High Court dismisses challenge to grant by Natural Resources Wales of consent for use of canoes on River Wye

National Resources Wales (NRW) acted correctly when it gave permission for canoes to be used on a protected stretch of the River Wye, the High Court has found.

In Townley, R (On the Application Of) v Natural Resources Wales [2021] EWHC 2391 (Admin) His Honour Judge Jarman QC, sitting as a judge of the High Court, refused permission for local resident Clive Townley to take the matter to judicial review.

Various parts of the Wye are designated as special areas of conservation under the Conservation of Habitats and Species Regulations 2017 and some additionally as sites of special scientific interest.

NRW is required under Regulation 24(1) of the Habitats Regulations to make an appropriate assessment of the implications for a site's conservation objectives when an activity is proposed there and may give consent “only after having ascertained that the plan or project will not adversely affect the integrity of the site”.

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It granted consent in January 2021 for Wye Valley Canoes - an interested party in the case - to launch canoes onto the river from a boat house at Glasbury,

This was limited to launching up to 40 canoes, 20 kayaks and five paddle boards a day from the boat house, which must not be launched when frequent grounding is likely in the passage downstream to Hay-on-Wye.

NRW imposed this condition to avoid damage and deterioration to the riverbed, gravel shoals and water crowfoot beds.

Mr Townley owns land and fishing rights downstream of Glasbury where canoeists paddle.

He challenged the permission granted to Wye Valley Canoes on the ground that NRW did not fulfil its obligations under the Habitats Regulations to be satisfied beyond all reasonable doubt that mitigation would be effective where there was a likely significant effect on the site.

HHJ Jarman said the condition on avoiding frequent grounding “comes comfortably within the margin of appreciation to be afforded to NRW”.

The judge said NRW was required to be sure consent would not adversely affect the integrity of the site.

It did not though have to be sure that no part of the riverbed or gravel shoals would be disturbed or that no part of the water crowfoot beds will be damaged.

"It is difficult to see how that level of certainly could ever be achieved as to such damage, as opposed to adverse effects on the integrity of the site, even if the suggestion of a low water gauge of 0.67 meters taken at one point on this stretch of the river were adopted,” HHJ Jarman said.

He said Mr Townley would have to show the NRW’s mitigation condition was so unreasonable that no competent authority proceeding lawfully could have come to such a decision.

“That is a high threshold, and one which in my judgment is not arguably reached,” the judge said.

He went on to dismiss Mr Townley’s argument about lack of consultation, saying “none is required by law” and rejected a claim that NRW improperly took account of Wye Valley Canoes’ business interests.

Mark Smulian

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