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Salmon fisherman Nigel Mott due quota compensation

A fisherman who had to limit the number of salmon he was allowed to catch must be compensated, a court has ruled.

Nigel Mott, of Stroat, Chepstow, had fished near Lydney in Gloucestershire with a traditional putcher rank – basket-like traps – since the 1970s.

In 2012 the Environment Agency told him he could only catch 30 wild salmon per season in the estuary.

The Supreme Court ruled the the catch quota was “irrational” and should not have imposed without compensation.

‘Wholly uneconomic’

Mr Mott challenged his licence conditions for 2012, 2013 and 2014, limiting his catches respectively to 30, 23, and 24 salmon each year.

He said before the limit was introduced his average catch using the rank was some 600 salmon per year, at a value of about £100 each, giving him a gross annual income in the order of £60,000.

Image: Steve Bloom

THE JUDGEMENT:

Hilary Term [2018 ] UKSC
10 On appeal from: [201
6 ] EWCA Civ 564 JUDGMENT R (on the application of Mott)
( Respondent)

v Environment Agency

( Appellant ) before Lady Hale, President Lord Kerr Lord Carnwath Lady Black Lord Briggs

JUDGMENT GIVEN ON
14 February 2018 Heard on 13 December 2017

Appellant Respondent James Maurici QC Stephen Hockman QC Gwion Lewis Mark Beard
(Instructed by Environment Agency Legal Services )
(Instructed by Harrison Clark Rickerbys Inc Simon Jackson )

LORD CARNWATH:
( with whom Lady Hale, Lord Kerr, Lady Black and Lord Briggs agree) Background
1. This appeal concerns the legality under the European Convention on Human Rights of licensing conditions imposed by the Environment Agency (“the Agency”) restricting certain forms of salmon – fishing in the Severn Estuary.

Mr Mott’s interest
2. The respondent, Mr Mot t, has a leasehold interest in a so – called “putcher rank” fishery at Lydney on the north bank of the Severn Estuary. A putcher rank is an old fishing technique, involving the use of conical baskets or “putchers” to trap adult salmon as they attempt to retu rn from the open sea to their river of origin to spawn. Mr Mott has operated the putcher rank under successive leases since 1975. Since 1979, according to his evidence, it has been his full – time occupation. He claims that, before the limits introduced by t he Agency in 2011, his average catch using the rank was some 600 salmon per year, at a value of about £100 each, giving him a gross annual income in the order of £60,000.
3. The right to operate the rank is derived from a “Certificate of Privilege” dated
14 M ay 1866, issued by the Special Commissioners for English Fisheries, and owned by the Lydney Park Estate. The current 20 – year lease was granted jointly to Mr Mott and a Mr David Merrett, and will expire on 31 March 2018. It gives them the right to fish two stop nets and 650 putchers, in return for payment of an annual rent in two parts: a “fish rent” equivalent to 65 pounds in weight of salmon, and a “monetary rent” of (since the last review date) £276. The tenants are required to operate the putcher rank du ring each fishing season unless circumstances make it impossible. Further they may not assign, let or part with the fishery during the term of the lease, save upon death or disability, when they may with the written consent of the landlord assign to another family member.
4. To operate the putcher rank Mr Mott has required an annual licence from the Environment Agency (“the Agency”), under section 25 of the Salmon and Freshwater Fisheries Act 1975 (“the 1975 Act”). The salmon season runs from 1 June to 15 Augu st. Licences are usually issued by the Agency in late April or early May, shortly before the season opens. Until recently a licence for use of “an historic installation” such as the putcher rank (unlike other methods of fishing) could not be  made subject t o conditions limiting the number of fish taken (“catch limitations”). However, with effect from 1 January 2011, the 1975 Act was amended to enable the Agency to impose such conditions where considered “necessary … for the protection of any fishery” (paragr aph 14A of Schedule 2 to the 1975 Act, inserted by Marine and Coastal Access Act 2009 section 217(7)). Measures to protect salmon stock
5. It has been g overnment policy , as implemented by the Agency and its predecessors, supported by government, that in the interests of effective m anagement “mixed stock fisheries” should be gradually phased out, and exploitation limited, as far as possible, to places where the stock of salmon is from a single river. The Agency considers that all the fisheries in the Severn Estuary exploit a mixed sa lmon stock, with fish destined to return to the rivers Severn, Wye, Usk, Rhymney, Taff and Ely and other rivers.
6. The rivers Wye and Usk are designated as Special Areas of Conservation
(“SAC”) under the European “Habitats Directive” (Council Directive 92/44 /EEC), transposed into domestic law by the Conservation of Habit ats and Species Regulati ons 2017
(“the Habitats Regulations”). One of the main reasons for the designation of these rivers is the need to conserve their salmon stocks. The Severn Estuary itsel f is designated as a SAC, a Special Protection Area (under the Council Directive on the Conservation of Wild Birds (Council Directive 79/409/EEC)), and a Ramsar site. Together, these areas constitute the Severn Estuary European Marine Site, for which salmo n is a qualifying feature.
7. For some years the status of salmon stock in the Wye and Usk has been categorised by the responsible authorities as “unfavourable” or “at risk”, because of failure to achieve stock conservation targets or the objectives set under the Habitats Directive. Dealings between the Agency and the Tenants
8. In late 2003, the Agency attempted to purchase the Certificate of Privilege to operate the putcher rank. It agreed terms with the Estate, subject to contract, and (as the Estate required) subject to agreement with the tenants for termination of the lease. Negotiations between the Agency and the tenants took place in 2004. By an agreement in 2004, the Agency paid the tenants £30,000 compensation not to operate the putcher rank fishery durin g the 2004 fishing season. The agreement also provided a further payment of £10,000, if agreement were reached before 1 June
2005 for permanent cessation. In the event negotiations for permanent cessation

