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Cite as: [2009] ECHR 1839
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28 October 2009
FOURTH SECTION
Application no.
31965/07
by Alison HARDY & Rodney MAILE
against the United
Kingdom
lodged on 24 July 2007
STATEMENT OF FACTS
THE FACTS
The applicants, Ms Alison Hardy and Mr Rodney Maile, are British nationals who were born in 1946 and 1935 respectively and live in Milford Haven. They are represented before the Court by Mr R. Buxton, a lawyer practising in Cambridge.
A. The circumstances of the case
1. The Background facts
The facts of the case, as submitted by the applicants, may be summarised as follows.
a. The Dragon site
In around 2002, Petroplus applied to Pembrokeshire County Council for planning permission to develop a liquefied natural gas (LNG) terminal on a site at Milford Haven harbour (“the Dragon terminal” or “the Dragon site”).
On 21 October 2002, Milford Haven Port Authority (“MHPA”) wrote to Pembrokeshire County Council acknowledging receipt of an extensive Environmental Impact Assessment. MHPA noted that:
“As a Port Authority, we have a duty to assess anticipated building works in the waterway in respect of their impact upon navigation, and also of course have a responsibility for maintaining and regulating the use of the waterway in a safe and effective manner.”
MHPA indicated that its marine department had been working closely with marine advisers to Petroplus to assess the feasibility of LNG vessels transiting the port area and berthing at the proposed jetties. The conclusion was that the identified and agreed means of navigation and operation “more than adequately” contained the risk associated with handling such vessels. MHPA also pointed to the benefit to the marine service community of the increase in traffic which would result from the development and the diversification into new sectors of activity. In short, MHPA was:
“...supportive of [the] proposed development and have no concerns regarding safety or navigation in this respect”.
On 19 March 2003, Pembrokeshire County Council granted planning permission for an LNG terminal at the Dragon site.
On 25 April 2003, an application was made by Petroplus to extend the LNG terminal at the Dragon site. The application, together with an environmental statement, was considered at Pembrokeshire County Council’s Planning and Rights of Way Committee meeting on 21 October 2003. The minutes noted that the Health and Safety Executive (“HSE”) had not advised against the granting of permission for the extension on safety grounds. They also recorded that MHPA strongly supported the proposal and was confident that the port had the capacity to handle the extra shipping traffic and that there would be no negative impacts on the satisfactory risk assessment already undertaken. The environmental statement highlighted safety aspects as a matter for assessment, noting that an HSE safety report would be required before the plant could be operated. It concluded:
“An independent risk assessment of both the currently approved development and the proposed expansion has been carried out by [Petroplus]. This assessment considered adjacent residential property ... The assessment concluded that the level of risk presented by the extended LNG Terminal remains within the levels that the HSE considers tolerable and broadly represents an acceptable level of risk.”
On 11 February 2004, Petroplus made an application, accompanied by an environmental statement, for amendments to the approved LNG terminal.
On 1 March 2004, Petroplus applied for hazardous substances consent for the storage of LNG.
A report prepared by the HSE for consideration on 2 September 2003 demonstrated some initial examination of the modalities and consequences of a major release from a delivery ship whilst moored at the jetty. The relevant section concluded:
“It is clear that such plumes, centred on the jetty, are capable of engulfing the densely populated developments of Milford Haven (town), Neyland or Pembroke Dock. But without PCAG Guidance on the frequency to be assigned to the release, an ignition probability analysis cannot be undertaken to determine the significance in risk terms ...
...
The paper has included some consideration of releases from delivery ships whilst moored at the jetty, but the analyses are incomplete due to shortage of data. A complete methodology could be developed over time.”
On 10 September 2004, planning permission was granted for an extension at the Dragon site and for the amended scheme.
In a report dated 12 October 2004, the Director of Development of Pembrokeshire County Council summarised the views regarding the application by Petroplus for hazardous substances consent in respect of the amendments to the LNG terminal. The report recorded that strong objections had been received from residents of nearby areas calling, in particular, for “all health and safety information concerning the proposed Milford Haven LNG Terminals [to be] made publicly available and openly debated before any further consents are given to build”. It also recorded that the HSE had confirmed that its statutory obligation was complete when all shore-based activities had been assessed and had been taken into account. Such activities, in the present case, would include the transfer of LNG from the ship to the shore and storage and regasification of the LNG. They would not, however, include the risks from ships moored at or approaching the jetty. The assessment of such risks would fall to the Maritime and Coastguard Agency (“MCA”).
The report continued as follows:
“The MCA has confirmed that as the national maritime administration, it would have responsibility for the safety of LNG tankers, transporting the cargo, whilst inside UK territorial waters. Although it would continue to have some general responsibility for the vessel when it passed from UK territorial waters into the Milford Haven Port Authority’s jurisdiction area, the MCA take the view that primary responsibility passes to the competent harbour authority. The MCA has stated that it would be reasonable to assume that there is some, unspecified increase in ‘risk’ by virtue of the explosive nature of LNG as a cargo. The Port Authority would be expected to allow the proposed activity to go ahead only where this risk has been reduced to ‘as low as reasonably practicable’. The mitigating actions initiated by the Port Authority would then be reflected in the Port’s safety management system which they are required to have in place through the Port Maritime Safety Code. The MCA have a range of responsibilities for various ‘operational’ aspects of the code including a general monitoring role for compliance with the Code by Port Authorities.”
The Port Authority’s submissions were recorded in the report as follows:
“The Port Authority has confirmed its jurisdiction including responsibilities (and powers) to regulate the use of the Haven and the overarching views of the MCA on a UK basis ... The MCA’s role in regard to LNG ships specifically would be that of Port State Control Inspectors looking into the condition and standard of shipboard operations of the vessels from a safety standpoint. The Port Authority has confirmed that its marine personnel, including pilots, have participated in risk assessments with teams from both proposed terminals facilitated by independent risk consultants. The Port Authority state that the outcome has been to confirm that Milford Haven has the capability of handling these vessels safely. The Port Authority has also confirmed that the security issue addressed through the International Ship and Port Facility Security Code which sets out detailed security requirements for ships and port facilities based on risk assessments to determine the level of risk and the measures necessary to meet that risk. Port facilities including Petroplus have been required to produce a security plan before operations start and this plan has been and will continue to be approved by Transec as the UK Government body responsible for security.”
The report recommended that the application be approved.
On 7 December 2004, Pembrokeshire County Council approved the application for hazardous substances consent in respect of the Dragon Site.
b. The South Hook site
On 21 January 2003, Qatar Petroleum and ExxonMobil applied for hazardous substances consent for the storage and gasification of LNG at another site at Milford Haven harbour (“the South Hook terminal” or “the South Hook site”). Unlike the Dragon terminal, the South Hook site fell within the authority of both Pembrokeshire County Council and Pembrokeshire Coast National Park Authority and an application was accordingly made to both bodies.
