Permission refused in judicial review of Cornwall IFCA’s emergency octopus byelaw

R (Rowse Fishing Ltd and Burt) v Cornwall Inshore Fisheries and Conservation Authority, AC-2026-CDF-000209, HHJ Keyser KC, 27 October 2026

Charlotte Davies, KBG Chambers’ Head of Civil, acted for Cornwall Inshore Fisheries and Conservation Authority in a judicial review challenge to the emergency byelaw it made in response to the octopus bloom that has transformed the south west inshore fishery. Permission was refused on the papers on every ground, the Claimants’ applications for expedition and a rolled-up hearing were rejected, and the Authority was awarded its costs of the Acknowledgment of Service and Summary Grounds in Response in full.

Background

Section 157 of the Marine and Coastal Access Act 2009 allows an inshore fisheries and conservation authority to make a byelaw which takes effect without confirmation by the Secretary of State, for up to twelve months, where it considers there is an urgent need for the byelaw and the need to make it could not reasonably have been foreseen.

Through 2025 octopus were taken largely as a bycatch of the crab and lobster potting fishery. In the spring of 2026 large vessels arrived from outside the District to target octopus with pots, and effort concentrated on the inshore grounds. None of that activity was within the Authority’s reach, because its permit scheme and its pending vessel length byelaw applied only to fishing for crustaceans. On 12 June 2026, after a stakeholder engagement exercise which drew 97 responses, the Authority made the Octopus Potting (Vessel Specification) Emergency Byelaw 2026, prohibiting vessels over 12 metres from potting for octopus in the District. It came into force on 1 July 2026.

The challenge

The Claimants, a fishing company operating larger vessels and an individual owner, sent a letter before claim within a week of the decision and threatened an injunction before the byelaw took effect. No application was made. The claim was filed on the last day of the three month period, with applications for expedition and a rolled-up hearing.

Ground 1 was that the byelaw was ultra vires because the need for it could reasonably have been foreseen, the Authority having known of the bloom since early 2025 and having considered a vessel length emergency byelaw as long ago as 2022. Ground 2 was that the Authority had failed to have regard to the social and economic considerations which section 153(2) requires it to balance, and had failed to make the necessary enquiries in breach of the Tameside duty.

The decision

HHJ Keyser KC would have refused permission for want of promptness alone. The three month period is a longstop and not a period of grace. Where a byelaw is in force, enforced and carries criminal sanctions, a challenge to its legality must be made quickly, and the Claimants’ explanation came nowhere near justifying the delay in commencing a claim that had been fully advanced in correspondence in June. In the light of that delay the judge thought it “a bit much” that the Claimants had also sought expedition, and accepted that any urgency was of their own making.

On Ground 1 the judge held that what must not have been reasonably foreseeable is the need to make this byelaw. The 2024 byelaw concerned potting for crustaceans. The shift in the spring of 2026 from octopus as a bycatch to octopus as a specific target of larger vessels was a new situation. The ground was not arguable.

On Ground 2 the evidence showed that the Authority had clearly had regard to the socio-economic benefits and to the impact on the vessels affected. The Tameside complaint was really about the adequacy of the Authority’s information. The Authority had consulted. The Claimants had been under no obligation to provide information but could have done so and chose not to. Having sought information, the Authority was entitled to proceed on what it had.

Costs were summarily assessed and awarded to the Authority in full.

Comment

This appears to be the first judicial consideration of the foreseeability condition in section 157(2)(b). Although a permission decision, it supports the reading that the condition attaches to the need for the particular measure made rather than to general knowledge of the subject matter it addresses. It is also a clear reminder that a consultee who declines to supply information when invited will struggle to complain afterwards that the decision-maker acted on an incomplete picture, and that the three month long stop in CPR 54.5 is no substitute for promptness where a measure is already in force.

Charlotte was instructed by Fred Howell of Rubric Law on behalf of Cornwall Inshore Fisheries and Conservation Authority.

Charlotte has a busy and diverse civil practice. If you wish to discuss anything in this article or you want to instruct Charlotte you can contact her clerks on 01752 221551 or civilclerks@kbgchambers.co.uk.