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HARDY AND MAILE v. THE UNITED KINGDOM - 31965/07 [2012] ECHR 261 (14 February 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/261.html
Cite as:
[2012] ECHR 261,
(2012) 55 EHRR 28,
55 EHRR 28
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FOURTH
SECTION
CASE OF HARDY AND MAILE v. THE UNITED KINGDOM
(Application
no. 31965/07)
JUDGMENT
STRASBOURG
14
February 2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Hardy and Maile v.
the United Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech Garlicki, President,
David
Thór Björgvinsson,
Nicolas Bratza,
George
Nicolaou,
Ledi Bianku,
Zdravka
Kalaydjieva,
Vincent A. De Gaetano, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 24 January 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 31965/07)
against the United Kingdom of Great Britain and Northern Ireland
lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by two British
nationals, Ms Alison Hardy and Mr Rodney Maile (“the
applicants”), on 24 July 2007.
The
applicants, one of whom (Ms Hardy) had been granted legal aid, were
represented by Mr R. Buxton, a lawyer practising in Cambridge. The
United Kingdom Government (“the Government”) were
represented by their Agent, Mr J. Grainger, of the Foreign and
Commonwealth Office.
3. The
applicants alleged, in particular, that the respondent State had
failed in its duties under Articles 2 and 8 of the Convention
regarding the regulation of hazardous activities and the
dissemination of relevant information.
On
23 October 2009 the Vice-President
of the Section decided to give notice of the application to
the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants were born in 1946 and 1935
respectively and live in Milford Haven.
A. The background facts
The
present application concerns the construction and operation of two
liquefied natural gas (“LNG”) terminals on sites at
Milford Haven harbour (“The Haven”).
The applicants were members of an informal group of
residents of Milford Haven opposed to the LNG terminals, called “Safe
Haven”. Safe Haven was formed in May 2004 and had approximately
fifteen members who met regularly. The applicant became involved in
Safe Haven from August to October 2004.
1. Brief outline of the relevant factual and legal
framework for the grant of planning permission and hazardous
substances consent
Construction and operation of the LNG terminals at
Milford Haven requires, inter alia, planning permission
granted by the relevant local planning authority; hazardous
substances consent granted by the Hazardous Substances Authority;
compliance with the Control of Major Accident Hazards (“COMAH”)
Regulations; compliance with international certification requirements
for vessels; and compliance with byelaws, general directions and the
Port Marine Safety Code. A brief outline of these requirements is set
out below. For further details of the relevant domestic law see
paragraphs 129-170 below.
(a) Planning permission
Planning permission was required for the construction
of the LNG terminals, including the jetties and piers, and the use of
the land for that purpose. The power of the local planning
authorities to grant planning permission for development was subject
to Regulations which prohibited the grant of planning permission
unless relevant environmental information had been taken into
account.
(b) Hazardous substances consent
The operation of the LNG terminals also required
consent from the appropriate hazardous substances authority. The key
role of the hazardous substances authority was to control the
presence of hazardous substances on, over or under land.
The Health and Safety Executive (“HSE”)
was a statutory consultee in respect of the applications made for
hazardous substances consent. This meant that the hazardous
substances authority was obliged to consult the HSE and to take
account of its representations, but was not bound to follow them. The
role of the HSE was to provide advice on the nature and severity of
the risks presented by major hazards to people in surrounding areas
so that they could be balanced against other material planning
considerations.
(c) COMAH Regulations
The LNG terminals remain subject to COMAH Regulations,
which apply mainly to the chemical industry but also to some storage
activities, explosives and nuclear sites and other industries where
threshold quantities of dangerous substances are kept or used. The
purpose of the COMAH Regulations is to reduce the risk of major
accidents to a level that is as low as reasonably practicable by
imposing on-site safety control.
The HSE and the Environment Agency Wales (“EA”)
monitor compliance with the COMAH Regulations of the LNG operations
at Milford Haven.
(d) International certification for
vessels
The marine vessels used to transport LNG to Milford
Haven are subject to certification for compliance with international
standards. Compliance with those standards is monitored by the
Maritime and Coastguard Agency (“MCA”) for England and
Wales, an agency of the Department of Transport.
(e) Milford Haven Port Authority
Milford Haven Port Authority (“MHPA”) has
a statutory duty to provide, maintain, operate and improve port and
harbour facilities in, or in the vicinity of, the haven. It has the
power to make byelaws to regulate the use of the haven and to issue
directions for the purpose of promoting or securing conditions
conducive to the ease, convenience or safety of navigation in the
haven and its approaches.
The Port Marine Safety Code (“the Code”),
with which MHPA complies, was issued by the Department of the
Environment, Transport and the Regions in March 2000, and has since
been updated. It introduces a national standard for every aspect of
port marine safety. It is supplemented by a Guide to Good Practice on
Port Management Operations dealing with risk assessment and safety
management.
2. The Dragon site
(a) Application for planning permission
for the site
In 2002 Petroplus, an oil refiner, applied to
Pembrokeshire County Council, the relevant local authority, for
planning permission to develop an LNG terminal on a site at Milford
Haven harbour (“the Dragon terminal” or “the Dragon
site”). The application was supported by an Environmental
Statement. The planning application was duly advertised and
publicised by Pembrokeshire County Council and MHPA and the HSE were
consulted. Any member of the public who wished to do so was able to
make comments regarding the proposed development.
Chapter 15 of the Environmental Statement, dated
September 2002, dealt with operational safety. It noted that marine
and navigational safety for the delivery of LNG by marine tankers to
the jetty was recognised as an area of concern. Petroplus had
therefore commissioned a marine risk assessment and a simulation of
the manoeuvring and berthing of a large LNG tanker within the
waterway, in conjunction with MHPA pilots.
The Statement identified the main risks arising in
respect of the handling of LNG as fire and explosion. It noted that
guidelines for assessment and tolerability of risks existed but that
there was no definitive or prescriptive methodology in the United
Kingdom. While this could lead to differences in the levels of
tolerable risk in the United Kingdom compared to other countries,
overall levels of risk tolerability were broadly similar across
European Union and other safety conscious countries. Work which had
been carried out in respect of risk assessment and evaluation
included a Hazard Identification to identify major hazards; a
quantitative risk assessment (“QRA”) in respect of major
hazards identified; and a calculation of levels of individual and
societal risk.
The Statement also considered environmental risk from
potential incidents. As regards a possible spillage to surface water
it noted:
“... complete evaporation of the LNG would take
place. As LNG and water are immiscible no residue would remain to
cause ongoing pollution. The adverse phenomena would be a cooling of
the water body local to the spillage as the LNG absorbs heat to
evaporate. Given the large volume of water within the Milford Haven
waterway it is most unlikely that this cooling would be of
significance.”
In a section on “Marine Hazards and Navigation”,
the Statement noted:
“Petroplus is involving the MHPA in planning of
the marine aspects of LNG terminal to ensure that its proposals will
meet the Authority’s requirements for safe navigation and
prevention of pollution. The involvement includes:
Consultation
in the development of a marine risk assessment for the development;
Commissioning
of real time simulation for the movement of LNG vessels in the Haven
Waterway;
Arranging
for MHPA pilots to witness the operation of LNG vessels at a
European terminal; and
Further
consultation during the design, construction and operational stages
of the project.”