Qatar Petroleum and ExxonMobil instructed an environmental statement with relation to the proposed development at the South Hook site. Chapter 14 of the statement dealt with major hazards and explained, at 14.12, as follows:
“The COMAH Regulations govern land based industrial hazards. Under these, the proposed terminal will include the jetty, to the point where the loading arms connect to a berthed LNG carrier. The jetty comes within the jurisdiction of the Milford Haven Port Authority, which has responsibility for marine navigational safety and loss prevention issues within the 200 square mile Waterway.”
On 28 April 2003, Qatar Petroleum and ExxonMobil applied to Pembrokeshire County Council and Pembrokeshire Coast National Park Authority for planning permission to develop an LNG terminal at the South Hook site.
On 15 May 2003, MHPA wrote to Pembrokeshire County Council in support of the proposed development in terms similar to their letter of 21 October 2002 in respect of the Dragon site.
The minutes of a meeting of Pembrokeshire County Council’s Planning and Rights of Way Committee on 21 October 2003 recorded that the HSE had not advised against the granting of permission for the development on health and safety grounds and that MHPA supported the proposed development and had no concerns regarding safety or navigation. One letter of objection from a member of the public had been received. The environmental statement accompanying the application highlighted the issue of health and safety and referred to the HSE’s work in examining the proposal for planning permission and the application for hazardous substances consent. No other body was mentioned with regard to the health and safety aspects of the proposal.
On 12 November 2003, planning permission was granted by Pembrokeshire Coast National Park Authority in respect of the South Hook Site.
On 18 December 2003, planning permission was granted by Pembrokeshire County Council in respect of the South Hook Site.
On 8 January 2004, the HSE provided observations in respect of the application for hazardous substances consent at the South Hook terminal. It noted that:
“Our specialist team has assessed the risks to the surrounding areas from the activities likely to result if these Consents are granted. Only the risks from the hazardous substance for which the Consent is being sought have been assessed, together with the risk from these same substances in vehicles that are being loaded or unloaded. Risks that may arise from the presence of other substances have not been taken into account in this assessment.”
On 10 February 2004, the Chief Executive of MHPA wrote to Pembrokeshire Coast National Park Authority with responses to some questions raised. He wrote:
“What we need to ensure is that these large LNG ships are managed in such a way that they are safely and effectively accommodated ...
...
Our approach for accommodating these potential LNG vessels, as it is with managing all ship movements, is by detailed risk assessment taking into account the characteristics of the ships and the terminal to be used, and through a detailed approach making use of simulators and our own pilots and technical teams working with those of the project proposers, together with a wide range of specialist consultants to determine the requirements to meet this objective. The result will take into account, for example, the number of tugs required for a movement; the number of pilots; whether tugs should be escorting the vessel ...; the limits on any weather conditions to allow a movement to take place (e.g. only when the wind is say less than x knots); the timing of any movement related to tidal conditions etc.
...
Similarly, because we have a duty to support and allow all shipping movements, we do not intend to close the Port whilst an LNG ship enters or leaves – it is not necessary and does not improve the assessed situation, indeed would probably make things worse in that other movements would bunch up either before or afterwards and cause operational difficulties and pressures as a consequence. What we will probably be seeking to do (and I say probably because we are still very much involved in the risk assessment of a wide variety of scenarios) is that there will be a restriction on vessels being within a given distance of an LNG ship when transiting the Haven ...
I also understand that some questions have been raised about the distance at which other vessels will be allowed to pass an LNG ship at the South Hook Jetty, given that this stretches some way into the Haven and that the main shipping channel in this vicinity is used by all other commercial ships being that their berths are further upriver. Again, we are researching this, testing on the simulators and undertaking risk assessments, but it is likely that we will be looking to undertake some dredging to widen the shipping channel to the South so that some vessels, including the ferry, will be able to pass the South Hook Jetty with an LNG ship alongside at a further distance than would be the case otherwise. We are also looking at other ways of controlling shipping passing the South Hook Jetty in such circumstances which could include criteria of speed, tugs in attendance, maybe even a ‘guard’ tug in the vicinity of the LNG ship and restricting any movements to one vessel at a time, certain weather conditions etc”
On 4 March 2004, the Western Telegraph newspaper published a question and answer article with ExxonMobil regarding the LNG terminal. Relevant extracts are quoted below:
“Could LNG explode if there was a collision at sea or in the Haven? Or could it explode for any other reason?
The South Hook sponsors have been working closely with organisations such as Milford Haven Port Authority to ensure that the possibility of a shipping incident is extremely low. Vessels are also designed to withstand significant impact. If an LNG release were to occur from a shipping incident, and if it were ignited, then the effect would be localised to the vessel and its immediate surroundings and unlikely to impact the land. The recent Health and Safety Executive assessment examined the consequence of such an incident and found no cause for local concern.
...
What would happen if there were a spill on sea or on land?
Health and Safety Executive experts have considered potential spill scenarios and have found no areas of concern. An incident at sea is extremely unlikely, and the current design of ship is aimed at minimising the likelihood of release in the event of collision. Milford Haven Port Authority has emphasised its ability to safely handle LNG shipping.
...
Would it not be better if such a terminal was in a more uninhabited area?
The HSE’s review has concluded there are no safety reasons to object to the proposed development. Our plans will be subject to a further safety review by the HSE, Environment Agency and the Coastguard under the Control of Major Hazards (COMAH) requirements. We, as operator, will have to demonstrate that all necessary measures have been taken to prevent major accidents. Any issues raised locally relating to safety systems, operating procedures and emergency response plans will have to be fully addressed.”
On 10 March 2004 Pembrokeshire Coast Park Planning Committee considered the application for hazardous substances consent. Concerns were raised at the meeting regarding the absence of any quantitative risk assessment on tankers and the need to dredge the channel to increase its depth.
On 2 April 2004, Pembrokeshire County Council approved the application for hazardous substances consent in respect of the South Hook Site.
Pembrokeshire Coast National Park Authority approved the application on 19 August 2004. On the same day, the development planning officer of Pembrokeshire Coast National Park Authority, in a letter to the HSE, MHPA and Pembrokeshire County Council’s Emergency Planning Officer, highlighted concerns about the lack of comprehensive structure for assessing the risks of the project, saying:
“Members however were still extremely concerned about safety issues and are hoping that the COMAH process is rigorous and very demanding and addresses all issues.
This concern has arisen partly because of the fact that there does not appear to be one overriding Authority but a number of bodies involved whose responsibility does not overlap – and where the edge of that responsibility may be a bit blurred, and a genuine concern about exactly which body is responsible for what.
The major concern appears to be the possible conflict between ships using the channel whilst an LNG slip is tied up at the jetty. Objectors seem to think that the space available is too narrow and that there is the potential for accidents if the jetty remains where it is ...
I assume that this will be an issue that will be addressed in some detail driving the COMAH process and given my members’ concern I would be grateful if you could keep this Authority informed of progress in respect of the COMAH submission.”
ExxonMobil’s representatives were also advised of this concern by letter of 19 August 2004 and were asked to “ensure that the issue is fully addressed at the time of the COMAH submission”.
c. The Health and Safety Executive’s risk assessment of the two projects
The HSE is a government body responsible for supervision of health and safety matters.
