parties have been joined — the Environment Agency, the Marine and Fisheries Agency and DEFRA — who have not taken part in this application before me, but who, it is also suggested, may have obligations in relation to the supervision of the SAC and/or SSSI in this case.

The oyster farm extends wider than the SSSI to which I have referred. It extends into other parts of the much larger SAC, although, on the evidence before me, it is not clear what the precise area of the oyster farm is. Natural England only has obligations, to which I have referred, in respect of operations within the SSSI.

The Directive has been effected in this country by the Conservation (Natural Habitats, &c.) Regulations 1994. The relevant regulations which have been in issue before me are primarily Regulations 47 and 48.

Regulation 47 reads as follows:

What is said by Mr Crow QC for the Duchy is that Regulation 47 means that Regulation 48, to which I shall return, has no relevance to the instant case, because it would only be relevant were we considering the provisions of Regulations 54-85, which we are not. Regulation 48 introduces, under the statutory heading "Assessment of implications for European site" the provision that:

There are two other regulations which are relevant for the purposes of my consideration. The first is Regulation 3. Under the heading "Implementation of Directive", Regulation 3(2) states:

One of those enactments is the relevant part of the Wildlife and Countryside Act 1981 to which I earlier referred.

The other regulation is Regulation 6, which defines "competent authority" as follows:

The brief facts in this case are that, as I have already indicated, in 2005 a licence was granted by the Duchy to the fourth interested party, pursuant to which the fourth interested party was permitted to enter upon the land and sea owned by the Duchy and to put into effect its oyster farm, which it has thereafter commenced to continue to do. It is suggested by the Claimant that the Duchy owed a duty, either under the Regulations or under the Habitats Directive or both, to have carried out an appropriate assessment before granting that licence, and that if that licence is subsequently converted into an agreement for lease, it would be under an obligation to carry out a further appropriate assessment.

It is common ground that the Duchy has not carried out an appropriate assessment. It regards itself as under no duty to do so. It is a landlord, obviously a very substantial landowner, and not one which expects to be governed or is, on proper construction, governed by the directives and regulations to which I have referred. I shall return to that in a moment.

The issue of what an appropriate assessment is, and its circumstances, has been recently considered by the European Court in Case C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee and another v Staatsecretaris van Landbouw, Natuurbeheer en Visserij [2004] ECR I-7405, to which my attention has been helpfully drawn by Mr Lasok QC for the Claimant. There is a description of the concept of appropriate assessment in paragraphs 52 to 54 of the judgment of the court in that case:

That is the issue therefore between the Claimant and the first Defendant: whether the first Defendant is under a duty to have carried out an appropriate assessment at the time of granting a licence or not. If it was under such a duty, it is common ground that it did not carry out an assessment.

The issue between the Claimant and the second Defendant, Natural England, is different. Natural England accepts that in relation, at least, to that part of the oyster farm which falls within the SSSI, Natural England is, and was, under an obligation to carry out an appropriate assessment at the time when it considered and granted licences to the fourth interested party to keep, or place, oyster sacks and other trellises and suchlike in the intertidal and subtidal areas, two of them, one in August 2008 and one in September 2008.

So far as the August 2008 licence is concerned, that was not takenup. So far as the September 2008 licence is concerned, that lasts until 2010, and it may well be that the fourth interested party will take up the licence.

Natural England accepts that it was under an obligation to carry out an appropriate assessment at the time of the grant of those two licences, and its case is that it did so. The Claimant challenges that fact.

It became apparent, by dint of a narrowing of the issues at the outset of this hearing, precisely what the real issue is between the parties. It is noteworthy that the Claimant has not produced what I might otherwise have expected, namely expert evidence that the conditions in the SSSI are such that it cannot possibly have been that an appropriate assessment was carried out, notwithstanding the assertion to the contrary by Natural England, for some reason or reasons. That has not occurred. Interestingly, it is the evidence and case put forward by Natural England which has made clear what case it is that the Claimant has to put forward.

Natural England, for whom Mr Machin has appeared, put forward in Mr Machin's skeleton argument the very full explanation as to how it carried out the assessments leading up to the August and September licences. The only challenge that had been made by the Claimant prior to that explanation was effectively an observation that they were quite speedily done, and done in a relatively short period of time, and by an apparently small number of visits, but the position is now clear.

Natural England's case is that it carried out an appropriate assessment in relation to the trestles, trellises, bags and sacks and there is no challenge to that aspect of its assessment. It did not carry out, at that time, a separate assessment, in any other way, of the site, although it accepts that it was necessary for it, before it could grant a licence for the placing of any accoutrements in the SSSI, to be satisfied that the placing of such items for the purpose of the proposed or existing oyster farm was appropriate. Natural England's case is that it had already done that, and remained and remains of the same view as it had previously been.

It has not been specifically said by Mr Lasok that, provided it had that aspect in mind, that would have been inappropriate, although he submits that an appropriate assessment is necessary at the time of the grant of each licence. Because they are plans or projects falling within either the Directive or the Regulations, it is not necessary to start again from scratch each time. That is what Natural England asserts, namely that it had reached a conclusion in 2006 as to the appropriateness of the oysters that were proposed to be reared in the farm and did continue to look again at that question over the next 2 years, as is apparent from the correspondence to which I shall turn later.

It remained the position in August and September 2008 that, on the basis of its understanding, the oyster farm was indeed satisfactory and that an appropriate assessment could be signed off. The understanding was that, with the exception of an earlier short-term use of a different kind of oyster, namely a diploid oyster — and it has not been specifically suggested by Mr Lasok that that conclusion was inappropriate — the continuing use of the oyster farm should only be for triploid oysters, which were, and are, it is submitted by Mr Machin on the basis of his case, infertile. If they be infertile, then there is no risk of spawning of the newly-introduced Pacific triploid oysters so as to cause damage to either the habitat or, in particular, to the existing native oysters. On that basis, the case for the first Defendant, Natural England, is that it has carried out an appropriate assessment, including an assessment of the appropriateness of theoyster farm itself, and is not arguably in breach.

