To report on the renewed threat of legal action, its potential implications and actions taken in response.

1.1 In December 2005, Anglesey Council (AC) wrote to the Committee stating their intention to take ‘Declaratory Proceedings’ over their claimed right as a landowner to have a third party (Anglesey Boat Company, ABC) build a marina on land protected under a Fishery Order. The Committee resolved to follow its own legal advice and resist this action. The Committee responded accordingly and AC did not proceed with the action at that time.

1.2 In 2006, the Developer ABC was granted a FEPA licence by the Welsh Assembly for the proposed marina against the advice of government scientific advisors ‘CEFAS’. A consortium of the mussel growing industry in the Strait applied for Judicial Review (JR) of the decision to grant the FEPA licence. The Committee was an interested party in the JR application and the Chief Executive provided a witness statement. The JR was initially refused by the Administrative Court in Cardiff but subsequently granted by the Appeal Court in January 2007. We expect that the JR will be heard in late 2007.

2.1 The letter (Annex A, charts not included) from AC was received on 5 February 2007. The letter purports to set out new grounds for action against the mussel industry by AC which were not included in earlier communications. In addition to the matter of the landowners rights previously claimed by AC to be saved by paragraphs 16 and 18 of the 1962 Menai East Fishery Order (AC letter paragraph 10), AC propose to seek a court declaration that the entire 1962 Order is ultra vires (paragraph 9). A third basis for the AC action (paragraph 11) is that they now claim that section 7 of the 1967 Shellfish Act does not create a limitation in primary legislation on their right to build a marina.

2.2 The letter before action was served on the mussel companies which lease areas 3 and 4 of the Order and the Welsh Assembly in addition to the Committee. This makes the Committee and WAG, together with the mussel consortium to be co-respondents to this action. This situation is in marked contrast to the position over the JR of the FEPA licence where WAG and the Developer ABC are joint defendants against the mussel consortium.

3.1 Urgent legal advice was obtained from Andrew Jackson’s Ltd, the solicitors who have acted for the Committee in this matter since its inception. In summary, the advice is that the Order is not ultra vires and that the saving clauses in the 1967 Act and the Order, do not allow a landowner to use the area protected by an Order for another Development without obtaining a variation to the Order. Further advice is that it is the duty of the public bodies concerned (AC and the Committee) to resolve this matter so that the issue is clarified for future reference.

3.2 After receipt of legal advice the letter (Annex B) was sent from the Solicitors on behalf of the Committee and the mussel consortium respondents. The response states that the Committee will resist all 3 declarations sought and sets out the skeleton arguments which would be developed in the event that the action goes ahead.

3.3 WAG was contacted to establish their view of the action and to offer an exchange of responses. Up to 20 February when their response was not finalised, the stated intention of WAG officials was also to resist the proceedings to find the Order ultra vires. The formal response from WAG will be prepared and sent on their behalf by Treasury Solicitors.

3.4 The WAG position in respect of the alternative proceedings is not clear at this stage but there has been strong evidence in the past that WAG have pursued a policy of supporting the marina. Therefore WAG may be unwilling to defend the declaratory proceedings in respect of the landowner rights.

4.1 The Committee’s legal advisors were not at this stage able to give a definitive view of the consequences if the Order is declared ultra vires but it is clear that if the legal action were to be successful, the implications could be serious and significant. If the Order is not legal we presume that it could immediately cease to provide any protection for the mussel mari-culture operations in the Strait which could then be removed in their entirety. If the saving clauses in the 1967 Act and the 1962 Order are found not to protect the fishery from developments such as a marina, then significant areas of the Fishery Order could be lost and there would be further risk of pollution from the construction and operation of a marina in the Strait.

4.2 The Declaratory Proceedings could have wider ramifications. The Menai Strait (West) Order could similarly be found ultra vires and other Fishery Orders in the UK which operate on a similar basis to the Menai Strait Orders could also be removed. For this reason, Defra and other potentially interested parties such as Seafish, SAGB and other SFC have been informed of the proposed action. In the event that the action goes ahead, the views and support of these bodies will be requested formally.

4.3 AC stated their intention to seek recovery of costs if their action is successful. If the action fails, the Respondents will seek costs. An estimate of costs or how costs would be apportioned among the respondents is not yet clear. Agreement will be sought with WAG and the Mussel consortium on how the costs will be met before action proceeds. There are some funds in the Fishery Order account managed by the Committee which could be sufficient to cover the Committee’s share. In the event that these funds are insufficient, it could be necessary to seek an increased levy on all the Committee’s funding bodies which would include AC.