In the context of its assessment, the HSE conducted a preliminary examination of potential marine spill scenarios, including the consequences of a major release from a delivery ship while moored at the jetty. It concluded that this could result in a flammable cloud capable of engulfing, among other towns, the town of Milford Haven. However, it ceased work on this aspect of risk before it was concluded and therefore never completed its assessment of the marine risks.
On 2 February 2006, in a letter to the Guardian newspaper, Geoffrey Podger, Chief Executive of the HSE, wrote:
“Re your report on the gas terminals at Milford Haven: I am happy to make clear that the HSE gave independent advice in the public interest and was not swayed by any external pressure... The reason the HSE examined the shore side operation but not the risk of an accident at sea is simply because we have no legal competence to assess risks from ships while at sea or under the direction of the ship’s master. We made this clear to the local authorities and suggested they consult others, including the Maritime and Coastguard Agency, to assess these risks prior to any consent being granted.”
d. Milford Haven Port Authority’s risk assessment of the two projects
MHPA is an independent, commercially run organisation. It is responsible for safety issues at Milford Haven harbour. It has a statutory duty to both Government and its stakeholders.
On 23 February 2004 the Chief Executive of MHPA was asked which body had ultimate responsibility for assessing the risks involved in the movements of LNG tankers in Milford Haven. He replied on 25 February 2004, confirming that;
“The Milford Haven Port Authority is responsible for the conservancy (management, regulation, provision of navigation aids and systems etc) of the Waterway. This includes the regulation and management of all shipping movements. We have a statutory responsibility to support all traffic and indeed, in common with all UK ports, cannot forbid a ship to enter (except in particular circumstances as laid down in appropriate Acts of Parliament). What we can and do lay down are the conditions under which movements will take place – e.g. time of entry, state of tide, number of pilots, number of tugs etc.”
On 27 September 2004, in a letter to Pembrokeshire County Council, the Harbourmaster of MHPA clarified the extent of MHPA’s responsibilities:
“[MHPA] has navigational jurisdiction over the Waterway ...
This jurisdiction includes responsibilities (and powers) to regulate the use of the Haven. Our primary objectives in this regard are to maintain, improve, protect and regulate the navigation and in particular the deep water facilities in the Haven ...
Whilst the HSE have said that the Maritime and Coastguard Agency are the UK competent authority, this is correct inasmuch as they regulate shipping at sea and through legislation. As a competent authority they have an overarching view UK wide. Indeed, they advise on primary legislation which can affect the Port Authority and may act as auditors for the Port Marine Safety Code to which this Authority wholeheartedly subscribes. Their role in regard to LNG ships specifically would be that of Port State Control inspectors looking into the condition and standard of shipboard operations of the vessels from a safety standpoint.
Marine personnel from the [MHPA], including pilots, have participated in risk assessments with teams from both proposed terminals facilitated by independent risk consultants. The outcome has been to confirm that Milford Haven has the capability of handling these vessels safely
...
[Security] is addressed through the International Ship and Port Facility Security Code ... which sets out detailed security requirements fir ships and port facilities based on risk assessments to determine the level of risk and the measures necessary to meet that risk.
Port facilities throughout the Haven including Petroplus have been required to produce a security plan, appoint a security officer, provide additional security equipment, monitor and control access of people, cargo and stores as well as ensuring effective security communications. There will be a similar requirement for the South Hook terminal to prepare a security plan before they start operation.”
In a report dated 13 April 2005, Lloyd’s Register Risk Assessment Services, on the instructions of MHPA, examined and summarised high level statistics for worldwide accidents involving ships. Experience of just a fire or explosion on board a ship large enough to potentially injure people nearby was “as likely per year as being struck by lightning”. The report observed that the likelihood of an LNG incident was extremely low and that there had never been a recorded incident of a major release of LNG from a ship to external atmosphere and no member of the public had ever been injured by LNG from a ship. The authors explained that the report carried a moderate level of error in light of the high level statistics used and concluded that more detailed research could be carried out to address the specific risks at Milford Haven.
In a paper of 20 May 2005, the Chief Executive of MHPA summarised the position regarding the LNG terminals. On the matter of risk assessments, the paper noted:
“One of the concerns constantly banded about by Safe Haven [a campaign group which opposed the LNG developments] ... is the lack of quantified risk assessment. This is a fallacy either through genuine misunderstanding or a deliberate refusal to accept what has been told.
We have undertaken a significant amount of risk assessment both ourselves with the terminal operators, their advisers and making use of specialist third parties. The terminal developers themselves have also undertaken quantified risk assessment some of which related to shipping movements and we have made use of these in our own processes.
To assist us in this we recently commissioned a report from Lloyds Register Risk Assessment Services looking specifically at the risk of incidents in Milford Haven large enough to potentially injure people nearby.
Their conclusion was that there is as much risk of being struck by lightning as there is of being injured by any explosion including fire from LNG in the Haven ...”
On 9 June 2005, a journalist contacted the Chief Executive of the MHPA asking “What risk assessments have Milford Haven Port Authority undertaken in relation to plans to import LNG to South Hook and Waterson sites (with specific regard to the marine-based risk)?”. In an email response dated 15 June 2005, Mr Sangster, Chief Executive of the MHPA indicated that a number of risk assessments had been undertaken as part of the process of determining the way in which LNG ships would be managed. He referred to the commissioning of “studies and reports from experts and consultants”. He indicated that, as a port, the MHPA had a statutory duty to facilitate and support any use of the waterway, noting:
“... as a port authority we have no say in the selection of the sites, our responsibility is managing the ships that will visit the sites chosen.”
Accordingly, he explained, the studies were not designed to determine whether MHPA would handle LNG ships, but rather how it would handle them.
In its summary grounds lodged with the High Court in subsequent judicial review proceedings (see further below), MHPA provided details of the risk assessment work it had carried out. In particular, it stated:
“The Authority has been and continues to be under the Port Marine Safety Code to assess safety. It has worked closely with the developers to ensure that what is proposed will be safe and has undertaken a series of robust risk assessments.
In summary, the Authority has been an active participant in the process of risk assessment undertaken by [Petroplus and ExxonMobil] since Spring 2002. It has undertaken simulation tests and made specific recommendations about navigation and procedures to minimize hazards. The Authority has visited LNG tankers, other Port Authorities and terminals which handle LNG, trained pilots, harbour masters and managers and obtained and commissioned advice from consultants about potential hazards.
...
The Authority’s risk assessment has been open in that it has, for example, explained what has been happening in its annual reports. Moreover, it has taken part in a range of public presentations and responded to any enquiries that it has received from interested members of the public and other stakeholders.”