I turn to the position of the first Defendant. There is, certainly at some future time, likely to be a considerable battle as to a number of interesting legal questions, but they were, most of them, conceded for the purposes of today. The first is whether the Duchy is a public body and/or a competent authority and/or an emanation of the state for the purposes of the Directive and/or the Regulations. For the purpose of today, that was conceded.

What argument remained, however, on the question of construction of the Regulations and Directive, as put forward by Mr Crow, was his assertion that the clear terms, as they would otherwise be, of Regulation 48 does not apply to his client, because the words of Regulation 47 appear expresslytorelegate Regulation 48 to activities and matters which do not include — that is common ground — the grant of the licence in this case.

Mr Lasok's answer to that is a powerful one, notwithstanding the reliance by Mr Crow on two previous decisions of the Administrative Court, which state in terms that Regulation 48 does not apply in a circumstance such as this. The first of those two cases is R v Sefton Metropolitan Borough Council [2001] Env LR 10 per Moses J, where, in trenchant terms, at paragraph 66 of his judgment, he says:

The other decision is one by Blair J, also in the Administrative Court, R (Boggis) v Natural England [2009] Env LR 20, where he reached a similar conclusion at paragraph 84 of his judgment. However, Blair J ended with the following somewhat elliptical words:

I have now to consider exactly that, although this is only the permission stage. It seems to me that Mr Lasok's arguments are powerful ones. First of all, he submits that the obligation under the Directive is placed upon the Member State, and that the Member State must bring in regulations which conform with the Directive, and if a combination of Regulation 48 and 47 does not deal with the situation before me today, it ought to, by virtue of the wide terms of Article 6(3), and consequently that the Directive would then have direct effect, either by reference to Article 6(3) or, if necessary, if, as is conceded for the purposes of today, the Duchy is an emanation of the state, then by reference to Article 6(2). In those circumstances he relies upon the authorities of Marshall v Southampton and South-West Hampshire AHA ECR 1986 0723 and Marks & Spencer plc v Commissioners of Customs and Excise ECR 2002 1-06325, to which I was referred.

Certainly for the purposes of today, it seems to me that that is extremely persuasive and that in those circumstances the Duchy would owe a duty to carry out an appropriate assessment before a plan or project, such as this licence, was agreed to or implemented.

Mr Crow's second point is one which goes to the issue of whether it is appropriate to grant relief in this case, against the background, to which I have already referred, of the multiplicity of parties, about which I am, as anyone must be in this era of proportionality, particularly concerned. He submits that if there is an obligation on Natural England to carry out an appropriate assessment, a fortiori if Natural England has carried out that appropriate assessment, it is not appropriate in my discretion to grant permission in respect of what would otherwise be a cumulative or duplicative obligation on his client, who is, in any event, far less equipped, being, albeit concededly a public or competent authority, nevertheless in practice a private landlord, to carry out such an assessment; as compared with the agencies, who are much better equipped to do so.

He relies, by way of analogy, on the existence of Regulation 52(2) in the 1994 regulations, which provides:

It seems to me that would be a very powerful argument such as to knock out the claim by the Claimant if the areas, here, of responsibility of Natural England and the Duchy were coterminous. The fact is however that Natural England only has responsibility in respect of the SSSI, so if, as it says it has, it carries out an appropriate assessment, it will only be in respect of the SSSI, and not in respect of the entire area of the SAC, which, although it is not clear from the evidence how far the farm extends, the farm nevertheless includes in its area, in addition to the area of the SSSI. That means that Natural England would not, on the face of it, have any obligation to carry out an appropriate assessment in relation to that part of the farm which does not fall within the SSSI. That means that, per se, the knock-out blow which Mr Crow might otherwise bring forward on this basis is not there.

However, I do bear in mind that argument when I come to consider the next issue in the case for this reason, that there is nothing in the evidence which causes me to be of the view that the appropriate assessment of the oyster farm in the SSSI would reach any different conclusion to an appropriate assessment of the oyster farm in the balance of the area of the SAC. Because there is no evidence on the part of the Claimant, the only criticism, if there is one, relates to the question as to whether the triploid oysters are at risk of spawning. That is a risk which appears to me to be the same risk within the SSSI as it is within the whole of the SAC. If that has been appropriately assessed by Natural England in the SSSI, then it seems to me likely, absent any evidence, which there is not, to follow in the balance of the SAC. I bear that in mind when I come to deal with Mr Crow's third and most powerful argument, which is that of delay.

It is well known that the judicial review time limit of 3 months from the decision is not an absolute one. There are allowances for extensions of time in appropriate cases, but this, Mr Crow says, comes way outside any question of a slight extension. The claim by the Claimants in the statement of case does not shy away from a specific attack on the grant of the licence by the first Defendant in 2005, and the relief sought includes relief to quash that consent. There has been no further consent since December 2005, albeit there might be a choice of turning the licence into a lease. That has not occurred, nor, on the evidence, is it a settled intention on the part of the Duchy. Thus, insofar as there is to be any decision quashed, it is the decision to grant a licence without first having carried out an appropriate assessment in 2005, now 3½ years ago.

On the basis of that licence, the fourth interested party has moved in, spent the money to which I referred and carried out work. Mr Lasok points out persuasively that it has not yet taken up the licence of September 2008 by Natural England, but I have read Mr Wright’s statement, and it is quite plain that he is operating, and is intending to operate, an effective oyster farm. There is no doubt that he would suffer very substantial loss and prejudice if he were driven to give up that business because of the uncertainty of the outcome of proceedings, and there is no cross-undertaking in damages offered, or available, from the Claimant, who (a) is clearly unlikely to be good for the money if the matter were tested, on the evidence that he has put forward in support of his protective costs order, but (b) in any event is not a candidate for the giving of a cross-undertaking, because he seeks no injunction, so that the first Defendant and the first interested party would be left to carry on pending a full hearing at their own risk. In any event they have carried on expending substantial monies while the Claimant has taken no action.

