Planning Appeal Decisions: Whitstable Oyster Fishery Company

Citation:

Oysters have been collected off the coast of Whitstable in Kent for centuries. The right to fish in Whitstable was granted by Royal Patent in 1574. The Company of Free Fishers and Dredgers of Whitstable was incorporated as the Whitstable Oyster Fishery Company (“WOFC”) in 1793 by a Private Act of Parliament: “an Act for incorporating the company of free fishers and dredgers of Whitstable in the County of Kent and for the better ordering and governance of the fishery”. WOFC still exists to this day.

Around 2008, WOFC started a new method of cultivating oysters by placing them in mesh bags attached to metal trestles in the inter-tidal zone. Having been advised by Canterbury City Council (“CCC”) that the trestles did not require planning permission, WOFC expanded the farm significantly. In 2018, CCC changed their mind about the trestles requiring planning permission and issued an enforcement notice requiring the removal of all trestles landward of the mean low water mark (the limit of their jurisdiction), citing concerns relating primarily to the effect on the Swale Special Protection Area (“SPA”), a designated bird habitat site protected by the Habitats Regulations.

CCC’s position in relation to the SPA was prompted by the stance of Natural England, the statutory consultee in relation to habitats, who had advised that applying the precautionary principle the risk of an adverse effect on the integrity of the SPA due to disturbance of wintering birds could not be ruled out.

By the time of the enforcement notice, the trestles were essential to the operations of WOFC, enabling the company to produce around 100 metric tons of oysters per year (equivalent to 1 million oyster shells).

WOFC appealed against the notice under s.174 of the Town and Country Planning Act 1990. A local campaign group called the Whitstable Beach Campaign obtained “Rule 6” status in the appeal, objecting to the trestles on grounds relating to ecology, character and appearance, recreational amenity, navigational safety and marine litter. Following an adjournment of the initially scheduled dates due to the Covid-19 pandemic, a 10-day public inquiry took place in July-August 2021.

In the run-up to the inquiry, Natural England reiterated their view that the risk of adverse effect on the integrity of the SAC could not be ruled out. However, they indicated that they would not attend the inquiry.

WOFC therefore asked the Inspector (Katie Peerless) to exercise the power under s.250(2) of the Local Government Act 1972 to summons Natural England to attend the inquiry for cross-examination (a power very rarely if ever invoked previously). The Inspector invited Natural England to do so, and an hour before they were due to be cross-examined, Natural England withdrew their objection subject to the imposition of a condition restricting working on the oyster farm in conditions below minus 3 degrees Celsius.

CC withdrew their opposition to the trestles once Natural England accepted that adverse effects on site integrity of the SPA could be ruled out.

On 25 October 2021 the Inspector allowed WOFC’s appeal.

A copy of the decision is available here.

Charles Banner QC appeared for WOFC and advised throughout the 3+ year duration of the case. He lead Matthew Fraser of Landmark Chambers and was instructed by George Crofton-Martin of Furley Page LLP.

Counsel

Charles Banner KC

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