The grounds continued to set out in paragraph 28, by way of illustration, some of the specific risk assessments undertaken, including: a marine traffic analysis of vessel movements through the port during a 25-day period in November 2002 by a marine and risk consultant, Marico Marine; a concept risk assessment by South Hook LNG Terminal Company Ltd, with the participation of MHPA, dated 9-10 December 2002 identifying hazards, consequences and possible mitigation measures relating to potential use of Milford Haven port for the importation of LNG; a report by the Maritime Research Institute Netherlands (MARIN), dated 14 February 2003, on simulations to check the nautical consequences of future 200,000m3 LNG carriers; a March 2003 navigational risk assessment by Marico Marine; a MARIN report of 19 May 2003 on fast time simulations for large LNG ships; a technical report dated 13 October 2003 by Det Norske Veritas (USA) Inc., a major classification society, in respect of South Hook LNG Terminal Company Ltd’s proposal assessing the marine risk associated with vessel manoeuvres in the channel and around the South Hook terminal for discharging cargo from LNG vessels; a report dated 20 February 2004 by ABS Consulting, an international consulting operation experienced in the analysis of shipping collisions, for South Hook LNG Terminal Company Ltd, dealing with potential damage to LNG tankers due to ship collisions; a report dated March 2005 from Burgoyne Consultants, international consulting engineers and risk consultants, updating a report on the potential consequences of fires and explosions involving ships carrying petroleum products (including LNG); a November 2003 report commission by South Hook LNG Terminal Company Ltd from HR Wallingford, the former research facility for the Ministry of Defence, dealing with mooring safety and the possibility of disturbance caused to moored vessels; and a report by Gordon Milne, senior risk analyst at Lloyd’s Register of Shipping, commissioned by MHPA assessing the risk of explosion and gas release from LNG carriers. MHPA refused to disclose any of these reports citing commercial confidentiality.
2. The first judicial review proceedings (planning permission and hazardous substances consent)
On 4 March 2005, the applicants filed an application for leave to apply for judicial review in respect of the grant of planning permissions and hazardous substances consent for the South Hook and Dragon terminals. They alleged a failure to carry out a comprehensive environmental impact assessment of the project as a whole; a failure to have regard to the risk arising from marine traffic and to consider alternative locations for the LNG terminals; and a fundamental misunderstanding as to the characteristics of LNG in the event of an escape.
On 26 July 2005, leave to apply for judicial review was refused on the grounds that the challenge was not made sufficiently promptly and there was undue delay and that quashing the planning and hazardous substances decisions would substantially prejudice the rights of ExxonMobil and Petroplus and cause them substantial hardship and would be very detrimental to good administration.
Mr Justice Sullivan summarised the decisions being challenged in respect of the South Hook site as: (1) planning permission by Pembrokeshire Coast National Park Authority on 12 November 2003; (2) planning permission by Pembrokeshire County Council on 18 December 2003; (3) hazardous substances consent by Pembrokeshire County Council on 2 April 2004; and (4) hazardous substances consent by Pembrokeshire Coast National Park Authority on 19 August 2004. The decisions being challenged in respect of the Dragon site were: (1) planning permission by Pembrokeshire County Council on 19 March 2003; (2) planning permission by Pembrokeshire County Council for an extension on 10 September 2004; (3) planning permission by Pembrokeshire County Council for an amended scheme on 10 September 2004; and (4) hazardous substances consent by Pembrokeshire County Council on 7 December 2004.
Mr Justice Sullivan noted that, insofar as the applicants complained of the absence of a comprehensive environmental impact assessment or its failure to take account of marine risks, the complaints were directed towards the grant of planning permission itself, rather than hazardous substances consent. In both cases, relevant planning permissions had been granted more than three months before the judicial review proceedings were brought.
Having concluded that there was no good reason why the three month deadline for bringing judicial review proceedings had not been respected as regards all of the decisions except the 7 December 2004 decision and that there was no good reason that the 7 December 2004 decision was not challenged “promptly” as required by the relevant Civil Procedure Rules, Sullivan J went on to consider the extent of any hardship or prejudice to third party rights and detriment to good administration which would be occasioned if permission were nonetheless granted. He concluded that it was clear that the grant of relief to the applicants “would cause really significant damage in terms of hardship and/or prejudice” to the rights of the owners and operators of the South Hook and Dragon terminals. He further considered that it would be detrimental to good administration to allow a challenge to decisions going back as far as March 2003.
Finally, Sullivan J considered whether the public interest required that the application should proceed. In this context, he considered Article 2 of the Convention but concluded that the public interest did not merit the granting of permission out of time, noting (at paragraph 82):
“... It would not be possible to resolve the substantive matters in dispute without examining in considerable detail the decision-making processes that were employed by [Pembrokeshire County Council and Pembrokeshire Coast National Park Authority] in respect of each of the decisions under challenge. In these circumstances it would not be right to start from the premise that it would not be in the interests of good administration to maintain the decisions because they were unlawful, as on occasions the claimants’ submissions appeared to do.”
The applicants appealed.
On 24 January 2006, the applicants indicated their intention, in the event that permission was granted, to apply for a disclosure order seeking disclosure of all the documents referred to in paragraph 28 of MHPA’s summary grounds and any other documents relevant to the proceedings. The application notice specified that the application was made in order to “cover the situation should the Court grant permission to apply for Judicial Review”. They also applied for a protective costs order in respect of the second applicant, who had at that stage not been granted legal aid.
On 17 March 2006, the Court of Appeal handed down its judgment. Lord Justice Keene considered the applicants’ arguments under Article 2 of the Convention. Referring to Vo v France, he pointed out that the Court had upheld a four-year limitation period on the right of access to court in a case where the right to life was invoked. He concluded (at paragraph 26):
“It is obvious that public safety is potentially an issue of importance and that, if there is evidence that it has been overlooked or not properly considered by the decision-maker, then that may justify permission to seek judicial review. Public safety must be a material consideration in the decision-making process carried out by the hazardous substances authority, irrespective of Article 2 considerations.”
However, he considered that Sullivan J had been alive to the Article 2 and public safety issues which arose in the case, noting that:
“The Milford Haven Port Authority is a statutory body required to ensure the safety of waters within its jurisdiction. The evidence before Sullivan J made it clear that the Port Authority was satisfied as to the safety of the terminal proposals, so far as its own sphere of responsibility was concerned, while the Health and Safety Executive had advised that it was content so far as the land-based activities were concerned. Both these bodies had advised the decision-makers, the County Council and the Park Authority, who were entitled to rely on the specialist advice received from those bodies.”
Keene LJ accordingly concluded that it was open to Sullivan J to find that the merits of the applicants’ claim did not outweigh the undue delay and the prejudice which permission to proceed would produce.