On the other hand, there has been, I am entirely satisfied, substantial delay by the Claimant, who is a local resident. Mr Lasok says that he did not know that there had not been an appropriate assessment, assuming for this purpose that the Duchy was under an obligation to have carried one out in December 2005. However, he knew perfectly well, because he is a resident, that the oyster farm had begun, and substantial works were being carried out, and that there was a business in place and that it must have been with the licence of the Duchy as the landlord. The chronology that I have seen makes it plain that he clearly had knowledge and/or there was knowledge available to him at all times between 2005 and 2008, when he began to complain.

Mr Lasok says that it may be that he thought that there was a licence, and he refers to evidence in which it seems the fourth interested party was asserting that he had some kind of permission from some agency. But that would simply, if such were believed by the Claimant, have fortified the opportunity for him to have asked whether an appropriate assessment had been carried out before licence was granted, and he did not until sometime later in 2008.

I am satisfied that there has been unexplained delay in this case, that the fact that this claim relates to an arguable breach of Community law does not prevent that being taken into account (see R v London Borough of Hammersmith and Fulham [2000] Env LR 532 at 539 per Richards J) and that that delay is compounded by prejudice caused to the first Defendant and in particular the fourth interested party, and also balanced by the fact that there is the comfort to the Claimant that if his claim is not capable of being pursued against the first Defendant, he knows that there is a claim, which I shall now consider, against and/or an arguable obligation on the second Defendant, at least in relation to that part of the SAC which is coincidental with the SSI in relation to the only issue which has been raised as a problem. In those circumstances, I do not grant permission to proceed against the first Defendant.

I turn to the second Defendant, which I have found more difficult, and delay not arise. As I had earlier indicated, there is no evidence adduced by the Claimant as to the respects in which it must be inferred or concluded that there cannot have been an appropriate assessment, as he asserts, in the face of the assertion by the second Defendant that there has been. I do not in any way suggest that Mr Lasok has latched on to the concession or explanation in the skeleton argument by Mr Machin, but it has certainly concentrated all our minds, and the only issue that has been aired before us is the question of the triploid oysters. I leave aside, as I have indicated, the short period of diploid oysters, which was clearly a matter of considerable discussion and consideration, and has not been a matter of specific criticism by Mr Lasok. I have looked, with the help of both Mr Lasok and Mr Machin, at the documentation that there is in relation to the triploid stock.

The first such document is dated 19th December 2006 and is an e-mail by Mr Roger Covey, a senior marine specialist in the South West Regional Advocacy and Partnership Team of Natural England. He said:

There was then a note of a meeting with the fourth interested party, by Natural England, represented by both Mr Covey and a Mr Kevan Cook, which includes the statement that by Year 3 only triploid stock would be in the estuary, and which records that Natural England had suggested that the farm should lay triploid Pacific oysters such that they were infertile and would not exacerbate the naturalised settlement which had already occurred.

That position remained the case through negotiations and discussions in 2008. Mr Covey sent a further e-mail on 21st April 2008 to a large number of recipients, which included the following statement:

There is no evidence from Mr Covey as to how he came to formulate his view, there stated, that as compared with his initial statement on 19th December 2006 that using triploid spat would “significantly reduce” the risk of successful spawning, his later statements positively stated that triploid stock was infertile. But equally, as I have indicated, there was no evidence from the Claimant, upon whom the onus of proof lies, to show that the use of triploid spawn does contain a risk which cannotbe appropriately assessed.

If matters lay there, I would be of no doubt at all that the Claimant had failed to establish an arguable case that there was no appropriate assessment carried out, but into the mix there is introduced a draft assessment, dated December 2006, revised and updated in May 2007 and July 2008, carried out by the fourth interested party itself. So as at July 2008, which was the very time when the assessment was being, and/or was about to be, carried out by Natural England, the following statement by the fourth interested party itself was before Mr Covey and his colleagues:

That plainly leaves open the possibility that there is a risk from the use of triploid stock, albeit that that risk can be minimised. There is no evidence that Mr Covey took that into account in carrying out his appropriate assessment, if it was he, or his colleagues, and that they were able to satisfy themselves that such risk was sufficiently minimal to mean that there was no risk of damage to the site by virtue of the existence of the triploid oysters, or if there was a continuing risk, how it would be managed, if it needed to be.

I feel considerable doubt about whether this permission should be granted, not least because the evidence does not come from the Claimant, but, although I shall take into account this closeness of whether to grant permission or not when I come to consider the application for a protective costs order, I am just persuaded that there is a ground for the Claimant to take forward as against the first Defendant, although plainly he must appreciate that he will have risks of failing and that, although I am the permission judge, on the face of the evidence at the moment I cannot by any means guarantee his success.

MR LASOK: My Lord, a point of clarification, because I assume that your Lordship has now delivered the judgment on permission.

MR JUSTICE BURTON: Yes.

MR LASOK: I understood your Lordship's judgment in relation to the refusal of permission, so far as the first form of relief sought against the Duchy is concerned.

MR JUSTICE BURTON: Yes.

MR LASOK: The second form of relief is a declaration that the Duchy is a competent authority. That does not overlap with the concern about spawning of oysters.

MR JUSTICE BURTON: In my judgement, it is entirely hypothetical, because the events upon which you have based -- namely the event as to when it is suggested that it should have carried out an appropriate assessment is out of time, as I have concluded, and there is at the moment no other event in which the question as to whether it is a competent authority falls to be decided.