In the context of the real time ship simulation
exercise conducted, the Statement clarified that MHPA pilots had been
able to undertake trial navigation of an LNG vessel, including
turning and berthing activities, under a variety of wind, wave and
tidal conditions. It concluded that the output from the simulations
had confirmed that the large LNG tankers could be safely operated in
the Milford Haven waterway under certain restrictions regarding wind
conditions set out in the Statement. The MHPA pilots who participated
in the simulation exercise indicated that they were satisfied with
the simulation and made recommendations as to maximum wind speed.
The Statement further noted that a risk assessment had
been carried out on the effect of increased traffic in the haven from
the introduction of LNG vessels. The findings were set out in some
detail in the Statement, which explained that an average of 10,700
vessel movement took place in the haven each year and that an
increase of between 100 and 240 movements per year could be expected
once the LNG terminal was operational. The Statement concluded that
the proposed operations would have little significant impact on the
marine traffic environment of the haven.
As to mitigation measures for marine aspects, the
Statement noted:
“As the MHPA is responsible for safe marine
operations in the Haven Waterway, mitigating measures would include:
Continuing
consultation of MHPA during the design, construction and operational
stages of the project;
Implementing
further simulation exercises to assess additional aspects, such as
strong wind conditions in the approach channel, emergency
situations, failures and aborts;
Implementing
simulation training for all MHPA pilots who will handle LNG vessels
prior to commencement of vessel operations;
Application
of conservative operational requirements, under specified wind
conditions initially; with modification when the pilots become more
experiences with the LNG vessels;
Installation
of wind monitoring facilities on the Petroplus berth.”
In its conclusions and management recommendations, the
Statement summarised the impact of the proposed development on a wide
variety of aspects including ecology and nature conservation,
transport, social and economic issues, tourism and recreation, air
quality and noise. On the safety aspects of the development, the
Statement concluded that the level of risk presented by the LNG
terminal was tolerable and observed that the operation of the
terminal would be subject to ongoing inspection and audit by the HSE.
On 21 October 2002 MHPA submitted its views to
Pembrokeshire County Council. It 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 with suitable modifications. This assessment had
included periods using the MARIN simulator, based in the Netherlands,
where a variety of different situations including different ways of
approaching the berth, various sizes of ships and different weather
and tidal conditions were all able to be trialled. The conclusion was
that the identified and agreed means of navigation and operation
“more than adequately” contained the risks 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.
(b) Application for planning permission
for extension
On 25 April 2003, an application was made by Petroplus
to extend the LNG terminal at the Dragon site. Again, Pembrokeshire
County Council advertised and publicised the planning application and
consulted various statutory consultees, including the HSE and MHPA.
A further Environmental Statement, dated April 2003,
was prepared to consider the implications of the extension. It
appears to have been a revised version of the original Statement. In
the section on “operational safety”, the report addressed
the potential increase in risk to safety which would arise from the
increase in the stored quantity and throughput of LNG at the site. It
noted that a revised safety report would be required under the COMAH
Regulations to examine the hazards, risks and potential consequences
of a major accident, to complement the report which had been accepted
by the HSE for the existing installation. It further noted that a new
risk assessment had been undertaken to consider the cumulative risk
from the approved scheme together with the additional tank and
regasification facilities, as well as ongoing operations.
The Statement noted that current movements per year at
the Petroplus berths were in the region of 2,000, and that there were
around 1,450 ferry movements. When the increase in movements was
considered in the context of these statistics as well as the
statistics for movements in the haven as a whole, it was clear that
the increased traffic would have little significant impact on the
marine traffic of the waterway.
The Statement concluded that the risks posed by the
extended LNG terminal remained acceptable, observing that the
expansion of the terminal would be subject to further scrutiny by the
HSE under the COMAH Regulations.
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.”
The application, together with the Environmental
Statement and responses to the consultation, was considered at
Pembrokeshire County Council’s Planning and Rights of Way
Committee meeting on 21 October 2003. The minutes noted that the 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.
On 11 February 2004 Petroplus made a further planning
application, accompanied by an Environmental Statement, dated January
2004, for amendments to the approved LNG terminal. The application
was again publicised and was the subject of consultation.
On 10 September 2004 planning permission was granted
for an extension at the Dragon site and for the amended scheme.
(c) Application for hazardous substances
consent
In the meantime, on 1 March 2004, Petroplus applied
for hazardous substances consent for the storage of LNG.
Pembrokeshire County Council consulted the HSE and MHPA and
publicised the planning application.
A report dated 12 October 2004 by the Director of
Development of Pembrokeshire County Council recorded that strong
objections to the application 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 noted 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.
The report continued:
“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.”
MHPA’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.
3. The South Hook site
(a) Application for planning permission
for the site
On 28 April 2003 Qatar Petroleum and ExxonMobil
applied for planning permission to develop an LNG terminal 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. In the same month,
the operators of the site opened a public exhibition and visitors’
centre in the town centre of Milford Haven regarding the proposed
development. The HSE and MHPA were, among others, consulted on the
application. It was also advertised and publicised to allow members
of the public to submit any views on the proposed development.
Qatar Petroleum and ExxonMobil instructed an
Environmental Statement in respect of the proposed development. A
draft dated April 2003 has been provided to the Court. It noted that
the LNG industry had an excellent safety record and that the LNG
transport and distribution industry in the United Kingdom had not
experienced a major accident in a history of nearly forty years. A
qualified risk assessment was also commissioned by the developers
which identified potential hazards in respect of the LNG terminal.
Chapter 14 of the Statement dealt with major
hazards. It was noted at the outset that the discussion of the
hazards was general, but that a detailed and specific safety report
was being prepared.
The Statement summarised the basic obligations arising
under the COMAH Regulations, noting:
“Operators of sites that come under COMAH have a
general duty to take all measures necessary to prevent major
accidents and limit their consequences to persons and the environment
... These sites are classified primarily according to inventory of
hazardous substances, with approximately 750 being classified as
‘lower tier’, where operators must prepare a Major
Accident Prevention Policy (MAPP). The remaining 350 sites, with
larger inventories of dangerous substances, are classified as ‘top
tier’ and are subject to additional requirements. These include
submitting a Safety Report to the CA [competent authority – in
this case the HSE and the EA], preparing and testing a site emergency
plan, and providing information to local authorities to enable
off-site emergency plans to be developed. The proposed installation
will be top tier.”
As to assessment of risks, the Statement explained:
“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. The close contact between the project and local
expertise was recently manifested in a formal, two-day marine hazard
identification exercise. Attendees included representatives of the
Port Authority, pilots and tug masters, as well as master mariners
from the project. Potential mitigation measures were identified in
this exercise and are being evaluated for incorporation into the
design ...”
It summarised the identified hazards. Most pertained
to the on-site activities but two hazards were identified which would
have an impact beyond the site itself. The first was the possibility
of a vapour cloud with delayed ignition. Safeguards proposed related
to the design of the containment tanks, an emergency shut down system
to limit release and gas detention to identify leaks. The second was
a ship collision at the jetty. Safeguards included emergency release
coupling to allow the ship to depart quickly, an emergency shut down
system and a firefighting system.