Observing that it was “strictly speaking unnecessary to scrutinise in greater depth” the planning decisions in light of his findings on delay, Keene LJ nonetheless addressed briefly the issues raised. He noted that the applicants’ argument was that while MHPA had assessed the likelihood of a collision, this was insufficient in itself and they ought also to have carried out a risk assessment into the consequences of any such collision. Keene LJ disagreed that the risk assessment had been inadequate. He considered that the risk of collision “was undoubtedly dealt with by the Port Authority”, as counsel for the applicants conceded during the hearing. He pointed out that the Port Authority had advised both bodies responsible for granting planning permission and consents that it had the “capability of handling these vessels safely”. As to counsel for the applicants’ argument that an assessment of the risk of collision was insufficient and there had to be an assessment of the consequences for the local population of a vapour cloud, Keene LJ concluded (at paragraphs 32 and 33):
“One has to bear in mind in this connection the very extensive assessments carried out by the Health and Safety Executive, because these provide the context for the Port Authority’s assessment. The Health and Safety Executive did assessments which considered both the consequences and the likelihood of an escape of LNG for all land based and jetty-based activities. Those included the risk of catastrophic failure of an LNG storage tank at the terminal; the failure of a loading arm at the jetty while LNG was being transferred from ship to shore; and ‘major release from a delivery ship while tied up at a jetty’: see HSE responses to Park Authority, 5 March 2004, and the HSE Summary Grounds of Resistance, paragraphs 10 and 11. Having carried out these assessments, the Health and Safety Executive did not object to the proposal for either terminal on safety grounds. The applicants do not criticise the work done by the Health and Safety Executive.
That body made it clear in its response of 5 March 2004 that it was not responsible for advising on accidents ‘whilst the ship is not attached to the jetty’. But the Port Authority, which is responsible for advising on such accidents, did participate in an assessment process which led to a risk assessment submitted by the South Hook LNG Terminal Company Limited in December 2002 ‘to identify hazards, consequences and possible mitigation measures’ relating to the use of the port as proposed: see the Port Authority’s Summary Grounds of Resistance, paragraph 28(b) (emphasis added). It refers in those grounds to a number of other reports and exercises carried out, so that it could fulfil its statutory responsibilities for safety. In any event, once the Health and Safety Executive had concluded that there were no unacceptable risks to the local population arising from either a catastrophic storage tank failure on land or a major release of LNG from a tanker tied up at a jetty, the crucial element in any assessment of risk from a vessel not moored to the jetty must have been the risk of a collision. The risks to the population from a vapour cloud travelling over land or sea had already been considered by the Health and Safety Executive, since the jetties end far out in the Haven. What the Port Authority needed to concentrate on above all else was the risk of a collision, and that it seems to have done.”
Permission to appeal was refused. In a subsequent discussion of the application for disclosure, Lord Justice Keene noted that it was related to the prospect of a substantive hearing had permission to bring judicial review proceedings been granted, and that permission had not been granted. Accordingly, no order as to disclosure was made.
Prior to the judgment being handed down, the applicants had been provided with a copy in draft for comment on typographical errors. The applicants’ legal advisers immediately recognised that the judgment contained an error of fact at paragraph 32, where Keene LJ had made reference to the HSE assessment of the consequences of a “major release from a delivery ship while tied up at a jetty”. The applicants’ solicitor wrote to the court on 15 March 2006 advising that no such assessment had in fact been carried out and requested the court to consider the implications of the factual error before confirming its conclusions in the draft judgment. In the event, no change was made to the relevant paragraph of the draft judgment before it was handed down in its final form.
On 10 April 2006, the solicitor for the applicants made an application to the Court of Appeal under the Civil Procedure Rules (“CPR”) Part 52.17 to have the judgment of 17 March 2006 re-opened. The application was made on the basis, inter alia, of an obvious factual error, namely, the court’s finding that there had been an assessment of the marine risks, and the court’s failure to rectify the error before handing down its final judgment despite having been advised of the error by the applicants’ advisers. The solicitor noted in the application that although as a matter of routine such applications go back to the original tribunal, he would imagine that the members would recuse themselves in this case.
On 27 April 2006, solicitors for the Health and Safety Executive advised all parties involved in the proceedings as well as the Court of Appeal of a mistake in the HSE’s Summary Grounds of Resistance. The statement to the effect that the HSE’s comprehensive risk analysis included risks associated with “major release from a delivery ship while tied up a jetty” was incorrect. The correct position was reflected in a previous letter dated 16 August 2004:
“Risks that may arise from the presence of other substances, or from the presence of LNG on a delivery ship, either when sailing or when berthed, have not been taken into account in the assessment.”
On 8 May 2006 the Court of Appeal ordered that there should be an oral hearing on the question of permission in the Part 52.17 proceedings, limited to the question whether the application for permission to appeal should be re-opened in light of the information provided by the HSE.
On 19 May 2006, the applicants’ solicitor requested that the matter go to a freshly constituted tribunal and that the scope of the hearing be widened to allow them to canvass all of their complaints concerning the judgment. On 13 June 2006, the Court of Appeal declined to vary its order of 8 May 2006.
On 12 July 2006, the matter came before the original tribunal. It heard and refused an application that its members recuse themselves.
On 19 July 2006, the Court of Appeal refused permission to re-open the application. Lord Justice Keene highlighted that the error of fact arose in the context of his discussion of a matter which he had indicated was not strictly necessary in light of his other findings. He nonetheless considered the implications of the factual error identified and concluded that although MHPA might well have concentrated on the safety of navigation, it was clear that in light of the work it had done it felt able to advise that it had no concerns regarding safety or navigation in respect of the proposed developments. He concluded (at paragraphs 20 to 23) that:
“... The significance of the error in terms of public safety has to be seen in context.
That context is that both the HSE and the Port Authority had undoubtedly carried out a number of exercises and studies before advising the planning authorities that there was no objection on safety grounds. The HSE for its part had assessed the consequences of an escape of LNG from a land-based storage tank; from the failure of a loading arm at the jetty; and from the guillotine rupture of a thirty inch pipeline between the jetty and the storage tanks ... Those assessments have not been criticised. It is to be observed that the HSE assessments of the failure of a storage tank on land included that of a catastrophic failure, which would take place at a location not obviously more distant from the areas of population than the proposed jetties. Yet the HSE was satisfied that public safety would not be jeopardised, presumably because of the very low likelihood of such an incident.
The Port Authority for its part had carried out a range of studies referred to in its summary Grounds of Resistance at paragraph 28. Those were, as one might expect, largely directed towards an assessment of marine risks. They included a report from a Senior Risk Analyst at Lloyd’s Register of Shipping, commissioned to assess the risk of explosion and gas release from LNG carriers ... There was also evidence before the judge and before this court that there had never been an incident of major release of LNG from a ship to the external atmosphere ...
The Port Authority has statutory responsibilities for safety within the Haven and it advised the decision-makers, the County Council and the Park Authority, that there was no such risk to public safety as to warrant refusal of the applications. It was principally for the Port Authority to decide on what research was necessary for it to be so satisfied. It is not for this court or any court to try to second guess the Authority’s decision on what it needs by way of research in order to advise the decision-makers, unless it is obvious that it has neglected its statutory duties. The evidence falls far short of that. In short, the factual point now seen to be mistaken was of limited significance even on this aspect of the case. Moreover, as Mr Straker on behalf of the Port Authority submits, that Authority has powers, if at any time it should appear to it that the risks are likely to be greater than presently seem to be the case, to prevent the jetties being used for LNG unloading, and of course the planning authorities also have powers to revoke the consents with which these proceedings are concerned.”