25. It is to be not ed (in particular from para
96) that the judge did not feel able, or find it necessary, to categorise the action under A1P1 as either deprivation
(second rule) or control (first rule). He considered it under the first general rule, as identified in Back v Finland , while regarding it as closer to deprivation for the purpose of the proportionality balance.
26. In the Court of Appeal Beatson LJ agreed with this assessment. It is unnecessary to set out his reasoning, which in substance followed that of the judge
(paras 87
–
89). It was sufficient in any event that the court f ound no error in the judge’s reasoning, without needing to conduct their own independent assessment of proportionality (see In r e B (A Child) ( C are Proceedings : Threshold Criteria
) [2013] 1 WLR 1911
). The appeal
27. The issues identified by the parties as aris ing in the appeal are in short (i) whether the conditions imposed by the Agency amounted to control or de facto expropriation under A1P1? (ii) if the former, did the “fair balance” require compensation to be paid ?
(iii) if the latter, were there any excepti onal circumstances justifying absence of compensation?
28. Mr Maurici QC for the Agency submitted that the restrictions clearly constituted a control, rather than expropriation, in spite of the adverse effects on Mr Mott. He referred for example to M e llacher v Austria
(1990) 12 EHRR 391 concerning a new Austrian Rent Act which had the effect of greatly reducing the rents to which certain landlords were entitled under existing tenancy agreements. The court held that there had been no de facto expropriation of th eir property, since

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11 they retained the right to use it even if they had been deprived of a large part of their income. Indeed the only example in the decided cases of de facto expropriation was the exceptional case of Papamichalopoulos v Greece
(1993) 16 EH RR 440, in which the applicants were owners of a large area of valuable land in Greece, of which the military dictatorship had assumed control and transferred to the Navy to build a naval base and holiday resort for officers. Although the land was not form ally expropriated, the applicants had been deprived of the entirety of the use and value of the land in question.
29. As to whether a fair balance had been drawn, Mr Maurici drew attention to the emphasis given by European and domestic law to the protection of the environment, and the important responsibilities imposed on the Agency in that regard. The responsibility was particularly strict in respect of sites designated under the Habitats Directive (citing Sweetman v An Bord P leanála
(Galway County Council intervening)
(Case C
–
258/11) [2014] PTSR 1092 , para s
40
–
4
1). He submitted further that it would be contrary to public policy, and inconsis tent with the “polluter pays” principle, for public funds to be used to pay compensation to indi viduals such as Mr Mott, whose activities were found to have caused environmental damage.
30. As an example of the emphasis given to the environment in the Strasbourg case law, he cited Hamer v Belgium
(2008)
( App lication No 21861/03
) . The court under A1P1 uph eld an order for the demolition of a house in a woodland area, which was unpermitted, but had existed as a holiday home for 37 years with the full knowledge of the authorities. The court held that the order was a control, rather than expropriation; and tha t it struck a fair balance, having regard to the wide margin of appreciation enjoyed by authorities in the field of environmental protection: “ … The environment is a cause whose defence arouses the constant and sustained interest of the public, and conse quently the public authorities. Financial imperatives and even certain fundamental rights, such as ownership, should not be afforded priority over environmental protection considera tions, in particular where the s tate has legislated in this regard. The pub lic authorities therefore assume a responsibility which should in practice result in their intervention at the appropriate time in order to ensure that the statutory provisions enacted with the purpose of protecting the environment are not entirely ineffec tive.” (para 79)
31. For Mr Mott, Mr Hockman QC supported the reasoning of the courts below. He submitted that the effect of the conditions was to nullify the practical use of Mr Mott’s lease, and thus amounted to expropriation. But even if they were regarded as