On 15 May 2003 MHPA responded to the consultation in
support of the proposed development, in terms similar to their letter
of 21 October 2002 in respect of the Dragon site (see paragraphs
26-27 above).
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.
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.
(b) Application for hazardous substances
consent
In the meantime, on 21 January 2003, Qatar Petroleum
and ExxonMobil applied to Pembrokeshire County Council and
Pembrokeshire Coast National Park Authority for hazardous substances
consent for the storage and gasification of LNG at the South Hook
site. The application was publicised and the HSE and MHPA were
consulted.
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 ...”
On 10 February 2004, the Chief Executive of MHPA wrote
to Pembrokeshire Coast National Park Authority with responses to
questions asked. He observed that it was necessary to ensure that
large LNG ships were managed in such a way that they were safely and
effectively accommodated. He indicated that MHPA’s approach to
accommodating the LNG vessels was by detailed risk assessment, taking
into account the characteristics of the ships and the terminal to be
used and making use of simulators and their 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 would 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; and the
timing of any movement related to tidal conditions. He explained that
MHPA did not intend to close the port while an LNG ship entered or
left as it was not necessary and did not improve the situation. He
continued:
“... 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 National Park
Authority Planning Committee considered the application for hazardous
substances consent. Concerns were raised at the meeting regarding a
perceived absence of any QRA 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 ...”
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”.
4. The Health and Safety Executive’s risk
assessment of the two projects
As set out above, the HSE played an important role in
the planning and hazardous substances consent process and carried out
its own assessments of the projects. In this context, it 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. However, it ceased work on this aspect of
risk before it was concluded as marine risks were found to fall
outside its ambit.
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.”
5. Milford Haven Port Authority’s risk assessment
of the two projects
Like the HSE, it can be seen from the above summary of
the two projects that MHPA also participated in the planning process
in respect of the LNG terminals.
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 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 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.”
On 20 December 2004 the Chief Executive of MHPA
responded to a letter from a Member of Parliament regarding the LNG
terminals as follows:
“As to the perception that we as a Port Authority
are ‘reluctant’ to publish risk assessments ... this
really flows from a lack of understanding of the role of the Port
Authority. Unlike applications for the shore terminals where the
process that is undertaken is very clearly defined and results on a
go/no-go decision, our role as a Port Authority is different. We do
not have the ability to deny access to any ship (other than in very
specific and individual circumstances) given that the UK operates
what can be loosely termed an ‘open ports policy’. What
we do have is a responsibility to ensure that any shipping movements
are managed in a safe and efficient manner. To this end we have
undertaken, and continue to undertake, a wide range of risk
assessments to determine the way in which this safe and effective
management will be carried out. There is therefore no one single
document or set of documents that clearly define the situation in
which a ‘go/no-go decision’ can be determined, but rather
a continuing process of scenario setting, risk assessment, trial,
refining scenarios and identification of mitigation and prevention
measures in which a wide number of variables are taken into account –
some of which are still being developed as decisions as to the type
of ships and their characteristics are being defined by the terminal
operators and their teams.”
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 a fire or explosion on board a ship large enough
potentially to 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 ... 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 MHPA asking what
risk assessments it had undertaken in relation to plans to import LNG
to the South Hook and Waterson sites, with specific regard to the
marine-based risk. In an email response dated 15 June 2005, the Chief
Executive of 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 paragraphs 80-94
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 [the developers]
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 set out, in paragraph 28, some of the
specific risk assessments undertaken, including:
(a) 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;
(b) 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;
(c) 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;
(d) a March 2003 navigational risk assessment by Marico
Marine;
(e) MARIN report of 19 May 2003 on fast time simulations
for large LNG ships;
(f) 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;
(g) 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;
(h) 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);
(i) a November 2003 report commissioned 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;
(j) 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.
The summary grounds further indicated that:
“6. SIGTTO [see paragraph 160
below] has worked with [MHPA] and confirmed to the best of their
knowledge that [MHPA] and the terminal operators have done precisely
what they would expect to be done in undertaking risk assessments and
planning for LNG shipping.”
This was confirmed by SIGTTO in a letter dated 14
November 2006.
B. The first judicial review proceedings (planning
permission and hazardous substances consent)
Pursuant to applicable civil procedure rules, a claim
for judicial review of a decision must be filed promptly and in any
event within three months of the decision under challenge (see
paragraphs 179-180
below).
On 4 March 2005 the applicants filed an application
for leave to apply for judicial review in respect of the grants of
planning permission 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 risks 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 3 May 2005 the High Court ordered that an oral
hearing be held to focus primarily on the issue of the delay in
lodging the claim for judicial review, the applicants’ reasons
for it and the practical implications of the delay for the operators.
A two-day oral hearing subsequently took place.
On 26 July 2005 leave to apply for judicial review was
refused on the grounds that the challenge was not made sufficiently
promptly; that there was undue delay; and that quashing the planning
and hazardous substances decisions would substantially prejudice the
rights of ExxonMobil and Petroplus, would 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.
As to the reason for the delay in applying for
judicial review, Mr Justice Sullivan rejected the applicants’
contention that the delay resulted from a “labyrinthine
decision-making process”. He accepted that there was a mass of
material, but considered that this was because the claim form had
adopted a “scatter gun” approach and sought permission to
challenge not merely the decision on 7 December 2004 in respect of
the Dragon site, but also the earlier decisions in respect of that
site going back some 18 months, and the decisions going back some 12
months in respect of the South Hook site. He noted that, in so far 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 relation to both sites, relevant planning permissions had been
granted more than three months before the judicial review proceedings
were brought. Sullivan J was satisfied that the applicants had known
of the relevant decisions they wished to challenge by August to
October 2004.
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 (“CPR”),
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:
“81. Although much of the claimants’
skeleton argument before me was devoted to the merits of the claim, I
have not heard full argument on the substantive issues which are
vigorously contested by the defendants and the interested parties.
They deny that there was any misunderstanding as to the
characteristics of LNG in the event of an escape ....
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 judge commented:
“83. I do not doubt that the issues
raised in the claim are of considerable local importance in Milford
Haven and the surrounding area. Equally, I do not doubt the
genuineness of the claimants’ concerns and that they fairly
represent Safe Haven’s concerns. But it is also fair to say
that Safe Haven’s views are very far from being representative
of the views expressed by the very wide range of consultees,
including such bodies as the Town Council and relevant community
councils ...”
The applicants sought permission to appeal the refusal
of leave.
The judge ordered that an oral hearing be held to
consider whether leave to appeal should be granted. A one-day hearing
took place on 20 January 2006.
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 (see paragraph 72
above) 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 Lord Justice Keene, with whom the
other members of the Court of Appeal agreed, delivered the court’s
judgment. He considered the applicants’ arguments under Article
2 of the Convention and explained:
“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 although Sullivan J had
not heard full argument on the substantive issues, he had been alive
to the Article 2 and public safety issues which arose in the case.