Having set out the position as regards assessment of marine risk, Keene LJ concluded:
“But in any event, I come back to the fundamental point, which I indicated earlier, namely that the mistake of fact now relied on by the applicants did not occur in an essential part of this court’s reasoning when it dismissed this application for permission to appeal.”
The applicants’ solicitors subsequently wrote to the then Head of Civil Justice asking for advice on what could be done. He replied that a new Part 52.17 application could be made, which would be considered by a Lord Justice who had not been on the original tribunal. The applicants’ solicitor duly lodged a new Part 52.17 application. Wall LJ considered the application and, concluding that the members of the tribunal had not erred in refusing to recuse themselves, dismissed the application by order of 2 October 2006.
The applicants sought leave to appeal to the House of Lords the decision of the Court of Appeal tribunal not to recuse itself. The House of Lords refused leave on 13 March 2007 on the grounds that it “discerned no error of law”.
In or around May 2007, the second applicant was advised by the Legal Services Commission that his application for legal aid had been granted.
3. The requests for information
On 23 December 2004, the solicitor for the applicants wrote to MHPA requesting access to environmental information. On 5 January 2005, MHPA responded stating that it did not see any benefit in responding.
On 7 January 2005, following the entry into force of the Environmental Information Regulations 2004 (“EIR 2004”), the solicitor for the applicants wrote again to MHPA. On 31 January 2005, he wrote a third time explicitly under the EIR 2004. On 1 February 2005, MHPA responded stating that it did not see any benefit in responding.
On 15 February 2005, the solicitor for the applicants asked MHPA to reconsider its response in accordance with Regulation 11 of EIR 2004. By letter dated 18 March 2005, MHPA responded that it remained to be convinced that EIR 2004 was applicable.
On 22 April 2005, the solicitor for the applicants wrote to the Information Commissioner asking him to confirm whether MHPA was a “public authority” for the purposes of EIR 2004.
On 22 October 2005, a request was made to MHPA by members of the public under the Freedom of Information Act 2000 to see all formal, documented risk assessments which had informed MHPA’s decision that it could handle LNG vessels safely. MHPA replied on 2 November 2005 advising that it was not subject to the Freedom of Information Act. It indicated that it sought to respond to questions and concerns but that it did “not intend, however, to make the large amounts of information obtained through the planning process publicly available as raw data”, although the information had been made available to regulatory bodies and agencies.
On 10 November 2005, solicitors for the applicant made a further request to the solicitors for MHPA to see copies of risk assessments and reports referred to in their summary grounds of defence lodged in the judicial review proceedings. They also requested copies of any subsequent marine risk assessments undertaken in respect of the LNG terminals.
On 14 November 2005, the Information Commissioner’s Office confirmed that MHPA did constitute a “public authority” for the purposes of EIR 2004. It further advised that MHPA could nonetheless continue to refuse to disclose the information sought if it did not constitute “environmental information” for the purposes of the regulations, or if any of the exceptions to the disclosure obligation applied.
On 17 May 2006, solicitors for the applicant wrote to the Information Commissioner’s Office requesting an update on the investigations into MHPA’s failure to disclose requested documents.
By letter of 26 June 2006, MHPA replied to the applicants’ solicitor’s requests for disclosure under EIR 2004. MHPA indicated that while it had concluded that it did fall within the ambit of those regulations, it was not required to disclose the risk assessments carried out in respect of the LNG terminals at Milford Haven, on the basis that these constituted operational, and not environmental, information. MHPA did, however, provide a copy of an Environmental Assessment undertaken prior to the widening of the channel opposite the two terminals. It also offered to provide such environmental information as could be extracted from operational reports, on the basis that the costs of doing so would have to be met by the applicants. The letter concluded:
“... we have gone to great lengths to explain and describe not only the details of what we are doing but why, and the outcomes in terms of the formation of our plans for handling LNG ships. What we have not done is make freely available large volumes of information, as it is our firm belief, that to do so would be irresponsible and confusing for the public. The information needs to be put into context of not only the purposes for which it was obtained, but also the explanations and conclusions drawn from it. We maintain that the best way to do that is through personal contact, presentations and explanations on given courses of action ...”
On 29 June 2006, the applicants’ solicitor write to MHPA asking it to reconsider its decision and challenging the assertion that information pertaining to risk assessment did not constitute “environmental information” in terms of regulation 2 of the EIR 2004.
On 14 July 2006, MHPA responded. It advised that many of the risk assessments undertaken were not instructed in order to advise the planning authorities but in order to assess MHPA’s own operational requirements for handling LNG ships in Milford Haven. However, the assessments subsequently assisted MHPA in providing the necessary advice to the planning authorities. MHPA offered to extract relevant environmental information for the sum of approximately GBP 400. The solicitor for the applicants subsequently asked for information from two reports only, namely, a report by Gordon Milne, senior risk analyst at Lloyd’s Register of Shipping, commissioned by MHPA assessing the risk of explosion and gas release from LNG carriers (“the Milne report”); and (ii) relevant extracts containing environmental information of a report entitled “Qatargas II Project: Milford Haven Marine Concept Risk Assessment” (“the Qatargas report”). He requested a new quote on that basis.
On 28 September 2006, the Chief Executive of MHPA advised the applicants’ solicitor that he was unable to disclose any of the material requested as to do so “may seriously jeopardise the fairness of the [judicial review] proceedings ...”. He also relied on the refusal of the companies concerned to consent to the disclosure of material from the reports. In weighing up the public interest test, as required by EIR 2004, he noted that notwithstanding the presumption in favour of disclosure, MHPA had concluded that disclosure was not in the public interest as the information requested should not be made publicly available without an explanatory context and where it would cause unnecessary confusion or concern. The applicants’ solicitor replied on 29 September 2006 expressing his disappointment and disputing MHPA’s reliance on the exceptions set out in regulation 21 of EIR 2004. He referred the matter to the Information Commissioner.
On 16 November, the applicants’ solicitor wrote to MHPA advising that in light of this Court’s findings in Giacomelli v. Italy, no. 59909/00, ECHR 2006 ..., it would commence judicial review proceedings regarding the failure of MHPA to disclose documents unless the information was provided within 12 days.
On 12 March 2007 the Information Commissioner issued a Decision Notice under section 50(1) of the Freedom of Information Act 2000 ordering disclosure of the Milne report and the Qatargas report. As regards the public interest test, the notice advised that:
“In this particular case, the Commissioner believes that there is a very strong public interest in the disclosure of environmental information relating to the development of LNG terminals in Milford Haven. The LNG developments are locally controversial ... Disclosure of environmental information of the type requested in this case could add significantly to public knowledge of the risks posed by the development and better inform public debate.
Furthermore, the Commissioner believes that there is a public interest in ensuring that the Port Authority is undertaking its duties effectively and that it adequately assesses and manages risk within the Haven. In terms of high-profile and potentially hazardous developments such as the LNG terminals, there is a legitimate public interest in demonstrating that public safety has been fully considered by all relevant authorities, including the Port Authority, at each stage of the development process.”