MR LASOK: So the problem with that is that the events in question are operations; it is not simply agreed the agreement is the plan or the project. I wondered whether your Lordship wanted to consider that aspect.

MR JUSTICE BURTON: I think I have had all the consideration that I need. If you want to say anything more, by all means do. I have concluded that there is no sufficiently arguable case, for the reasons I have given, because of delay in relation to the grant of the licence. Are you suggesting that there is, each day, an obligation to make an appropriate assessment as each day goes past, other than, of course, in your way of getting over the delay in relation to the original assessment?

MR LASOK: No, but each operation has to be considered. We can take examples that we know of, because we have some detail about them, that is to say the installation of the trestles, because that is an example. That, I can fully understand, is covered by your Lordship's judgment in the form in which it currently takes, but the problem that we are confronted with is that the oyster farm is actually carrying on other operations, dredging is an example. Now, that is not a concern of Natural England, because it takes place outside the SSSI, but it takes place within the SAC. This is one of the things that is referred to in paragraph 8 of our skeleton argument, right at the very end, because we were making the point that the collision with the Duchy raises, or deals with, wider concerns --

MR JUSTICE BURTON: Paragraph 8 of your skeleton argument?

MR LASOK: Yes, it is the penultimate sentence.

MR JUSTICE BURTON: I will read it:

That did not form anything like the basis of your claim. This is one sentence in paragraph 8. It seems to me that if you want to bring injunctive relief to stop dredging and trawling taking place, whether with or without an appropriate assessment, then you would (inaudible).

MR LASOK: We have not sought injunctive relief.

MR JUSTICE BURTON: You have?

MR LASOK: Where?

MR JUSTICE BURTON: No, I said you have not sought injunctive relief.

MR LASOK: I do not understand your Lordship on this point.

MR JUSTICE BURTON: By all means develop your proposition. Why do you not understand it?

MR LASOK: We have not sought injunctive relief.

MR JUSTICE BURTON: Exactly. There are two points that underlie "I do not understand your Lordship on this point". Let us deal with them both. The first is you have not sought injunctive relief. I am saying that if you want to seek injunctive relief in relation to the carrying out of practices such as dredging and trawling, you can seek to do so, backing it up with your case that it is the competent authority. I saw you, in relation, in the course of my judgment -- I was not quite clear why you were puzzled. I was saying in the course of my judgment that the very fact that you had not sought injunctive relief meant that there was no cross-undertaking in damages on offer. I did not begin to think that you were seeking injunctive relief. You have not done.

MR LASOK: Quite so, and what we are seeking is final relief.

MR JUSTICE BURTON: Definitely.

MR LASOK: Final relief does not carry with it an obligation to produce a cross-undertaking, because it is final.

MR JUSTICE BURTON: No, but the permission application, if it were accompanied by an injunction, would carry with it an opportunity of cross-undertaking in damages, in case you fail at trial. You are not seeking an injunction, and therefore are not in a position to offer a cross-undertaking in damages.

MR LASOK: That is because we are not seeking injunctive relief.

MR JUSTICE BURTON: Absolutely so. In those circumstances there is nothing to palliate the prejudice or loss suffered by the Defendant if the Defendant is inhibited by the existence of permission. In any event, I have not granted permission; I have refused it.

MR LASOK: Yes, I know, but I am getting a little confused about this, because in our respectful submission if you grant permission, that is not the equivalent of a grant of injunction.

MR JUSTICE BURTON: I do not think you need to argue about this, Mr Lasok, because I have not granted permission, I have refused it, but if you do not follow -- and I think Mr Crow followed my argument, because he positively supported it in the course of his submissions. If you are seeking some kind of provisional order, pending trial, which does not include an injunction, but which is going to inhibit a Defendant or another party, and you are not offering a cross-undertaking in damages, the prejudice caused to the other party is greater than if you do seek an interim injunction and are therefore able to offer the comfort to that party of a cross-undertaking in damages. Consequently, the absence of a claim for an injunction, and the absence of a cross-undertaking, merely needs to be recited as not palliating the detriment caused, in this case, to the fourth interested party. That is all. If you had been seeking an injunction, you might not have got it. As it turns out, you would not have got it, because I would have refused it, but such an injunction would carry with it some comfort, which palliates the prejudice caused to the party affected by the situation. As Mr Crow submitted in the course of his submissions to me, the fourth interested party would not know whether to stop and cut his losses or carry on and risk exacerbating his losses. If you have a cross-undertaking in damages, at least you know that if you go on you have the possibility of recovering against the Claimant.

I have had to illuminate my thinking to you, but it is all past history. I have delivered the judgment, you have risen to raise, quite properly, your suggestion that, quite apart from the case which I have primarily been considering, by reference to a claim for a declaration, and this sentence at the end of paragraph 8, you can submit that I ought nevertheless to grant permission in relation to a declaration so that you can at some stage complain of activities such as dredging and trawling, although you have not yet done so.

MR LASOK: No, that is not our submission. Our submission was that due to the fact that Duchy did not consider that it was under the obligation set out in, for the sake of simplicity, Articles 6(2) and 6(3) of the Directive, the Duchy was not performing its obligations in relation to those provisions. That submission was not limited to the problem posed by the installation of the trestles on the SSSI.

MR JUSTICE BURTON: I have refused permission in relation to your main claim, which was to quash the grant of the licence. You mentioned in the course of your submissions that you were also making a claim for a declaration. You are absolutely right, I did not deal with that in the course my judgment. I have now done so. However, you did not refer to the three lines at the end of paragraph 8 in the context of the declaration, because I dealt with the declaration in the context of your seeking to quash the decision. You are now making a separate point, which is that at any day of the week there is a continuing and separate breach of obligation by virtue of the application of the Directive, if it applies, with regard to permitting, dredging and trawling.