Keene LJ observed that:
“27. ... 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 essence of the applicants’
case was:
“... that the decision-makers did not adequately
consider what are called ‘marine risks’, namely the risks
to those in the Milford Haven area from an escape of LNG from a ship.
In particular, concern is expressed about the risk of the formation,
in the event of such an escape, of a flammable gas cloud. It is
stressed that a population of some 20,000 lies within a radius of
just over 4 miles of the South Hook and Dragon sites ...”
However, 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 MHPA
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 that there was a lacuna because of the absence of any assessment
of the consequences for the local population of a vapour cloud, Keene
LJ concluded:
“32. I do not accept that the evidence
before us, including the evidence submitted on behalf of the
applicants since the oral hearing, demonstrates any such arguable
lacuna. 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.
33. 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, Keene LJ 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” (see paragraph 93
above). 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 applicants’ solicitor made
an application to the Court of Appeal under the Civil Procedure Rules
Part 52.17 to have the judgment of 17 March 2006 reopened (see
paragraphs 181-182 below).
The application was made on the basis, inter alia, of an
obvious factual error. 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 Treasury Solicitors on behalf of the
HSE advised all parties involved in the proceedings as well as the
Court of Appeal of a mistake in the HSE’s Summary Grounds. 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 that:
“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 reopened 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 Court of Appeal
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
Court of Appeal. It heard and refused an application that its members
recuse themselves. Counsel for the applicants accepted that there was
no appearance of bias as a result of the narrow question whether the
application for permission to appeal should be opened on the ground
that the court was misled by the HSE’s summary of objections.
However, he argued that the court appeared to be acting in a partisan
way in circumstances in which it was prepared to reopen the question
following receipt of a letter from the Treasury Solicitor confirming
the true position, whereas it had not been prepared to reopen the
matter when the applicants’ solicitor had made representations
as to the issue of fact that was in dispute. Chadwick LJ, giving
judgment for the court, held:
“32. For my part, I can see no
appearance of bias arising from that fact. The positions changed in
an important respect when the letter from the Treasury Solicitor was
received. Until that date, there was an issue of fact: whether or not
the HSE had carried out the tests and risk assessments which they
said they had carried out. That issue of fact arose because the
applicants asserted that those risk assessments had not been carried
out. The HSE, in a summary of grounds – the truth of which was
verified by its solicitor – asserted that they had been. That
question of fact had been determined against the applicants in the
judgments which this court handed down on 17 March ... It is clear
that it was determined against the applicants in reliance on what was
said by the HSE in the summary grounds of objection.
33. In those circumstances, it would have
been inappropriate for the court to reopen that question of fact in
the period between making its judgments available in draft and the
formal handing down of those judgments. The purpose of making the
judgments available in draft is not to invite further submissions on
questions of fact which have already been decided, but to enable the
parties to draw attention to obvious errors of fact, such as a
mis-name or a mis-date. Nor would it have been a proper ground for
reopening the application for permission to appeal that the
claimants, through their solicitors, continued to assert that the
court had reached the wrong conclusion of fact on the evidence. But a
significant change occurred when it became clear that the court had
reached the conclusion of fact which it did as a result of being
misled by the HSE though the statement of objections.”
On 19 July 2006, the Court of Appeal refused
permission to reopen the application. Keene LJ 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 that:
“20. ... The significance of the error in terms of
public safety has to be seen in context.
21. 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.
22. 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 ...
23. 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’ solicitor 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.
Lord Justice Wall 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. He concluded that there was no perception or appearance of bias
in such a panel revisiting its earlier judgment in light of an
identified error of fact. Indeed, in his view, it was manifestly
sensible for it to do so.
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 in the judicial review proceedings had been granted.
C. The requests for information
On 23 December 2004 the applicants’ solicitor
wrote to MHPA requesting access to environmental information. On 5
January 2005 MHPA answered that it did not see any benefit in
responding.
On 7 January 2005, following the entry into force of
the Environmental Information Regulations 2004 (see paragraphs
171-177 below), the
applicants’ solicitor wrote again to MHPA. On 31 January 2005,
he wrote a third time explicitly under the Environmental Information
Regulations. On 1 February 2005, MHPA again answered that it did not
see any benefit in responding.
On 15 February 2005 the applicants’ solicitor
asked MHPA to reconsider its response in accordance with Regulation
11 of the Environmental Information Regulations (see paragraph 172
below). By letter dated 18 March 2005, MHPA responded that it
remained to be convinced that the Environmental Information
Regulations were 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 the
Environmental Information Regulations.
On 22 October 2005 a request was made to MHPA by
members of the public under the Freedom of Information Act 2000 (see
paragraph 178 below) 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 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 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 the applicants’ solicitor
made a further request to MHPA to see copies of risk assessments and
reports referred to in their summary grounds of defence lodged in the
judicial review proceedings (see paragraph 72
above). He 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 the Environmental Information Regulations. 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 (see paragraphs 173-177
below).
By letter of 26 June 2006 MHPA replied to the
applicants’ solicitor’s requests for disclosure under the
Environmental Information Regulations. 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 wrote
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 Environmental Information Regulations (see
paragraph 177 below).
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 could 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 the Environmental Information
Regulations, he noted that notwithstanding the presumption in favour
of disclosure, disclosure was not in the public interest in the
present case 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 12 of the Environmental Information Regulations (see
paragraphs 173-176 below).
He referred the matter to the Information Commissioner.
On 16 November 2006 the applicants’ solicitor
wrote to MHPA advising that in light of this Court’s findings
in Giacomelli v. Italy, no. 59909/00, ECHR 2006 XII,
it would commence judicial review proceedings regarding the failure
of MHPA to disclose documents unless the information was provided
within twelve days.
On 12 March 2007 the Information Commissioner issued
a Decision Notice under section 50(1) of the Freedom of Information
Act 2000 (see paragraph 178 below) 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 redacted copies of the Milne Report and relevant
extracts of the Qatargas report to the applicants.
D. The second judicial review proceedings (disclosure
of documents)
While the MHPA appeal against the Information
Commissioner’s ruling 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 the
Environmental Information Regulations, 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 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
(see paragraph 87 above), the claim was an
“improper use of judicial review”. He noted that the
matter had been before Sullivan J in the original judicial review
proceedings and found that had it been arguable that the applicants
were 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:
“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.”
E. The applicants’ expert report
The applicants submitted to the Court a copy of an
expert report by Dr R.A. Cox dated 7 September 2008 and prepared in
the context of a complaint to the European Commission in 2008. In his
report, Dr Cox reviewed the approach to and use of risk assessments
by MHPA. He considered each of the reports referred to in its summary
grounds (see paragraph 72 above), noting that
the majority of the reports were never released and that only two of
them, the ABS Consulting and Burgoyne Consultants reports, looked as
though they might be relevant to the kinds of risk assessments that
MHPA should have carried out.
The report concluded:
“For most LNG projects, the risks due to spills on
the sea are the highest risks involved in such projects, due to the
particular difficulties of controlling a spill of LNG on water, the
size of the ships’ cargo tanks, and the relatively high
likelihood of a marine accident compared to a similarly large spill
onshore.
