gallows_point_marina

NORTH WESTERN AND NORTH WALES SEA FISHERIES COMMITTEE

OFFICER’S REPORT

Gallows Point Marina proposal

Report by the Chief Executive

Purpose of Report

To provide an update on this development proposal.

Recommendation

That the current position should be noted

That an application by the Menai Strait mussel industry for Judicial Review of the decision to grant a FEPA licence for the marina development should be supported by the Committee.

1. Background

1.1 A proposal to build a marina at Gallows Point in the Menai Strait, Anglesey, has been under development for a number of years. Planning permission was granted in 2003 but other licences and permissions are outstanding.

1.2 The proposed marina would require part of a mussel growing lay leased from this Committee under the Menai Strait (East) Several Fishery Order. This lay has certain growing characteristics which make it of great importance to the mussel culture operation. The Committee's legal advice is that attempts by the Developer to obtain the area within the Order should be resisted

1.3 In 2005, Ynys Môn Council stated their intention to seek a legal judgement on their right to construct the proposed marina over part of the Several Order area. The Committee discussed this in closed session at the last 2 meetings and a response has been prepared. In January 2006 Ynys Môn indicated that this action would not be taken until other permissions had been obtained.

2. Food and Environment Protection Act (FEPA) Licence

1.1 A FEPA licence is required for this proposed development. For coastal developments in Wales that require a FEPA licence, applications are assessed and decided by NAW but granted by the Marine Consents and Environment Unit (MCEU) of Defra and DofT on behalf of NAW. A FEPA application from the developer of the proposed marina has been outstanding for a number of years without a decision by NAW. The statutory advisors on the FEPA, The Centre for Environment, Fisheries and Aquaculture Science (CEFAS) advised in 2004 (background paper 1) that a FEPA licence should not be granted on the grounds that there are risks of unacceptable changes to the hydrological regime in the Strait as well as increased pollution and bacteriological contamination which could result in damage to the mussel culture industry.

1.2 NAW undertook a statutory consultation on the FEPA application which ended in early 2006 and to which the Committee officers sent a response. The Committee’s response objected to the development on the grounds that the risk to the mussel culture industry and the environmental condition of the Strait was too great. It also advised NAW of the Committee’s view on the legal question over the development arising from the provisions of the Fishery Order and the 1967 Act and suggested that the FEPA licence should not be granted until this doubt had been resolved.

1.3 Despite this advice from CEFAS and NWNWSFC, NAW decided to grant the FEPA licence which was issued by MCEU on 10 April 2006 with conditions (Annex A). NAW took the view that the legal doubt over the proposal did not mean that the application should not be assessed on its merits. The concerns over the environmental status of the Menai Strait are considered to have been answered by the conditions of the licence which require a monitoring programme to identify impacts of the development.

2. Expected next stage of the proposal.

2.1 Following the granting of the FEPA licence, representatives of the mussel industry including Committee Member, Kim Mould have met with their lawyers to consider the opportunity for a legal challenge to this licence. They were advised that there are various grounds on which an application for a Judicial Review of the decision to grant the license could be mounted.

2.2 The grounds for applying for a Judicial Review are tightly defined. They relate to:

· whether the decision maker has come to a reasonable decision based on all the facts,

· the definition of what constitutes reasonableness, and

· whether the facts have been considered properly in terms of legitimate use of the sea.

2.3 Lawyers' advice was that on all these grounds a case could be made for judicial review. Also, the case would be strengthened if the Committee could provide the supporting witness statement reciting the Committee’s position regarding development of the Order, extent of the Order, the Committee’s role, the nature of the legislation under which they are grantees of the Several Order, the way in which the Committee operate in terms of the lays and lay holders and its views on the protection of that fishery.

2.4 An application for Judicial Review must be prepared within 3 months of the granting of the licence, i.e. 11 July 2006. A protocol letter should by the time of the meeting, have been sent from the Industry lawyers to NAW and the developers indicating an intention to apply for Judicial Review. Please note that the action is not being brought by the Committee but by the industry, however, the support of the Committee for the application in the form of a witness statement as above, has been requested.

2.5 In line with previous resolutions of this Committee, Officers consider that it would again be appropriate for the Committee to seek to protect the environmentally sustainable and economically valuable mussel fisheries and the jobs they provide in this relatively deprived area of North Wales by supporting this action. Subject to the approval of the Committee, officers will provide a witness statement in support of the application.

STEPHEN ATKINS

Chief Executive

5^th May 2006

LOCAL GOVERNMENT (ACCESS TO INFORMATION) ACT, 1985

List of Background Papers

1. CEFAS advice on the Gallows Point marina

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