I am going to ask Mr Crow whether he wants to say anything about this. Yes?

MR CROW: Well, admiring my learned friend's tenacity — I have never experienced a judge being cross-examined on a judgment he has just delivered before — my Lord, the point is simply this, that the only thing that is being challenged is the act of consent given in 2005. There is no other consent that is sought to be impugned, and at the moment there is, therefore, nothing upon which a declaration could bite. Your Lordship's judgment is entirely internally coherent in refusing both the reliefs sought. If my learned friend does not like it, or he does not understand it, he can attempt to renew his application in the Court of Appeal against my client.

MR JUSTICE BURTON: The way I understood the declaration being put was exactly by reference to the consent in 2005, except that it was — and Mr Lasok specifically addressed this — the hypothetical situation of "What if there were now an application for an agreement for lease?" I have concluded that that is a hypothetical situation which does not arise. What you did not raise Mr Lasok — it was not addressed to me in the course of your argument — was any reference to other events, such asdredging and trawling. I have not looked at that and I do not conclude that it is appropriate for me to do so.

MR LASOK: I am much obliged that your Lordship has taken the time to deal with that.

MR JUSTICE BURTON: Anything else?

MR CROW: The position is that where permission has been refused after an oral hearing, we are entitled to ask for our costs up to and including the costs of the acknowledgment of service, but not of the hearing. I would ask for that order. We have a schedule of costs here. It has not been filed — I apologise for that — and it has not been shown to my learned friend.

MR JUSTICE BURTON: I am normally prepared to make an interim order of a sum that seems less than you are going to recover, but not more than is -- you have not seen it?

MR CROW: No, I am sorry. (Handed).

MR JUSTICE BURTON: Do you have a schedule?

MR LASOK: Schedule of our costs?

MR JUSTICE BURTON: Yes.

MR LASOK: No.

MR JUSTICE BURTON: This is costs of work done in relation to the acknowledgment of service and summary grounds of defence.

MR CROW: Yes, not the hearing. You will see the bottom line figure, excluding VAT, on page 3, is £14,000. You will see that the charging rates are entirely reasonable. Indeed, the hours spent, if you can just cast your eye down page 2, nothing remotely out of the ordinary there. You will see that counsels' fees, on page 3, also come out. If you work backwards, you can see the charging rate there.

MR JUSTICE BURTON: Mr Lasok, if I ordered an interim payment of £10,000, what would you say?

MR LASOK: I am told, that, as your Lordship appreciates, Mr Bruton's total annual income is £47,500 before tax.

MR JUSTICE BURTON: So? What is the context?

MR LASOK: This is an environmental case. The context is, and this goes back to the Argus (?) Convention.

MR JUSTICE BURTON: He spread his net very much wider than he needed to have done by enjoining the additional party.

MR LASOK: Well, your Lordship has come to that conclusion. In our submission, when one looks at the past history of this, what you are actually seeing is a situation in which Natural England was concerned about the fact that there was insufficient, or no, control over the SAC, because the Duchy of Cornwall was not doing anything. There was, as your Lordship will have noted from the correspondence, a certain degree of tension, because Natural England took the view that the Duchy of Cornwall should have been doing something. Now, it was in the light of that situation that Mr Bruton, who was concerned about the position, initiated the proceedings against both Natural --

MR JUSTICE BURTON: You are entirely open to develop the facts to me, but when I said, "What is the context?", what I wanted to know was what your submission was. Is your submission that I should take into account that fact in the amount of interim costs that I order, which I can entirely understand is a fair point and I would be prepared to do so, or does it go to the grant of cost at all?

MR LASOK: It goes to the grant of costs, because the underlying principle, in our submission, is that costs should not be an impediment to the bringing of proceedings of this nature, because proceedings of this nature are brought typically by --

MR JUSTICE BURTON: I know that you have your protective costs order authorities, which I have looked at, and which we will briefly discuss in a moment, but on ordinary authorities in the Administrative Court, for costs at the end of the day, there is no such principle, is there? This is an environmental case and (inaudible).

MR LASOK: Your Lordship can apply the same approach at this stage.

MR JUSTICE BURTON: I could do, except that this Defendant is gone for good. As it happens, I have allowed you to go on against the second Defendant, but the first Defendant is out of it. So this is the end of that Administrative Court action. It happens, as it turns out, fortuitously, because of the order for a preliminary hearing in court, to be one where the costs are limited to the acknowledgment of service, considerably less than the real costs of the Defendant. Very considerably, as you will know.

MR LASOK: As your Lordship will appreciate, the general approach, illustrated most recently in the Buglife case dealing with protective costs orders is favourable to limitation of the exposure of the unsuccessful claimant in cases of this nature. Our submission is that that approach is appropriate to apply at this juncture in relation to the first Defendant. The first Defendant is an organisation of considerable means. The Claimant is not; he is a private individual with extremely limited means. He has brought these proceedings, which in our submission raise a matter of general public importance, not in his private interests but in order to ensure observance of the law. Your Lordship has declined to grant permission in relation to the challenge to the first Defendant's situation, because of the question of delay. But, your Lordship's refusal of permission does not go, or does not undermine, the merits of the basis on which the challenge was initially launched. The challenge was launched because of a concern that the Duchy was a competent authority that was not performing its statutory obligations. That concern was echoed by Natural England itself.

Obviously, as a result of the refusal of permission, that particular matter is not going to be resolved in these proceedings, but in our submission it was a matter properly to have brought before the court. Somebody, at some stage, is going to do it, and, ultimately, it may well prove to be the case that the Claimant was right. It was simply that in relation to the first Defendant in these proceedings that permission was refused on the basis of what, I would submit, is a technicality, namely the problem posed by delay. But there can be no getting around the fact that the Claimant has identified a serious problem that is ongoing.