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12 a control, the courts below were entitled to find that they required Mr Mott to shoulder an excessive and disproportionate burden, such that breach of A1P1 could only be prevented by payment of compensation. It was accepted that the Agency had power to pay compensation, and it had done so in the past. The 1975 Act itself
(even following the amendments made by the 2009 Act), recognised that compensation might be necessary in certain cases. Thus, section 26 dealing with limitation of licences for fishing w ith nets provides that where an order under the section would prevent a person from fishing “in circumstances where that person is wholly dependent on the fishing for his livelihood”, the Agency “may pay that person such amount by way of compensation as it considers appropriate”. Discussion
32. The Strasbourg cases show that the distinction between expropriation and control is neither clear
–
cut, nor crucial to the analysis. Viewed from the Agency’s point of view, and that of the public, the restrictions imposed in the present case were (as found by the Court of Appeal) a proper exercise of the Agency’s powers to control fishing activity in the interests of the protection of the environment. We were not referred to any case in which such action has been treated a s amounting to expropriation merely because of the extreme effects on particular individuals or their businesses. However, it was still necessary to consider whether the effect on the particular claimant was excessive and disproportionate.
33. Mr Maurici is ri ght to emphasise the special importance to be attached to the protection of the environment. However, this does not detract from the need to draw a “fair balance”, nor from the potential relevance of compensation in that context. As Mr Hockman pointed out, the potential need for compensation is recognised in other parts of the 1975 Act itself.
34. Compensation played a part in a Strasbourg case close to the present on the facts. Posti v Finland
(2003) 37 EHRR 6 concerned a claim by two fishermen who operated un der leases granted by the Finnish s tate. They complained that restrictions imposed by the government to safeguard fish stocks had failed to strike a fair balance under A1P1. The court held that the fishing restrictions were a control, rather than deprivati on of property, and that the interference was justified and proportionate; the interference “did not compl etely extinguish the applicants’ right to fish salmon and saltwater trout in the relevant waters”, and they had received compens ation for losses suffe red (para
77).
35. By contrast in Pindstrup Mosebru g A/S v Denmark
(2008)
( App lication No
34943/06
) , absence of compensation did not prevent the court ruling inadmissible a claim in respect of restrictions on the commercial exploitation of a peat bog,

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13 regarded as geologically and biologically unique. The court upheld the assessment of the domestic courts that the effect on the claimants was not unduly severe, having regard to the findings that they had not invested in production facilities for the purpose of ex ercising their extraction rights at the bog and that they had access to the extraction of considerable amounts of peat elsewhere
.
36. Against that background I am unable to fault the judge’s analysis of the applicable legal principles in this case. As already noted, he did not find it necessary to categorise the measure as either expropriation or control. It was enough that it “eliminated at least 95% of the benefit of the right”, thus making it “closer to deprivation than mere control”. This was clearly releva nt to the “fair balance”. Yet the Agency had given no consideration to the particular impact on his livelihood. The impact was exacerbated because the method chosen meant that by far the greatest impact fell on him, as compared to others whose use may have been only for leisure purposes. Indeed the judge might have gone further. He thought that the lease might have retained “some small value ” if sold for leisure rather than commercial use. However, as Mr Hockman pointed out, even that is doubtful given the strict limits in th e lease on the power to assign.
37. I would therefore uphold the decision of the courts below. In doing so, I would emphasise that this was an exceptional case on the facts, because of the severi ty and the disproportion (as compared to others) of the impact on Mr Mott. As the Strasbourg cases show, the national authorities have a wide margin of discretion in the imposition of necessary environmental controls, and A1P1 gives no general expectation of compensation for adverse effects. Furthermore, where (unlike this case) the authorities have given proper consideration to the issues of fair balance, the courts should g ive weight to their assessment.
38. I would dismiss the appeal.

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