Lord Ordinary rules parts of sea fishing licence variations unlawful in context of Scottish marine policy

About this case:

• Citation:
  [2023] CSOH 39
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Braid

The Open Seas Trust, a charity whose purposes include the conservation of marine species in UK waters, argued that the Scottish Ministers, through Marine Scotland, were required to take the NMP into account when taking decisions to vary licence conditions in accordance with powers accorded to them by the Fisheries Act 2020.

The petition was considered by Lord Braid in the Outer House of the Court of Session. J Findlay KC appeared for the petitioner and C O’Neill KC for the respondent.

Significant impact

On 30 December 2022, the respondent published a notice under regulation 3 of the Sea Fishing (Licences and Notices) (Scotland) Regulations 2011 by which, among other things, the general conditions applicable to all Scottish sea fishing licences were varied. Had the variations not been made, Scottish licenced vessels which were not members of a Producer Organisation or a Scottish Quota Management Group would have had a larger allowable catch of nephrops and unrestricted fishing time in an area comprising the Solway Coast and part of the Irish Sea.

The notice no longer had any practical effect, the quarters to which it related having passed. However, the petitioner sought declarator that the notice was unlawful insofar as it was issued without consideration of the effect on Priority Marine Features of the variations made thereby, in contravention of the requirements of section 15 of the 2010 Act.

Senior counsel for the petitioner submitted that he requirement to take authorisation decisions in accordance with the NMP meant that the respondent had to grapple with the policies of the plan in reaching such decisions. An analogy could be drawn with town and country planning, with which there were strong parallels. The approach taken of achieving the purpose of the plan by SSI was all well and good but was insufficient on its own.

For the respondent it was submitted that its approach was proportionate. It would be disproportionate to require the respondent to consider each and all of the policies in the NMP and to assess whether variation of licence conditions would have a significant impact on the national status of PMFs. The NMP envisaged decisions being taken in the long-term public interest after appropriate engagement with the public and required decisions to be reached on a sound evidential basis. None of that was possible in the context of setting catch and effort limits for existing licences for a three month period.

Plain intention

In his decision, Lord Braid observed: “The respondent’s position might well have been correct if the duty had simply been a general one to act in accordance with the plan. In a wide sense, the respondent is acting in accordance with the plan, by embarking on a process of appraisal, engagement and consultation with a view, eventually, to promulgating an SSI or SSIs. But that is not what section 15 of the 2010 Act requires. It expressly requires the respondent to take any authorisation decision in accordance with the NMP unless relevant considerations indicate otherwise.”

He explained further: “It is hard to see how a decision can be taken in accordance with a plan, unless regard is had to that plan. That regard is to be had to the plan is surely confirmed by subsection (3), which provides in terms that a public authority must “have regard” to the appropriate marine plan in making a decision which relates to the exercise by it of any function capable of affecting the whole or part of the Scottish marine area, but which is not an authorisation or enforcement decision. The legislative intention is plain.”

On the petitioner’s analogy to town and country planning, Lord Braid said: “I endorse what was said by Holgate J in R (on the application of Swire) v Canterbury City Council (2022), albeit in the context of town and country planning, namely, that ‘in accordance with’ means in agreement or harmony with, and does not connote an exact or strict degree of conformity. Deciding whether a development is in conformity or harmony with a plan may well involve matters of planning judgment and degree. Applying that to the present context, deciding whether conditions attached to fishing licences are in accordance with the NMP may likewise involve questions of judgment.”

He concluded: “There must be a decision as to whether the development under consideration is in compliance or conflict with the development plan, so that the decision maker can undertake the planning balance in an informed way. That exercise does not involve a mechanistic approach of judging the proposals against each and every policy that may be prayed in aid of a development or against it, but an evaluation of main policy areas within the development plan that are relevant to the proposal to be determined and an assessment of how the proposal fares against them, so that a judgment can be made against the development plan as a whole.”

The case was thereafter put out by order to discuss the precise terms of the order to be made.