MR JUSTICE BURTON: It may, in the light of my conclusions, be one which leads nowhere, by the fact that your case as I assessed it, even against the second Defendant, depended on a very narrow question.

MR LASOK: Yes, but that does not get around the problem that, so far as the activities outside the SSSI are concerned, there are other issues. At the moment we have a rather uncomfortable situation. I do not wish to delay the court on this for too long, but I think it will take me a couple of seconds to mention it. If you removed the technicality of the time problem, you actually have what is strongly arguably a continuing breach of the law by the Duchy. We cannot get away from that. The only way that you can get away from that is saying --

MR JUSTICE BURTON: I am not sold on the idea that every time the fishery sends out a dredger then that is a plan or a project that has not been argued before, because you did not develop it otherwise than by one sentence at the end of your skeleton argument, which was not developed orally. In order to get that off its ground you would have to show that every time a dredger was sent out this was a plan or a project which required, at any rate on one occasion, a prior appropriate assessment.

MR LASOK: I fully accept your Lordship's position on that. The point that I am seeking to make at the moment is that this particular aspect of the case is one of those in which it is a public interest case. There is no private interest. The Duchy of Cornwall, prima facie, is acting unlawfully. They have got out of it because of the legal technicality.

MR JUSTICE BURTON: You say "legal technicality", but there are the two authorities to which I was referred of Richards J and the Court of Appeal in relation to the passage of time as approved by the Court of Appeal.

MR LASOK: There is nothing wrong with a legal technicality, but in our submission one must bear in mind that underlying legal technicalities, there is a substantive issue. In our respectful submission we are faced with a situation in which the underlying substantive issue is a serious issue, and it may well ultimately be an issue which is --

MR JUSTICE BURTON: But, in this case, what you call "technicality" is allied with the fact that I have concluded that there is a case against one Defendant, just, but not against the other. It is a real problem in environmental cases that claimants who feel, you say, that they will be protected by protective cost orders, protected at the end of the day if they lose, are pursuing all kinds of numbers of different Defendants — in this case more than they needed to — so there is a balancing act to be done. Of course Claimants must be encouraged to bring forward proper cases, but not necessarily by joining large numbers of Defendants. In this case they joined one too many.

MR LASOK: Our submission is that come what may, the protective costs order issue is relevant to this point. The exposure that the Claimant was seeking under the protective costs order was one that was limited to £2,000. This is a situation in which, in our respectful submission, the award that could be made against the Claimant in relation to the first Defendant ought not to exceed that figure.

MR JUSTICE BURTON: Now, Mr Crow, there are two issues here. The first is whether I should order your costs to be assessed, as opposed to summarily assessing them now. The second is whether, if it is the former, I make an interim payment, and if so how much, or, if it is the latter, I assess it at less than, as it inevitably will be, the amount which you are claiming, taking into account the submissions which have been put before me by Mr Lasok. What do you say?

MR CROW: I will briefly take instructions as to which of those options we would prefer. May I make two very short observations? So far as the Claimant's resources are concerned, he has not given us a complete picture. He has put in a one-sentence statement in his second witness statement, which simply identifies what real property he owns and what his annual income is. He has not identified what his savings and investments are. He has not actually identified the capital value of the property in respect of which he gets £7,250 a year rental income. So we really do not have a complete picture of the Claimant's financial position.

The second point I wanted to make is this, so far as the merits are concerned, my learned friend repeatedly said that we had got off on the technicality and that, prima facie, we are acting unlawfully. With the greatest of respect, that begs all the issues that have not been argued today. It begs the very question as to whether we are amenable to judicial review, and whether we are a competent authority, none of which, prima facie, have even been argued, let alone found against us. So it really would not be appropriate for your Lordship to make a decision on costs on the basis that we are, prima facie, acting unlawfully.

Can I briefly take instructions on whether we would prefer an interim award with detailed assessment, or summary assessment now? (Pause). My Lord, inevitably a huge amount of costs have been incurred for the hearing, which we are not going to get anyway. We would much rather not have to come back and have a detailed assessment. We would simply prefer to walk away with a clean order now, with a summary assessment, rather than having an interim order and then incurring yet more costs in relation to a detailed assessment. So if your Lordship were minded to make a summary assessment now, that would be our preference.

MR JUSTICE BURTON: And as to the impact on costs, or an assessment of costs, of the point made by the Claimant that, whatever his means, he has come forward for the good of the community?

MR CROW: My Lord, that entirely begs the question as to whether or not the Duchy actually has any functions in relation to the environment. It is entirely true to say that the court does take a somewhat compassionate view in relation to claims which can properly be described as being environmental, but the whole issue against the Duchy is whether it has got any function in relation to the environment at all. So to ask for the court's indulgence in relation to an issue which has not even been argued, in our submission is simply not an appropriate exercise of the discretion.

MR JUSTICE BURTON: Anything else you want to say?

MR LASOK: No, thank you.

MR JUSTICE BURTON: I am going to take into account of what Mr Lasok has said for this Claimant. I shall summarily assess the costs at £7,500.

Now, albeit that it is somewhat late, I think we must deal while we are here with the protective costs order. Tell me, Mr Lasok — perhaps I should ask Mr Machin — how far does the issue of merits impinge upon the protective costs order, because I have already indicated, in the course of my judgment, that I was only just persuaded to allow you to go through, so it seems to me, free of authority, that it must impinge substantially on the issue as to whether it is appropriate to give a free run to a Claimant who may have a case which will fail.

MR LASOK: In our submission, the court has to take all of the circumstances into account. The main guidance is to be found in, I think, most recently, Buglife, which --

MR JUSTICE BURTON: I have seen the authorities, but I will have a look, by all means, if there is anything you want me to look at.