...
In particular, the risks to the onshore population, due
to marine operations at Milford Haven, have fallen through a
regulatory gap. The EU Seveso-2 Directive does not extend to port
areas, and the authorities did not elect to use their other powers to
evaluate this risk to an equivalent standard ...”
The applicants also submitted a letter from Dr Cox
dated 29 April 2010, following a review of the Government’s
observations in the case. In his letter, Dr Cox noted:
“In short, the modular ‘risk assessment’
that MHPA rely on is a risk assessment only in the sense that it is a
compendium of separate pieces of work that all touch upon the risks
in some way but which have never been pulled together into a clear
and convincing analysis concerning the overall degree of risk which
the shore populations will have to bear, nor has it been shown that
the safeguards that are planned will be sufficient to offset the very
large potential consequences of a spill of LNG from a ship’s
cargo tanks into the Haven.”
Dr Cox went on to explain the gaps in the risk
assessment carried out, including the absence of any identification
of locations in the port where a ship might become grounded or be
involved in a collision; the failure to calculate the annual
frequency of such incidents; the failure to evaluate the chance of
immediate ignition of an LNG cloud in various scenarios; the failure
to calculate the rate of LNG vapour evolution and cloud size in
different conditions and the probability of scenarios where the LNG
vapour reached the shoreline; and the failure to compute the risk to
individuals on the shore.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Planning permission
1. Granting planning permission
Pursuant to section 57 of the Town and Country
Planning Act 1990 (“the Planning Act”), planning
permission is required for the carrying out of any development of
land.
The power of the relevant local planning authorities
to grant planning permission for development is subject to the
requirements of the Town and Country Planning (Environmental Impact
Assessment) (England and Wales) Regulations 1999 (“the EIA
Regulations”). Regulation 3 of the EIA Regulations prohibits
the grant of planning permission unless the planning authority has
taken into account the relevant environmental information required
when the project comprises environmental impact assessment
development.
The EIA Regulations give effect to Council Directive
85/337/EEC on the assessment of the effects of certain public and
private projects on the environment, as amended (“the EIA
Directive”). Article 1(1) of the EIA Directive provides that it
applies to the assessment of the environmental effects of public and
private projects likely to have significant effects on the
environment. Pursuant to Article 2(1), member States of the European
Union are required to adopt all measures necessary to ensure that,
before consent is given, projects likely to have significant effects
on the environment by virtue, inter alia, of their nature,
size or location are made subject to a requirement for development
consent and an assessment with regard to their effects. Article 3(1)
provides that the environmental impact assessment must identify,
describe and assess in an appropriate manner, in the light of each
individual case, the direct and indirect effects of a project on
human beings, fauna and flora; soil, water, air, climate and the
landscape; material assets and the cultural heritage; and the
interaction between all these factors.
Article 5(3) obliges the developer to furnish the
authorities with information including a description of the measures
envisaged in order to avoid, reduce and, if possible, remedy
significant adverse effects; the data required to identify and assess
the main effects which the project is likely to have on the
environment; and an outline of the main alternatives studied by the
developer and an indication of the main reasons for his choice,
taking into account the environmental effects.
Article 6 provides that member States shall ensure
that any request for development consent and any information gathered
pursuant to Article 5 are made available to the public within a
reasonable time, in order to give them the opportunity to express an
opinion before the decision on the request for development consent is
taken.
2. Discontinuing or revoking planning permission
Section 97 of the Planning Act allows a local
planning authority to revoke or modify any planning permission that
it has granted before the permitted operations have been completed,
as it considers expedient. Under section 100
of the Planning Act, the Welsh Ministers have the power to direct a
local planning authority to revoke or modify a planning permission if
they consider it expedient to do so. Section 107 provides that
compensation may be payable where planning permission
is revoked or modified under these sections.
Section 102 of the Planning Act empowers the local
planning authority to require that any use of the land be
discontinued, or to impose conditions on the use of land or require
that building works be altered, after the permitted operations have
taken place. Pursuant to section 104 of the Planning Act, the Welsh
Ministers have the power to make such an order if they consider it
expedient to do so. Section 115 provides that compensation
may be payable where planning permission is
discontinued or made subject to conditions under these sections.
Any decision whether to exercise these powers, either
by the local planning authority or by the Welsh Ministers, would in
principle be susceptible to judicial review.
In R (CPRE) v. London Borough of Hammersmith and
Fulham, leave to apply for judicial review in respect of a
decision not to revoke outline planning consent under section 97 of
the Planning Act was granted. The application was subsequently
dismissed on its merits but, in obiter dicta, the judge
observed that there was substance in the respondents’
submission that the application based on the refusal to revoke was
really a back-door attempt to try and achieve what the court had
already refused to do, namely to permit a challenge to the validity
of previous planning decisions in respect of which leave to apply for
judicial review had been refused on grounds of delay.
B. Hazardous substances consent
Section 4 of the Planning (Hazardous Substances) Act
1990 (“the Hazardous Substances Act”) provides that
consent is required for the presence of a hazardous substance on,
over or under land. As noted above, an application for consent must
be made to the appropriate hazardous substances authority. The
Planning (Hazardous Substances) Regulations 1992 specify which
substances are hazardous substances and the quantity of such
substances which require prior consent under the Hazardous Substances
Act.
Section 9 of the Hazardous Substances Act allows the
hazardous substances authority to impose such conditions on the grant
of hazardous substances consent as it thinks fit. It may impose
general conditions relating to the site and/or specific conditions
relating to each substance included in the consent.
Section 13 of the Act gives the hazardous substances
authority the power to vary or revoke a condition to which hazardous
substances consent was previously subject. It provides:
“(1) This section
applies to an application for hazardous substances consent without a
condition subject to which a previous hazardous substances consent
was granted.
(2) On such an application
the hazardous substances authority shall consider only the question
of the conditions subject to which hazardous substances consent
should be granted.
(3) If on such an application
the hazardous substances authority determine–
(a) that hazardous substances
consent should be granted subject to conditions differing from those
subject to which the previous consent was granted; or
(b) that it should be granted
unconditionally,
they shall grant hazardous substances consent
accordingly.
(4) If on such an application
the hazardous substances authority determine that hazardous
substances consent should be granted subject to the same conditions
as those subject to which the previous consent was granted, they
shall refuse the application.”
141. Section 14 allows the hazardous
substances authority to revoke a hazardous substances consent or
modify it to such extent as it considers expedient if it appears,
having regard to any material consideration, that it is expedient to
revoke or modify it.
142. Such decisions are, in principle,
susceptible to judicial review. The Government did not provide
details of any case in which judicial review of the exercise of these
powers has been sought.
C. COMAH Regulations
The LNG terminals are subject to the COMAH
Regulations as amended by the Control of Major Accident Hazards
(Amendment) Regulations 2005, which implemented Council Directive
96/82/EC of 9 December 1996 on the control of major-accident
hazards involving dangerous substances (“the Seveso II
Directive”), as amended.
Regulation 4 of the COMAH Regulations provides for a
duty on operators of installations to which the Regulations apply to
take all measures necessary to prevent major accidents and limit
their consequences to persons and the environment.
Pursuant to Regulation 5, every operator must without
delay and within a three-month deadline, prepare and thereafter keep
a document setting out its policy with respect to the prevention of
major accidents (“MAPP document”). The policy must be
designed to guarantee a high level of protection for persons and the
environment by appropriate means, structures and management systems.
It must be revised as required by any modification of the
installation, the processes carried out or the quantity of hazardous
substances present.
In the preparation of the MAPP document, a number of
principles must be taken into account. The document must be in
writing and should identify and evaluate major hazards, which should
include an assessment of their likelihood and severity. It should
address the organisation of personnel and their roles and
responsibilities; procedures and instructions for safe operation; and
procedures for monitoring, auditing and review. It should also
include details of planning for emergencies.
Regulation 7 requires the operator of an installation
to send to the competent authority a safety report, within a
reasonable time and prior to the start of construction of the
installation. The safety report must include, as a
minimum, information on the management system and on the organisation
of the establishment with a view to major accident prevention; a
presentation of the environment of the establishment, including a
description of the site, identification of installations and other
activities of the establishment which could present a major accident
hazard and a description of areas where a major accident could occur;
a description of the installation, including the main activities
which are important from the point of view of safety, sources of
major accident risks and conditions under which a major accident
could happen, together with a description of proposed preventive
measures; an identification and accidental risks analysis and
prevention methods, including a detailed description of the possible
major accident scenarios and their probability or the conditions
under which they occur including a summary of the events which may
play a role in triggering each of these scenarios, the causes being
internal or external to the installation and an assessment of the
extent and severity of the consequences of identified major
accidents; measures of protection and intervention to limit the
consequences of an accident, including a description of the equipment
installed in the plant to limit the consequences of major accidents,
the organisation of alert and intervention; and a description of
mobilisable resources, internal or external. The report must be
reviewed and revised at five-yearly intervals at least.
Regulation 9 requires operators to prepare an
emergency plan. Regulation 10 imposes a similar obligation on local
authorities. The emergency plans must provide, inter alia,
details of persons responsible for emergency procedures, the
foreseeable conditions which could be significant in
bringing about a major accident and how these conditions should be
controlled and arrangements for limiting risks and providing
warnings.
149. Regulation 14 addresses the provision
of information to the public. It provides:
“(1) The operator of an
establishment shall–
(a) ensure that persons who
are likely to be in an area referred to in paragraph (2) are
supplied, without their having to request it, with information on
safety measures at the establishment and on the requisite behaviour
in the event of a major accident at the establishment;
(b) make that information
available to the public.”
150. The area to which 14(1) refers is:
“an area notified to the operator
by the competent authority as being an area in which, in the opinion
of the competent authority, persons are liable to be affected by a
major accident occurring at the establishment.”
151. The minimum content of such
information includes confirmation that the establishment is subject
to the Regulations; an explanation in simple terms of the activities
undertaken at the establishment; general information relating to the
nature of the major accident hazards, including their potential
effects on the population and the environment; adequate information
on how the population concerned will be warned and kept informed in
the event of a major accident; adequate information on the actions
the population concerned should take, and on the behaviour they
should adopt, in the event of a major accident; and details of where
further relevant information can be obtained. The emergency plans
must be reviewed and modified as required.
152. Regulation 18 requires the competent
authority to prohibit the operation of any installation where the
measures taken by the operator for the prevention and mitigation of
major accidents are seriously deficient. It allows the competent
authority to prohibit the operation of any installation where the
operator has failed to submit the safety report within the time
stipulated.
D. Milford Haven Port Authority
Milford Haven is the fourth largest port in the
United Kingdom. Milford Haven Port Authority (“MHPA”) is
a trust board which was established as an independent statutory body
by the Milford Haven Conservancy Act 1958. Its powers have since been
extended by the Milford Haven Conservancy Act 1975, the Milford Haven
Conservancy Act 1983, the Milford Haven Port Authority Act 1986 and
the Milford Haven Port Authority Act 2002 (“the 2002 Act”).
MHPA has the power to make byelaws to regulate the
use of the haven, including the movement of vessels within it and the
time, manner and condition in which vessels may enter or leave the
haven. MHPA issued byelaws in 1984 and 1987 which apply to the sites
on which the LNG terminals are located. Pursuant to the byelaws, the
Harbourmaster of MHPA may give directions relating to activities
covered by MHPA’s statutory duties. The Harbourmaster can
therefore regulate the movement, speed and mooring of vessels as well
as the loading and unloading of goods. He may take such reasonable
steps as he thinks fit where masters of vessels fail to comply with
his directions. Further, the byelaws include provisions controlling
how vessels are to be navigated and manoeuvred within the haven.
Section 15 of the 2002 Act empowers MHPA to give
directions for the purpose of promoting or securing conditions
conducive to the ease, convenience or safety of navigation in the
haven and its approaches. It may give general directions, applicable
to all or to a specific class of vessels or, under section 17 of the
2002 Act, special directions to a particular vessel. As from 1
January 2006, MHPA has introduced general directions under the 2002
Act which largely reflect the byelaws.
Vessels seeking to enter the haven must confirm that
they are in possession of relevant certification before entry is
allowed. In the case of vessels transporting LNG, this includes a
certificate of fitness for the carriage of liquefied gases in bulk.
Vessels carrying dangerous substances are prohibited from entering
the haven if visibility falls below a specified level. Further,
before such dangerous substances may be handled within a harbour
area, the harbour authority must prepare an effective emergency plan
and consult with emergency services and any other appropriate body.
The Port Marine Safety Code introduces a national
standard for every aspect of port marine safety. MHPA took the
necessary steps to comply with the Code by 2001. The Code is based
upon the principle that the duties in relation to marine operations
in ports are discharged in accordance with the safety management
system. The safety management system is informed by, and based upon,
a formal risk assessment. The aim is to establish a system covering
all marine operations to ensure that the risks of such operations are
both tolerable and as low as reasonably practicable, and to identify
the means of reducing such risk. Safety management plans include
preparations for emergencies, and emergency plans need to be
published.
The Code is supplemented by a Guide to Good Practice
on Port Management Operations dealing with risk assessment and safety
management. The risk assessment typically involves data gathering,
familiarisation, hazard identification, risk analysis and assessment
of existing measures and risk control. Risk is to be assessed in four
ways, namely consequences to life, the environment, port authority
operations and users.
The Dangerous Substances in Harbour Areas Regulations
1987 cover liquid dangerous substances in bulk. Before such
substances can be handled within a harbour area, the harbour
authority must prepare an effective emergency plan and consult with
the emergency services and any other body it considers appropriate.
MHPA has prepared an emergency plan and consulted as required. The
process of assessment is continuous and changes in the level of risk
are identified and addressed.
E. 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 of the paper notes:
“... 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 QRA 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.
F. Public access to environmental information
Aside from the provisions in the EIA Directive and
the COMAH Regulations obliging States to ensure that certain
information be made available to the public (see paragraphs 133
and 149-151 above), a
public right of access to environmental information is established by
the Environmental Information Regulations 2004. Regulation 5 sets out
a duty to make available environmental information on request:
“(1) Subject to ... [the provisions of
the EIA 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.
...”
Regulation 5(4) stipulates that where the information
made available is compiled by or on behalf of the public authority,
it must be up to date, accurate and comparable, so far as the public
authority reasonably believes. Regulation 9 obliges the public
authority to provide advice and assistance to applicants, so far as
it would be reasonable to expect the authority to do so. Regulation
11 allows an applicant to make representations to a
public authority in relation to his request for environmental
information if it appears to him that the authority has failed to
comply with a requirement of these Regulations in relation to the
request.
Regulation 12(1) provides that 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.”
However, Regulation 12(2) stipulates that a public
authority shall apply a presumption in favour of disclosure.
Regulation 12(4) provides that a public authority may
refuse to disclose information to the extent that, inter alia:
“(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;
...
(e) the request involves the disclosure of
internal communications.”
Regulation 12(5) provides that a public authority may
refuse to disclose information to the extent that its disclosure
would adversely affect, inter alia:
“(a) international relations, defence,
national security or public safety;
...
(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.”
Regulation 2 defines “environmental
information” as having:
“... the same meaning as in
Article 2(1) of the [EIA] Directive, namely any information in
written, visual, aural, electronic or any other material form on–
(a) the state of the elements
of the environment, such as air and atmosphere, water, soil, land,
landscape and natural sites including wetlands, coastal and marine
areas, biological diversity and its components, including genetically
modified organisms, and the interaction among these elements;
(b) factors, such as
substances, energy, noise, radiation or waste, including radioactive
waste, emissions, discharges and other releases into the environment,
affecting or likely to affect the elements of the environment
referred to in (a);
(c) measures (including
administrative measures), such as policies, legislation, plans,
programmes, environmental agreements, and activities affecting or
likely to affect the elements and factors referred to in (a) and (b)
as well as measures or activities designed to protect those elements;
(d) reports on the
implementation of environmental legislation;
(e) cost-benefit and other
economic analyses and assumptions used within the framework of the
measures and activities referred to in (c); and
(f) the state of human health
and safety, including the contamination of the food chain, where
relevant, conditions of human life, cultural sites and built
structures inasmuch as they are or may be affected by the state of
the elements of the environment referred to in (a) or, through those
elements, by any of the matters referred to in (b) and (c).”
178. Section 50 of the Freedom of
Information Act 2000 (“FOI Act”) allows any person to
apply to the Information Commission for a decision as to whether a
request for information made to a public authority has been dealt
with in accordance with the FOI Act or the Environmental Information
Regulations. The Information Commissioner has powers of enforcement
if a public authority does not comply with the terms of decision
notice. It is possible to appeal the decisions of the Information
Commissioner to the First-Tier Tribunal and a further appeal to the
Upper Tribunal is available on points of law.
G. Time limits for bringing judicial review proceedings
179. 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.”
180. Rule 54.5 of the Civil Procedure
Rules sets out specific time limits for filing a claim form in
judicial review proceedings:
“(1) The claim form
must be filed–
(a) promptly; and
(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.”
H. 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.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 2 AND 8 OF THE CONVENTION
A. Scope of the case
The
applicants complained under Articles 2 and 8 of
the Convention that the United Kingdom authorities had failed in
their duties relating to the regulation of hazardous industrial
activities because of their failure properly to assess the marine
risks of the proposed LNG operations. They further complained about
the lack of information disclosed regarding the risks associated with
the LNG terminals in Milford Haven.
Being
master of the characterisation to be given in law to the facts of the
case (see Guerra and Others v. Italy, judgment of 19 February
1998, Reports of Judgments and Decisions 1998-I, p. 223,
§ 44; and Tătar and Tătar v. Romania (dec.),
no. 67021/01, § 47, 5 July 2007), the Court considers that in
the light of its case-law (see López Ostra v. Spain,
9 December 1994, § 51, Series A no. 303 C; Hatton
and Others v. the United Kingdom [GC], no. 36022/97,
§ 96, ECHR 2003-VIII; Guerra and Others, cited above, §
57; Giacomelli v. Italy, cited above, § 77) the
applicants’ complaints are most appropriately examined from the
standpoint of Article 8 alone, which provides:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
B. Applicability of Article 8
1. The parties’ submissions
(a) The Government
The
Government disputed that Article 8 was applicable in the
circumstances of the case. It was clear from the Court’s
case-law that Article 8 only applied to cases where severe
environmental pollution was in fact occurring (citing López
Ostra, cited above, § 51) or where it had been
determined that individuals were likely to be exposed to the
dangerous effects of an activity in such a way as to establish a
sufficiently close link with private and family life (Taşkın
and Others v. Turkey, no. 46117/99, § 113, ECHR
2004 X). In the applicants’ case, no severe environmental
pollution had actually occurred, nor was there any likelihood of
exposure to such pollution through the operation of the terminals.
Their allegations were confined to the potential marine risks posed
by the operation of the LNG terminals. In such a case, in order to
show that Article 8 was applicable, the Government contended that the
applicants had to be able to assert arguably, and in a detailed
manner, that for lack of adequate precautions taken by the
authorities, the degree of probability of the occurrence of damage
was such that it could be considered to constitute a violation
(citing Asselbourg v. Luxembourg (dec.), no.
29121/95, 29 June 1999). The applicants were not in that situation:
the degree of probability of marine risks occurring and resulting in
adverse consequences for the applicants was inevitably extremely
small. In the Government’s view, the mere possibility of harm
was not sufficient for Article 8 to be applicable.
(b) The applicants
The
applicants maintained that Article 8 was applicable in their case and
argued that the Government had failed to put in place a scheme that
would have allowed proper and transparent regulation of the hazardous
activities. They emphasised that they were not able to demonstrate
the level of risk posed to them by an LNG leak in the haven precisely
because the relevant authorities had failed to assess the risks
properly and had failed to inform them of the risks. They
distinguished the case of Asselbourg, to which the Government
referred, on the ground that in that case the applicants complained
of a continuing nuisance without providing convincing evidence of
that nuisance. The present case, by contrast, concerned a continuing
threat, and there was copious evidence that fears as to the
consequences of an LNG spill were real. In particular, industry
reports demonstrated that there was a risk arising from LNG
operations. In the applicants’ view, Article 8 had to be
applied in a precautionary way, and it would render that Article
devoid of any purpose if it only applied after an accident which
directly affected the applicants’ private and family lives had
occurred.
2. The Court’s assessment
As
the Court noted in Fadeyeva v. Russia, no. 55723/00, §
68, ECHR 2005 IV, Article 8 has been relied on in various cases
in which environmental concerns are raised. However, in order to
raise an issue under Article 8 the interference about which the
applicant complains must directly affect his home, family or private
life.
In
cases concerning environmental pollution, the pollution must attain a
certain minimum level if the complaints are to fall within the scope
of Article 8 (see López Ostra, cited above, § 51;
and Fadeyeva, cited above, §§ 69-70). The assessment
of that minimum is relative and depends on all the circumstances of
the case, such as the intensity and duration of the nuisance and its
physical or mental effects. The general context of the environment
should also be taken into account. There would be no arguable claim
under Article 8 if the detriment complained of was negligible in
comparison to the environmental hazards inherent to life in every
modern city.
The
Court has also found Article 8 to apply where the dangerous effects
of an activity to which the individuals concerned are likely to be
exposed have been determined as part of an environmental impact
assessment procedure in such a way as to establish a sufficiently
close link with private and family life for the purposes of Article 8
of the Convention (see Taşkın and Others, cited
above, § 113). In the subsequent case of Tătar v.
Romania, no. 67021/01, 27 January 2009, the Court found Article 8
to be applicable in a case concerning a risk posed by a mineral
extraction plant. In that case the absence of any internal decision
or other official document indicating, in a sufficiently clear
manner, the degree of risk which the hazardous activities posed to
human health and the environment was held not to be fatal to the
claim, given that the applicant had attempted to pursue domestic
remedies, and that a previous incident involving an accidental
spillage had resulted in a higher than usual reading of certain toxic
products in the vicinity (at §§ 93-97 of the Court’s
judgment).
In
the present case, there is no suggestion that the normal operation of
the LNG terminals poses any risk to the applicants or to the
environment. In particular, there is no allegation of any continuing
pollution caused by the transport of LNG in Milford Haven. The risk,
according to the applicants, arises from the possibility of a
collision in the haven, leading to the escape of a large quantity of
LNG and the potential for an explosion or a fire as a result of such
an accident. The applicants allege that the possibility of collision
and the risks and consequences associated with such an event have not
been properly assessed.
The
Court notes that in order to establish and operate the LNG terminals,
the operators were required to obtain planning permission and
hazardous substances consent (see paragraphs 9-11,
129 and 138 above). The
projects were of such a nature as to require, pursuant to the EIA
Directive, that environmental impact assessments be prepared (see
paragraphs 130-131 above).
The installations were classified as “top tier” for the
purposes of the COMAH Regulations, entailing more onerous conditions
on the operators (see paragraph 46 above). The
SIGTTO guidance to which the applicants referred makes
recommendations regarding the manner of selection of a site for an
LNG terminal in order to minimise marine risks. It also makes
reference to the risk of fire and explosion in the event of an escape
of LNG into the atmosphere (see paragraphs 161-170
above). A report by the HSE, following an initial examination of the
consequences of a major release from a delivery ship moored at the
jetty, concluded that released LNG plumes would be capable of
engulfing Milford Haven (see paragraph 33
above), the town where both applicants reside.
In
the circumstances, the Court is satisfied that the potential risks
posed by the LNG terminals were such as to establish a sufficiently
close link with the applicants’ private lives and homes for the
purposes of Article 8. Article 8 is accordingly applicable.
C. The complaint under Article 8 of the Convention
regarding the safety of the LNG terminals
1. Admissibility
(a) The parties’ submissions
(i) The Government
The
Government argued that the applicants had failed to bring a relevant
challenge in the domestic courts by way of judicial review within the
procedural time-limits. The courts had refused to grant permission to
seek judicial review on well-established principles reflecting the
importance of legal certainty having regard to the delay in bringing
the challenge and the consequent prejudice and detriment to good
administration that would have been caused by allowing their
challenge to proceed so long after the grant of the permissions. The
applicants’ allegations regarding public safety were not such
as to override the public interest considerations, particularly
having regard to the assessments carried out by the HSE and MHPA.
Thus the refusal by the courts to allow the applicants to proceed out
of time was for a legitimate public interest purpose and was
proportionate.
In
any event it was not appropriate to allow a late challenge to
planning permission where the HSE and MHPA retained powers to prevent
LNG activities taking place if any fundamental issue of public safety
arose, and where the relevant authorities had the power to revoke
consents. In this respect the Government emphasised that the
applicants had failed to apply to the relevant authorities to take
action in respect of the continued operation and regulation of the
LNG terminals, notwithstanding the powers of those authorities to
control the LNG operations and the supervisory jurisdiction by way of
judicial review of the domestic courts over the exercise of those
powers (see paragraphs 134-137
and 140-142 above). They
highlighted the possibility of making representations to MHPA, as the
port authority responsible for regulating activities at the port of
Milford Haven, to perform further risk assessments; to the
possibility of applying to have the planning permissions and
hazardous substances consents revoked based on alleged interferences
with their Convention rights which they claim were not considered at
the time the permissions were granted; and to the possibility of
monitoring the actions of the HSE and the MCA and challenging them in
the event of any failure to act in compliance with applicable
regulations.
(ii) The applicants
The
applicants accepted that powers existed to allow the authorities to
revoke or vary consents or to curtail uses of property. However, the
applicants could do no more than ask the authorities to revoke or
vary the consents, a request which, according to the applicants, the
authorities would be certain to reject. It was clear that these
powers were rarely exercised in practice, first, because they
generally required the decision-maker to acknowledge that a previous
decision was wrongly made; and second, because compensation would
have to be paid, and in the present case the level of compensation
would be impossibly large.
The
applicants considered the suggestion that they could judicially
review a failure by the authorities to revoke or vary the various
consents to be wholly unrealistic. In their view, the domestic courts
had made their reluctance to assist in this case apparent, and the
applicants referred in particular to the disclosure proceedings (see
paragraphs 123-124 above)
where the Court of Appeal had refused permission to proceed on the
basis that the disclosure application was intended to assist proving
a case which had already been rejected in the original judicial
review proceedings.
The
applicants accepted that, in seeking to challenge such a project, it
was sensible to challenge the actual grant of consent allowing the
project to go ahead. However, they contended that this did not
absolve the State from continuing to take steps to secure compliance
with the rights in question, particularly if all necessary steps were
not taken at the site selection stage.
(b) The Court’s assessment
It
is primordial that the machinery of protection established by the
Convention is subsidiary to the national systems safeguarding human
rights. This must not usurp the role of Contracting States whose
responsibility it is to ensure that the fundamental rights and
freedoms enshrined therein are respected and protected on a domestic
level. The rule of exhaustion of domestic remedies is therefore an
indispensable part of the functioning of this system of protection
and those who wish to invoke the supervisory jurisdiction of the
Court as concerns complaints against a State are thus obliged to use
first the remedies provided by the national legal system (see,
amongst many authorities, Akdivar and Others v. Turkey,
16 September 1996, § 65, Reports 1996 IV; and
Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99,
3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04,
21819/04, § 69, 1 March 2010).
Article
35 § 1 requires that the complaints intended to be made
subsequently at Strasbourg should have been made to the appropriate
domestic body, at least in substance and in compliance with the
formal requirements and time-limits laid down in domestic law and,
further, that any procedural means that might prevent a breach of the
Convention should have been used (see Akdivar and Others,
cited above, § 66; and Cardot v. France, 19 March
1991, § 34, Series A no. 200). It is incumbent on the
Government claiming non-exhaustion to satisfy the Court that the
remedy was an effective one available in theory and in practice at
the relevant time, that is to say, that it was accessible, was one
which was capable of providing redress in respect of the applicant’s
complaints and offered reasonable prospects of success (see Akdivar
and Others, cited above, § 68; