Case Note: Of Mussels and Marinas: The Menai Mussels

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INTRODUCTION

The development of common areas remains a policy of particular controversy, not least where public rights - the grant of which may extend back for decades or even centuries -may be curtailed or adversely affected. Such instances, often involving a complex web of legal rights drawn both from public and private law, most frequently involve encroachment upon eclectic privileges applicable to common land. To date little substantive consideration has been accorded to the interests of fisheries, notwithstanding the steady proliferation of maritime developments for industrial and recreational purposes. Isle of Anglesey County Council v Welsh Ministers* involved a rare instance of such a case, specifically concerning the application of rights over the foreshore. The case is significant as it clarifies operative principles in the case of long-standing fishing rights, which often involve a complex licensing process through obscure legislation and had received little previous judicial attention in this regard.

THE FACTS OF THE CASE

The rather unlikely focus in this particular case was a colony of juvenile mussels located within a farmed area within the Menai Strait in North Wales. The first claimant, the legal successor to an amalgamated group of defunct public corporations, had been approached in early 1998 by a local company with a view to establishing a marina development close to the picturesque town of Beaumaris, on the southern shore of Anglesey, which would encompass an area of some 10 hectares. The first claimant, Anglesey County Council, holds the freehold on pail of the foreshore at the site of the proposed marina, while parts of the seabed form part of the property of the second claimant, the Crown Estate Commissioners.

In March 1999 a formal planning application was submitted to the hirst claimant, along with a detailed environmental impact assessment. The EIA observed that the proposed work would entail considerable dredging and construction work along the seabed, as well as a substantial amount of reclamation, the depositing of debris and the anchoring of pontoons into the seabed. Consent to the project was granted by the Council in December 1999, following which it was promptly called in by the Welsh Assembly and a public inquiry was convened. The Inspector at the inquiry considered that the project should be refused because of the prospect of adverse environmental ramifications at the site of the development. In July 2002 the Welsh Assembly overruled this recommendation and subsequently issued conditional planning consent in January 2003.

The proposed development and subsequent grant of planning permission raised considerable disquiet within the local fishing community, with particular concerns surrounding the projected impact of the marina upon shellfish farming activities. A small but not insignificant shellfish industry had been established in the Mcnai Strait, generating an income to the region estimated at between £5.5 and £6.6 million, making it the most profitable fishery of its type in UK waters. Commercial shellfish farming in these waters dates back to the Mcnai Strait Oyster and Mussel Fishery Order 1962, made pursuant to the Sea Fisheries Act 1868 by the then Ministry of Agriculture, Fisheries and Food, whose duties in this regard had subsequently been subsumed into those of the first defendants, the Welsh Ministers. The second defendants, North Western and North Wales Sea Fisheries Committee, constituted the successor organisation to the original grantees of the Order, under which they were precluded from exercising personal rights over the fishery, which they instead sectorally administered and leased to a series of operators. Two such lessees were the third and fourth defendants, who cultivated mussels on a commercial basis and argued strenuously that the proposed development would have a catastrophic effect upon their operations.

The proposed marina development, as ultimately approved by the Welsh Assembly, was projected to occupy approximately 1.5 percent only of the total area of the fishery. Nevertheless, the area in question was seemingly of vital importance to shellfish farming as a result of both the peculiar life-cycle and protective measures necessary to cultivate mussels. Mussel (arming follows a three-stage process, involving the collection of mussel seedlings from alternative areas of the Welsh coast, followed by undergoing a crucial process of hardening, whereby the external shells calcify and harden. The hardening process must occur in intertidal areas, where there is a virtual absence of natural predators, as the mussels have no natural defences to predation at this stage. Once the hardening process is complete the mussels may then be moved to a subtidal area to grow, before eventually being harvested. The proposed marina was therefore of particular concern to the third and fourth defendants as, although the geographical range of the development within the fishery was essentially miniscule, it was expected to occupy a significant proportion of the viable hardening areas within the sectors allocated to these operators.

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