MR LASOK: It is a question of whether it is fair and just to make the order, in the light of all the considerations. If you go, for example, in Buglife, to page 5, paragraph 13, there is a quotation there from an earlier case. Well, it is actually a quotation from Corner House. If you look just above the second hole punch, there is a paragraph which begins "1. A protective costs order..."

MR JUSTICE BURTON: Yes, I have read it and I have already seen it from your skeleton argument. Presumably the relevant part is "it is fair and just to make the order".

MR LASOK: Yes. The other fact I think I need to draw the court's attention to is that in this particular case Mr Bruton's legal representation is working on a conditional fee arrangement, under which if Mr Bruton is unsuccessful they will not get paid; if he is successful, there is no success fee. So they will simply get the ordinary rate.

MR JUSTICE BURTON: Right.

MR LASOK: This is not one of those cases in which the CFA has a success element in it which is the reward for the risk taken.

MR JUSTICE BURTON: When you say"the team", are we referring to solicitors only or solicitors and counsel?

MR LASOK: We are referring to solicitors and counsel. Leading counsel was involved solely because the Duchy decided to bring along Mr Crow and for no other reason. Otherwise, Miss Haynes would have dealt with the case. I do not think I need to repeat the earlier submissions that I have made, that in our submission it is a public interest case, there is no private interest involved in it at all. In all the circumstances, applying the guidance given by the court, if one looks, for example, starting at (1), you have (i) which gives the conditions: "the issues raised are of general public importance". We submit they are.

MR JUSTICE BURTON: What Mr Machin says is that these issues are not of general public importance. He says that he accepts that he has to do an adequate assessment. Your case was that he hadnot done one. It is now, as clarified, limited to the fact that he did not sufficiently consider the impact of triploid oysters spawning. It does not sound as though it is of general public importance.

MR LASOK: I think that your Lordship needs to bear in mind that what we said was that an appropriate assessment had not been carried out.

MR JUSTICE BURTON: Yes, but you have not challenged the bona fides of the case that they did do an assessment. I thought that you accepted -- certainly you have no evidence to the contrary when you have to go racing around and around getting it. At the moment it may be that I should not decide this now but I should decide it, or another judge should decide it, when I see what the evidence is going to be like, but at the moment, without any evidence, not only do you have a very weak case, but it is one which solely depends upon surmounting the issue as to whether they have adequately dealt with spawning.

MR LASOK: The explanation given by Natural England, was, as I described earlier, a confession and avoidance. They admitted that there was no assessment on the particular topic thatwe have (inaudible).

MR JUSTICE BURTON: I am perfectly conscious of what they have said and I have analysed it at some length and I have just found in your favour, but all I am putting to you is that you do not have any evidence, as I said in the course my judgment. I am not going to repeat it. If you want to run around and get some evidence that is fine, but the highest it is going to be would be whether, in whatever respect … even assuming in your favour that you managed to get something else off its ground in addition to the spawning by triploid oysters. It does not have the feel of a general public importance case.

MR LASOK: You see, our submission was that the skeleton argument from Natural England provided the reason why there had not been an assessment of the sort that we were contending for. What they have done is they have given the reason why. It is not a change of case on our part.

MR JUSTICE BURTON: I am not suggesting it is a change, and I did not; I suggested it was a honing of your case.

MR LASOK: Yes, it is a honing of the case, because what we have been able to do is to say, this is the explanation that they have given of why they did not do that.

MR JUSTICE BURTON: Yes, but you still have not got any evidence at all to suggest it was inadequate in any other respect than failing to deal sufficiently, if they did, with the risk of spawning from triploid oysters. There is nothing else put forward, not even speculated. So unless you are going to go away and get some evidence, that is all that it is about. I quite follow that that is your route through to saying it is inadequate, but the only case is, did you consider triploid oysters or not? And did you consider it sufficiently? All I am putting to you is it does not feel like a matter of general public importance; it feels like a breach of statutory duty and a failure and then some kind of negligence.

MR LASOK: Our submission is that it is a matter of general public importance, because conserving these habitats is a matter of general public importance. This is not done for the enjoyment of a few happy individuals; it is done, actually, for the greater benefit of the public and of the environment. This particular location is one instance, but all these cases will arise in a particular location and the focus will be on the particular problem that has arisen. Now, that does not mean that the problem ceases to be a matter of general public importance, because the issue itself is an issue relating to the protection of the environment, which is itself a matter of general public importance.

The other problem that is floating around here is the suggestion on the part of Natural England that it was sufficient to rely upon whatever work was done in 2006. Now, that actually relates to a methodology concerning the carrying out of appropriate assessments because, as your Lordship will appreciate, the inevitable contention is going to be that the nature of appropriate assessments is such that they have to be carried out at the relevant time by reference to the then available scientific information, and you cannot avoid that obligation by referring to the fact that X number of years ago you did something of a similar nature.

MR JUSTICE BURTON: We have had this argument. I will not say any more about it.

MR LASOK: That is our submission, that it is a matter of general public importance.

Item 2: the public interest requires that those issues should be resolved.

MR JUSTICE BURTON: Yes.

MR LASOK: Again, the problem is that this is environmental legislation that is there to protect the public interest, not the private interest of individuals.

MR JUSTICE BURTON: Yes, but the thing is you have four agencies. Another point which Mr Machin makes is that he is not alone. There are four agencies — DEFRA, Marine and Fisheries, and Environment Agency — all whom, it appears, may have fallen down on the job, if you are right, in one respect. Public interest requires that they should be on the job. So the only way in which it is of public interest is if they are not doing their job properly. It is not the environment so much, because there are four agencies looking after the environment; it is them not doing their job properly.

MR LASOK: That is the problem, but it is not doing their job properly in relation to a matter that is in the public interest and is of public importance.

MR JUSTICE BURTON: Yes.

