IN THE HIGH COURT OF JUSTICE CO 358/2000
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Monday, 27th November 2000
MR JUSTICE NEWMAN
THE QUEEN ON THE APPLICATION OF BEEVERS AND OTHERS
THE ENVIRONMENT AGENCY
(Computer-aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2HD
Telephone No: 0207-421 4040/0207-404 1400
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Official Shorthand Writers to the Court)
MR S TROMANS (Instructed by Richard Buxton, Environmental & Public Law, 40 Clarendon Street, Cambridge, CB1 1JX) appeared on behalf of the Applicants.
MS R HAYNES (Instructed by the Environment Agency, Rivers House, 21 Park Square South, Leeds, LS1 2QG) appeared on behalf of the Respondent.
J U D G M E N T
(As approved by the Court)
Monday, 27th November 2000
1. MR JUSTICE NEWMAN: This application for judicial review came before me on 24th July of this year. The applicants comprise farmers taking the proceedings with the support of two trusts, the Yorkshire Wildlife Trust and the World Wildlife Fund for Nature. The application concerned the operation of the Barmby tidal barrage on the River Derwent in Yorkshire. The application as formulated and pursued in the hearing before me, which was adjourned after one and a half days, was premised on the basis that the operation of the barrage was a plan or project falling within the Conservation (Natural Habitats) Regulations 1994, ("the Habitats Regulations"). It is not necessary for me to do other than to summarise the main points of the Habitats Regulations, but they are the domestic implementation of EC commission directives, in particular the Habitats Directive.
2. The application was preceded, as one might expect, by an exchange of correspondence, initially by way of enquiry as to whether the Agency accepted that the operation of the barrage was a plan or project within the Habitats Regulations and consequentially gave rise to obligations upon the Agency to carry out particular assessments and review contemplated by the directives. The Agency's position then and now, even though the parties have come to terms, is that the operation of the barrage was not a plan or project.
When the parties were before the court, and indeed it is apparent from the correspondence which took place before coming to court, it was known, and indeed one might say well-known, that the Agency were carrying out a review, but it was not a statutory review under the Regulations, as dictated by the terms of the Directive. It was a review which the Agency had set in being in conjunction with English Nature and the Yorkshire Water Services. It was called the Lower Derwent Project. The objectives of the project were generally stated as: (1) to ensure the efficient, effective and sustainable management of water resources in the Lower Derwent Valley; (2) to achieve a balance between water supply and the environment of the Lower Derwent Valley; (3) to demonstrate the impact of current major abstractions in the valley based on some signs; and (4) to adduce an agreed operating plan for the environmentally sustainable management of water resources in the Lower Derwent Valley.
3. The correspondence before the hearing in July demonstrates that as between the experts for the applicants and the Agency, some consideration was being given as to whether the particular matter upon which the applicants were concerned to receive assurances was going to be dealt with within the Lower Derwent Project. It is enough to state this issue in this way, namely that the operation of the barrage, established under statutory power in 1972, included authorisation of the building construction and operation, but a requirement to maintain the water level in the Lower Derwent at a minimum of four feet. This, it was said by the applicants, was a matter of critical importance to the preservation of the meadows which were caught by, or included within, the European directives as being meadows of outstanding significance, not only by reason of the hay or grass and range of rare wild grasses which grew there, but also within the meaning and contemplation of a Birds Directive, also from Europe.
In any event, the applicants' main point was that the requirement to keep the level of the water at a minimum of four feet served to render ineffective and inoperative the drainage system long established for the water meadows, namely the use of cloughs, which enables the flood water, once it has deposited its alluvial soil, to soak away back into the river course.
4. The adjournment of the hearing was for a number of reasons. In particular, concern was expressed by the court as to the range of issues which the case raised, so far as the Environment Agency was concerned. Whether or not the court was to deal with the matter simply upon the basis of the then identified areas of statutory obligations, or whether there were not other areas under which the Agency might become under a duty to act in the way suggested. Secondly, whether or not the Environment Agency were, on their own, the appropriate respondent, if it was decided that steps had to be taken to prevent the minimum water level being maintained. There would then have to be an amendment to the 1972 Order, and questions arose as to who would have the power to do that and to what extent the Environment Agency would be involved. All these matters required more attention than seemed available to the court and the matter was adjourned.
5. By skeleton arguments lodged for this adjourned hearing it became apparent that, so far as the Agency were concerned, they were adhering, without compromise, to the position that they had always maintained, namely that they were not bound in accordance with the directives and thus the Habitats Regulations, to carry out an assessment as though the operation of the barrage was a plan or project. But they accepted that within Article 6(2) of the Directive there were general obligations, concerning conservation and the prevention of deterioration of protected habitats, which could, in certain circumstances, and indeed in any continuing circumstances, give rise to a basis for challenge by way of judicial review. But, as Ms Haynes for the Agency points out, that was not the basis upon which this challenge was launched. Article 6(2) of the Directive was plainly mentioned in the course of the Form 86A grounds, if not otherwise in skeleton arguments, but it was not something which formed the suggested basis of an entitlement to relief by way of judicial review.
6. The upshot of that has been that the parties have come to terms with the following difference between them as to costs. Ms Haynes, for the Agency, submits that absolutely nothing has been achieved by the applicants which they had not already obtained by the voluntary action of the Agency Mr Tromans, for the applicants, submits that but for that which he does have by agreement, he would have gone on in order to pursue his claim for judicial review. Both parties accept that it is not for this Court at this stage, one might add mercifully, to have to seek to resolve this difference between them as to costs by carrying out an evaluation of the respective merits of the legal argument and factual arguments which underlay the application and the response to the application.
