Lymington River Association - Statement August 2013 

 LRA Responds to High Court Decision on Possible Judicial Review and Sets out Position for Future Monitoring of W Class Mitigation Scheme Currently in Operation

Following the recent decision of the High Court which rejected the LRA's request for a Judicial Review of the government’s refusal to set aside the results of the Wightlink Public Enquiry in October last year the LRA has issued the following statement. LRA has sought permission to appeal the decision.

LRA seeks determination on the requirements of the section of the Habitats Directive that Wightlink appear to have avoided and which the members of the EMP seem to be unclear about. The result of this confusion is Wightlink are causing loss of habitat in the Lymington River and are allowed to do so if they put mud on a section of marsh a mile away ! This is clearly not what the Habitats Directive provides for, which is NO Negative Impact, the game of words by Wightlink that the site is one area and so long as the whole site is not losing habitat then damaging one part of it is OK. The Boiler Marsh conservation, if it were so, would be very welcome but it is a separate project, it may contribute to reducing the risk of marsh area break up but it does not create new habitat as claimed by Wightlink.

The position of the LRA has never been that it wished to stop the vital Wightlink ferry service linking Lymington and Yarmouth which is very much in the interests of both communities as well as the Isle of Wight generally.

However Wightlink's cynical decision to ignore the advice of Natural England and to unlawfully introduce the much larger W class vessels in 2009 and the unwillingness of the authorities to take any effective action to require Wightlink to obey the law, meant their actions would have gone unchallenged. 

Far from being the vexatious litigant which Wightlink have chosen to characterise the LRA as, the High Court fully supported every aspect of the LRA's position in 2009 and found that Wightlink had “Put  its commercial interests before its duty as a Harbour Authority” and had acted unlawfully in introducing the vessels without any environmental assessment and against the advice of Natural England and the Lymington Harbour Commission .  The LRA's costs were paid in full which would not be the case if the High Court had viewed our actions as in any way vexatious.

The LRA’s legal action was therefore contributory to requiring  Wightlink to undertake a proper environmental impact assessment from which a mitigation programme involving habitat creation at Boiler Marsh supervised by an Environmental Monitoring Panel, was eventually agreed and given legal force following the Public Inquiry.  Without the action of the LRA in undertaking legal action, no environmental mitigation for the damage caused by the vessels would have been put in place and there would be no Environmental Monitoring Panel in operation today.

However welcome as the mitigation programme is in at least some action towards marsh conservation , the LRA is far from satisfied that the damage being done to the estuary was fully taken into account by the Planning Inspector in the Public Inquiry last October which is why the LRA saught leave for a Judicial Review of the Inspector's decision. 

At the heart of the issue which LRA were asking the High Court to  set before a Judicial Review, was the nature of the Public Inquiry itself whereby the Inspector appeared to set aside European law on habitat protection in favour of economic benefits, which on planning grounds alone she felt were more important than habitat protection.  Legal advice to the LRA was and remains, that a Planning Inspector is not legally allowed to set aside the legally binding habitat protection rules designed to protect the most important areas in the country.

In ordering that Wightlink should on economic grounds be allowed a greater number of sailings than Natural England wished to see permitted, the Planning Inspector appears to the LRA to have taken to herself powers which European law states can only be exercised by a Government Minister and even then only after a full and proper assessment of alternative methods of avoidance of negative impact have been fully examined.

Looking to the future the LRA will await advice from its lawyers on the High Court appeal.

Speaking after the decision of the High Court LRA spokesman Stephen Akester said:

The LRA will however continued to engage with the relevant authorities and make representations to the members of the Environmental Monitoring Panel who are supervising the level of damage which the vessels are causing to the river and which they have decided has to be mitigated by habitat creation at Boiler Marsh.  

We continue to have reservations about the management and independence of the Environmental Monitoring Panel which is currently run by Wightlink and whose principal source of scientific analysis is provided by ABPMer, Wightlink's paid consultants.  We currently have concerns about the independence of the information provided to the Environmentally Monitoring Panel by Wightlink's consultants who in their latest report to Environmental Monitoring Panel appeared to be suggesting that all previous surveys of the depth of the river were subject to such large errors that they should be ignored in future assessments of the damage caused by the W class ferries.  This appears to give the green light to ignore much of the damage which the vessels have already caused and establishing a new baseline for future assessments which will further reduce the apparent impact of the vessels .

The LRA have requested that independent stakeholders, such as the LRA and others are included in the membership of the Environment Monitoring Panel to ensure that an independent viewpoint can be included in its discussions but so far this request has not been acknowledged.  If Wightlink are serious about engaging with a wide range of stakeholder groups we would urge them to allow the LRA to become members of the Environmental Monitoring Panel to demonstrate that the process is open and transparent.

In the meantime we will continue to monitor the effects of the W class on the Lymington River and the success or otherwise of the habitat creation programme at Boiler Marsh.  In the long term the LRA will endeavour to work with all groups and the relevant authorities to try and ensure that preservation of the remaining salt marshes  - which give Lymington River its unique character - continues to be a high priority.  In the past the preservation of these salt marshes has not been given enough importance and there can be little doubt that the excessive speed which characterised the Wightlink service in the past together with the failure of the Harbour Commissioners at the time to control the speed of the C Class vessels, has been responsible for some of the marsh loss which has occurred over the last 30 years

We very much hope that working in conjunction with the authorities and making representations to the Environmental Monitoring Panel, we can help bring about policies which put preservation of the marshes at the heart of the management of the river in the years ahead.  We very much hope that the members of the Environmental Monitoring Panel will have necessary independence to properly monitor and assess the effects of these large vessels on the Lymington River.  If, as many suspect, the W class vessels are found to be causing major deepening to the river and loss of the river banks and surrounding marshes in the years ahead, we plan to see that the Environmental Monitoring Panel will  take the necessary actions to ensure that proper management is put in place .