MR LASOK: Then if you go to "the applicant has no private interest in the outcome of the case", which he does not:

MR JUSTICE BURTON: No one else is backing them?

MR LASOK: No one else is backing them.

MR JUSTICE BURTON: He has not made any effort to see if there are other people?

MR LASOK: They would probably have to do that now. He may do that now, but that is not going to guarantee that people are going to --

MR JUSTICE BURTON: No, but the fact is that is a possibility. If it is an important environmental issue for the locality, then other people may well …

MR LASOK: And they may not.

MR JUSTICE BURTON: Anything else?

MR LASOK: No, those are my submissions.

MR JUSTICE BURTON: Now, Mr Machin, can I ask you — just help with costs — they have said that they are not going to have a leader, so I assume that you are not going to have a leader.

MR MACHIN: I do not anticipate so, no.

MR JUSTICE BURTON: If you were to be successful at trial, would you be able to pick up, at that stage, any of the acknowledgement of service costs or the costs of today? You would be able to pick up the acknowledgment of service costs.

MR MACHIN: If we were successful at trial.

MR JUSTICE BURTON: Can you pick up today's costs?

MR MACHIN: I am certainly assuming that that will be the case.

MR JUSTICE BURTON: I do not know if that is the case.

MR MACHIN: My Lord, I am not aware of any reason why we cannot pick up everything.

MR JUSTICE BURTON: You say you can pick up everything if you go --

MR MACHIN: -- if I get to trial and win. If the Claimant chooses to pursue the matter.

MR JUSTICE BURTON: How much are your costs so far?

MR MACHIN: About £20,000.

MR JUSTICE BURTON: Yes, it does not surprise me. And the costs if you go to trial? Another £10,000?

MR MACHIN: At least, more because we would have to prepare proper evidence. We would have to prepare detailed evidence.

MR JUSTICE BURTON: Yes, you would. You would need to produce evidence from Mr Covey to say what this assessment included.

MR MACHIN: Precisely.

MR JUSTICE BURTON: Assuming it was Mr Covey.

MR MACHIN: My Lord, yes. I anticipate we would put in evidence from two witnesses who would give a detailed account from Natural England's point of view as to exactly what they did and why. The matter would then be filled out. I would suggest another £20,000 would not be an excessive figure to bear in mind as a round figure.

MR JUSTICE BURTON: What I have power to do is to cap your costs at a figure, not necessarily £2,000. Clearly it would not even be sensible for me to do that, given that Mr Crow has already walked away with £7,500 and you would have gone to trial and succeeded, but I have the power to take into account some of the arguments that were put forward, certainly if this was a (inaudible) both of the days, then you would not be able to (inaudible).

MR MACHIN: If that were the case, clearly different considerations would apply.

MR JUSTICE BURTON: Yes.

MR MACHIN: The way I would put it is this, that this is not truly a public interest issue that now remains on the case that is going forward, that there is no issue between us and the Claimant about the principles of law that applied. All those arguments were between others.

MR JUSTICE BURTON: No, it is evidential only, but what Mr Lasok says is that the impact, if you failed to carry out an assessment, and if you now do another one and if you find that there was a non-manageable risk of spawning -- is that the habitat of Cornwall might have been damaged and might thereby be saved.

MR MACHIN: My Lord, there is a high degree of speculation in that.

MR JUSTICE BURTON: Certainly, given the view I have taken about the strength of the evidence.

MR MACHIN: Precisely.

MR JUSTICE BURTON: It may change.

MR MACHIN: It is a question of public interest. The issue here is a narrow one. It has been narrowed down so it is not merely a question of, did we do our admitted duty correctly; it is did we fail on one particular aspect of it. It is a very narrow claim, and it is, as you have indicated, one which has just scraped over the hurdle. In those circumstances, if you are looking at what is a fair and proper thing to do in the circumstances, I say bluntly that issue is not a public interest issue; it is a question whether, in one particular instance, Natural England have or have not failed to take every inch of every item into account.

MR JUSTICE BURTON: Mr Lasok, I think it is appropriate to give an undertaking only to appear by junior counsel.

MR LASOK: I did not do that.

MR JUSTICE BURTON: No, but I thought that was what was considered in the reciprocal — I forget which case it was — yes, "the beneficiary of the PCA must not expect a capping order that will accompany the PCA to commit anything other than modest representation and must arrange its own legal representation accordingly".

MR LASOK: If your Lordship wishes to impose that as a condition for the granting of a protective costs order then I have no problem with that. I may take instructions on that? (Pause). Yes, that is fine.

MR JUSTICE BURTON: I was thinking. Did you have anything to say?

MR MACHIN: I was only going to say that in those circumstances, bearing in mind the weakness of the claim, the high risk of failure and the narrowness of the issue, that this is a case where if the Claimant chooses to go forward from here to court he should do so at his own risk as to costs.

MR JUSTICE BURTON: Your costs you estimate could be as much as £40,000?

MR MACHIN: Altogether, yes.

MR JUSTICE BURTON: Anything else, Mr Lasok?

MR LASOK: No.

MR JUSTICE BURTON: I am prepared to make a limited protective costs order in this case, but it is going to be very limited for the reason that I have indicated, that I am unconfident about the merits of the case and therefore I take that into account as to whether it should be fair and just to make any order. I recognise that the Claimant, now that the case is slimmed down, at any rate, with only one Defendant, is bringing forward an environmental point which he feels strongly about, but I do not believe this is an appropriate case, not least because of the merits aspect, in which he should be anywhere near free to go forward without risk. What I can do is protect him against the risk of an order for costs against him of £40,000.

I propose to make a protected costs order capping the costs which may be payable by him to the second Defendants in the sum of £15,000. That is on condition that both the second Defendants and the Claimant will proceed withjunior counsel only.

Thank you all very much.