7. It is thus a situation in which it is agreed, as a matter of principle, that I have to deal with the difference between them in what is described as a "broad brush way". It is sometimes thought that such an approach makes the court's task easy. Not so in this case.
The first point that seems to me to be relevant in litigation such as this, is that in an area, for example where the environment is under consideration, parties are often at loggerheads with each other because one of them has a desire to pursue a commercial interest, which may be in some way or another affected by environmental considerations. But in this case, it is obvious that all the parties and supporters on each side have the same objective and the same interest, namely the proper management and preservation of these recognised sites of environmental significance. The difference which have given rise to costs of £50,000 have been about the manner in which that objective was to be achieved.
8. It was an essential part of the case, as first advanced, for the applicants to establish that Regulation 50 of the Habitats Regulations applied to the operation of the Barmby barrage. That, of course, was a conclusion which would have derived from a decision that the operation was a plan or project. The point of principle was important to the applicants in order to establish their legal threshold for relief. The point of principle was of course significant for the Agency, because if a plan or project, within the meaning of the Regulations, was wide enough to encompass completed projects such as the Barmby barrage, it could give rise to obligations other than in relation to this particular barrage.
So far as the consent is concerned, the Environment Agency have held their ground. They have held their ground because the agreement is without prejudice to the argument, and indeed acknowledges the fact that they do not accept that Regulation 50 of the Habitats Regulations 1994 applies to the operation of the barrage.
9. What then can it be said that the applicants have achieved? The applicants have the advantage of undertakings. They have the undertaking to review, as soon as reasonably practicable, whether the 1972 Order is likely to have a significant effect on the hay meadows, as a European site under the Habitats Regulations. More particularly, they have that which the earlier correspondence was pointing towards, namely a recognition, in order to avoid misunderstanding, not necessarily to fill a lacuna, but to clarify the objective of the Lower Derwent Project as being one which, so far as the Environment Agency are concerned, will include the identification of the effect of the operation of the barrage on the water levels in the Derwent, on the cloughs and on their ability to discharge water from the Ings into the river.
They also have an undertaking that if the respondent is unable to amend the terms of reference, it will obtain the information necessary to carry out this review by other means. There is also an undertaking which is, in effect, that if it turns out that the integrity of the site will be adversely affected by the operation of the barrage, that appropriate steps will be taken to modify the regime, if necessary by amendment of the 1972 Order. To that, with much more elegance than the expression comprises, Ms Haynes says "so what", because that was all, in effect, on offer and in being beforehand. Because that is exactly what we were doing, and therefore these proceedings have served no practicable purpose.
10. I do not accept that these proceedings have served no practicable purpose. I can see the force in Mr Tromans' submission, that in having undertakings on the matters which I have summarised, the applicants were entitled to reasonably conclude that they had achieved something, and something of some significance. Albeit it is true the Agency have not accepted the legal liability under Regulation 50, they have assumed, by their undertaking to the court, a liability by virtue of the undertaking, and the undertakings do extend to particular attention being paid to the specific concerns of the applicants. It being the position that the proceedings have achieved some practicable purpose, what is there to lead to a conclusion other than the one Mr Tromans submits is correct, namely that they should have their costs?
11. In my judgment, Ms Haynes is right to point out that in a situation where the court is not in a position to determine the merits of the legal argument or the merits of the underlying case, weight should be paid to the fact that the Agency have remained consistent and made no concession throughout in respect of their legal arguments. She submits, without quite the same degree of force as in my judgment is appropriate, that they have undertaken to do that which they were already doing. I have made my observations in relation to that.
Ms Haynes submits that, the position of the Agency not having changed and the shift in position of the applicants, being based, it would appear, upon Article 6(2), as being the strongest arguable ground for giving rise to a basis for challenge, the case has shifted at the instance or at least should be taken to have shifted at the instance of the applicants, in the light of a concession by her in her latest skeleton argument, and that thus the applicants' approach has not been matched by the same degree of consistency.
12. In my judgment, the extremes of the position which have been taken up (I do not mean by that unreasonably), namely that the applicants should pay all the respondent's costs or that the respondent should pay all of the applicants' costs, even on a broad brush approach cannot reflect the range of issues to which this application gave rise.
So far as each is concerned, as I have indicated they have all had a common objective and I assume have all acted in good faith in order to achieve the common objective. They have done their best before these proceedings to debate the matter together, but without success. The institution of these proceedings has achieved a focusing of attention for the better fulfilment of their agreed objective. It seems to me that, so far as each of these parties are concerned, it would be wrong to convict either side in costs. On a "broad brush principle", in my judgment, this piece of litigation should be terminated upon the basis that each party pays its own costs.
Thank you both very much.
13. MR TROMANS: My Lord, I am asked to seek your permission to appeal against that order on the basis that essentially all that was sought was achieved, and on the basis that the Agency had every opportunity to respond in the way which they now have some months ago. Those two factors, my Lord, in my submission are relevant factors in relation to any decision as to costs. On that basis I would ask for your permission to appeal.
14. MR JUSTICE NEWMAN: So far as application for permission to appeal is concerned, the matter, as everybody acknowledged, requires the court to exercise its discretion having heard each side. It being the case of discretion, permission is refused.
15. Thank you very much.