On 25 April 2007 MHPA appealed the ruling to the Information Tribunal. However, on 1 October 2007 it withdrew its appeal and provided copies of the Milne Report and relevant extracts of the Qatargas report to the applicants.
4. The second judicial review proceedings (disclosure of documents)
While the MHPA appeal was outstanding, the first applicant sought leave to bring judicial review proceedings in respect of MHPA’s continuing refusal to disclose documents related to the risk assessments it claimed to have conducted with regard to the LNG terminals.
On 4 July 2007, permission was refused following an oral hearing. As regards information falling within EIR 2004, Beatson J referred to the existence of an alternative remedy, namely an application to the Information Commissioner and the Information Tribunal. To allow judicial review, he said, would be duplication and would risk circumventing the system set out in the regulations.
In respect of information not falling within those regulations, Beatson J concluded that the applicant had failed to demonstrate an arguable case that there was an obligation to provide the information arising from a positive duty on the authority under Articles 2 and 8. He noted that the MHPA had advised the decision-making authorities that the risks were so low as not to warrant the refusal of planning permission or hazardous substances consent and that the Court of Appeal had, in the earlier judicial review proceedings, found that the authorities were entitled to accept that advice. Accordingly, the activities in question could not be considered “dangerous” such as to give rise to an obligation under the Convention to allow the public access to the information. He further considered that insofar as the applicant sought disclosure of assessments required for the previous judicial review proceedings, the claim was an “improper use of judicial review”. He noted that the matter was before Sullivan J in the original judicial review proceedings and found that had it been arguable that the applicant was entitled to this information, then the matter would have been dealt with then. He concluded that the application was either out of time or an attempt to reopen a matter which had already been decided.
The applicant sought leave to appeal the ruling. In a judgment dated 30 November 2007, the Court of Appeal dismissed the application. Toulson LJ indicated that while he did not consider that Beatson J had erred as regards the applicability of Articles 2 and 8, he would have allowed the applicant to argue the matter before the full court. However, he concluded (at paragraph 11):
“As it seems to me, the plain and obvious purpose [of the present proceedings] is to endeavour to elicit material which could have been, and indeed to a point was, asked for in the earlier proceedings, in order to present continuing argument that those previous consents ought not to have been granted. This is exactly the sort of endeavour which the court ought not to support. This appellant has had the opportunity to seek these documents at the time of the earlier proceedings, and it seems to me that the conclusion arrived at by Beatson J was entirely apposite: that this is indeed a reformulation of what was being sought in those proceedings. Those proceedings have already occupied the time of the Administrative Court for a lengthy leave hearing, followed by two considerations by the Court of Appeal and it would be wholly wrong that permission should now be granted to bring judicial review in the present form.”
B. Industry reports
SIGTTO (The Society of International Gas Tanker and Terminal Operators Limited) is a non profit making company, formed to promote high operating standards and best practices in gas tankers and terminals throughout the world. It provides technical advice and support to its members and represents their collective interests in technical and operational matters. It has published several guidance papers on matters related to LNG.
1. SIGTTO Information Paper No. 14 Site Selection and Design for LNG Ports and Jetties (1997)
The paper emphasises in its introduction that the level of marine risk is determined by the position chosen for the LNG terminal. As to jetty location, section 6 of the paper advises that they be placed “in sheltered locations remote from other port users”. Section 7 highlights the need for ignition controls extending around and beyond the immediate terminal area.
2. SITTCO LNG Operations in Port Areas: Essential best practices for the Industry (2003, Witherbys Publishing)
Section 1.1 notes the following:
“... the hazards arising from [LNG], should it escape to atmosphere are: the eventual prospect of a gas cloud, many times the volume associated LNG with an accompanying risk of fire or explosion ...
...
Release of LNG into the atmosphere of any area having within it low energy ignition agents carries with it a risk of fire or explosion. Such conditions will prevail in any port area where ignition agents are not effectively prohibited, as they are in installations specifically constructed for the handling of hydrocarbons.”
Section 1.3 highlights the risks occasioned upon collision between vessels:
“... it is clear, their inherently robust constructions notwithstanding, that LNG tankers are vulnerable to penetration by collisions with heavy displacement ships at all but the most moderate of speeds. Such incidents ought to be treated as credible within any port where heavy displacement ships share an operating environment with LNG tankers.”
Section 1.4 of the publication observes:
“Since there has never been a catastrophic failure of an LNG tanker’s hull and containment system there are no incident data upon which to construct scenarios following the release of large quantities of LNG into the atmosphere. However the behaviour of released LNG has been carefully studied in the light of certain important experiments involving controlled releases ...
After a release of liquefied gas a cloud will develop and travel horizontally from the spill point under the influence of prevailing winds. The cloud will contain the gaseous components of the LNG ... and air. Mixing with air the cloud will develop flammable properties [through] much of its volume ...
As it travels away from the spill point the cloud will warm, becoming progressively less dense. As it warms to ambient temperature it will become buoyant in air and disperse vertically. Pure methane is lighter than air ... but it is the temperature of the entire cloud, not just its gaseous component, [that] determines its behaviour. Other components too must warm to higher temperatures before vertical dispersal ensues. Meanwhile the cloud will continue to disperse in a generally horizontal direction, developing a shape similar to an elongated plume.
In practice the geometry and behaviour of a gas cloud will be determined by the specific circumstances of the release. The single biggest determinant will always be the volume of LNG released. Thereafter the shape and behaviour of the cloud will be determined by the rate at which liquid gas is released to the atmosphere. Dispersal in specific incidences will also be greatly influenced by wind conditions, atmospheric stability, ambient temperature and relative humidity. The topography and surface roughness of the terrain over which a cloud moves will greatly influence dispersal characteristics ...
When the gas cloud is no longer fed by fresh volumes of gas it will disperse in the atmosphere until its entire volume is diluted below the lower explosive limit for methane. Its flammable properties will then be extinguished and no further risk will remain.”
On assessing the cloud behaviour in a specific situation, section 1.4 provides the following guidance:
“... First there must be established a realistic estimate of the maximum credible release, or spill. Second, the released gas cloud is modelled using realistic values for air temperature, wind forces and atmospheric stability at the location in question. From such analysis it is possible to predict with credible accuracy the likely scenario following a worst probable gas release into the atmosphere.”
Section 1.5 observes:
“There has never been an incident involving the penetration or catastrophic failure of an LNG tanker’s containment system – indeed, the safety record for this class of ship is exemplary. Nevertheless, this safety record notwithstanding, the risk profile of LNG tankers presents a very serious residual hazard in port areas if the vital structure of the tanker is penetrated.”
Section 2 concludes:
“Risk exposures entailed in an LNG port project should therefore be analysed by a Quantitative Risk Assessment (QRA) study. Such a study must involve the operations at the terminal and the transit of tankers through the port.
Risk assessments do not of themselves improve safety, but they should be regarded as decision tools in order to satisfy company safety policy and the Authorities that risk is acceptable.”
The section specifies that quantitative risk assessment results should yield, as a minimum, a high confidence in there being a low risk of the tanker failing to maintain track during the transit; a high confidence of the tanker not encountering other vessels in situations that present risks of collision; no credible scenario leading to a high energy grounding that holds the prospect of the inner hull being penetrated; and no credible scenario that might lead to the tanker encountering a heavy displacement vessel in situations where the resulting collision impact could be sufficient to penetrate the transiting tanker’s inner hull.
Section 4 clarifies that:
“The most important single determinant of risk attached to LNG operations in port areas is the selection of the site for the marine terminal – the location of the tanker berth(s).”
It provides that whatever the prevailing circumstances, no terminal should be sited in a position where it may be approached by heavy displacement ships which have an inherent capability to penetrate the hull of an LNG tanker. It adds that all port traffic must be excluded from the environs of an LNG marine terminal, having regard to the assessment made of the maximum credible spill and likely dispersal of the gas.
C. Relevant domestic law and practice
1. Public access to environmental information
Public access to environmental information is set out in the Environmental Information Regulations 2004. Regulation 5 establishes a duty to make available environmental information on request:
“ (1) Subject to paragraph (3) and in accordance with paragraphs (2), (4), (5) and (6) and the remaining provisions of this Part and Part 3 of these Regulations, a public authority that holds environmental information shall make it available on request.
(2) Information shall be made available under paragraph (1) as soon as possible and no later than 20 working days after the date of receipt of the request.
(3) To the extent that the information requested includes personal data of which the applicant is the data subject, paragraph (1) shall not apply to those personal data.
(4) For the purposes of paragraph (1), where the information made available is compiled by or on behalf of the public authority it shall be up to date, accurate and comparable, so far as the public authority reasonably believes.
(5) Where a public authority makes available information in paragraph (b) of the definition of environmental information, and the applicant so requests, the public authority shall, insofar as it is able to do so, either inform the applicant of the place where information, if available, can be found on the measurement procedures, including methods of analysis, sampling and pre-treatment of samples, used in compiling the information, or refer the applicant to the standardised procedure used.
(6) Any enactment or rule of law that would prevent the disclosure of information in accordance with these Regulations shall not apply.”
Regulation 12 provides for exceptions to the duty to disclose environmental information:
“(1) Subject to paragraphs (2), (3) and (9), a public authority may refuse to disclose environmental information requested if –
(a) an exception to disclosure applies under paragraphs (4) or (5); and
(b) in all circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information.
(2) A public authority shall apply a presumption in favour of disclosure.
...
(4) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that –
(a) it does not hold that information when an applicant’s request is received;
(b) the request for information is manifestly unreasonable;
(c) the request for information is formulated in too general a manner and the public authority has complied with regulation 9;
(d) the request relates to material which is still in course of completion, to unfinished documents or to incomplete data; or
(e) the request involves the disclosure of internal communications.
(5) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that its disclosure would adversely affect –
(a) international relations, defence, national security or public safety;
(b) the course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an inquiry of a criminal or disciplinary nature;
(c) intellectual property rights;
(d) the confidentiality of the proceedings of that or any other public authority where such confidentiality is provided by law;
(e) the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest;
(f) the interests of the person who provided the information where that person –
(i) was not under, and could not have been put under, any legal
obligation to supply it to that or any other public authority;
(ii) did not supply it in circumstances such that that or any other public
authority is entitled apart from the Regulations to disclose it; and
(iii) has not consented to its disclosure; or
(g) the protection of the environment to which the information relates.
...
(9) To the extent that the environmental information to be disclosed relates to information on emissions, a public authority shall not be entitled to refuse to disclose that information under an exception referred to in paragraphs (5)(d) to (g).
...
(11) Nothing in these Regulations shall authorise a refusal to make available any environmental information contained in or otherwise held with other information which is withheld by virtue of these Regulations unless it is not reasonably capable of being separated from the other information for the purpose of making available that information.”
2. Time limits for bringing judicial review proceedings
Section 31 of the Supreme Court Act 1981 provides that the High Court may refuse an application for judicial review where there has been undue delay. The relevant subsections provide as follows:
“(6) Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant –
(a) leave for the making of the application ; or
(b) any relief sought on the application,
if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.
(7) Subsection (6) is without prejudice to any enactment or rule of court which has the effect of limiting the time within which an application for judicial review may be made.”
Rule 54.5 of the CPR sets out specific time limits for filing a claim form in judicial review proceedings:
“(1) The claim form must be filed –
(b) in any event not later than 3 months after the grounds to make the claim first arose.
(2) The time limit in this rule may not be extended by agreement between the parties.
(3) This rule does not apply when any other enactment specifies a shorter time limit for making the claim for judicial review.”
In Caswell v. Dairy Produce Quota Tribunal for England and Wales [1990] 2 AC 738, the House of Lords held that, where the application for permission to seek judicial review was not made in compliance with the Civil Procedure Rules, the delay was to be regarded as “undue delay” within section 31(6) of the Supreme Court Act 1981.
3. Re-opening of final appeals under Part 52.17 of the Civil Procedure Rules
CPR Part 52.17 permits the re-opening of final appeals in the Court of Appeal in exceptional circumstances. It provides as follows:
“(1) The Court of Appeal or the High Court will not reopen a final determination of any appeal unless –
(a) it is necessary to do so in order to avoid real injustice;
(b) the circumstances are exceptional and make it appropriate to reopen the appeal; and
(c) there is no alternative effective remedy.
(2) ... ‘appeal’ includes an application for permission to appeal.”
There is no further appeal from the decision of the judge on the application for permission.
COMPLAINTS
The applicants complain under Articles 2 and 8 of the Convention that the United Kingdom failed in its duties relating to the regulation of hazardous industrial activities. They also complain under these articles about the lack of information disclosed regarding the risks associated with the siting of the LNG terminals in Milford Haven.
The applicants further complain under Article 6 § 1 of the Convention about: (i) the domestic courts’ failure to make a disclosure order in the judicial review proceedings concerning the grant of planning permission and hazardous substances consent; (ii) the Court of Appeal’s failure to hear arguments relating to an application for a protective costs order; and (iii) the Court of Appeal panel’s failure to recuse itself in the proceedings on whether to reopen its judgment in light of an error of fact.
The applicants complain under Article 13 of the Convention that the implementation by the Court of Appeal of the procedure under Part 52.17 of the Civil Procedure Rules denied them an effective remedy in respect of their Convention complaints.
QUESTIONS TO THE PARTIES
they have complied with their duties in relation to the regulation of hazardous industrial activities and, in particular, have properly assessed the risk and consequences of a collision of LNG vessels or other escape of LNG from a vessel in Milford Haven harbour or while berthed at the jetty?
relevant information on the nature and extent of the risk posed by the hazardous industrial activities has been disclosed to the public in accordance with the principles set out by the Court (see, inter alia, Öneryıldız v. Turkey [GC], no. 48939/99, ECHR 2004 XII; Guerra and Others v. Italy, 19 February 1998, Reports of Judgments and Decisions 1998 I; and Giacomelli v. Italy, no. 59909/00, ECHR 2006 ...)?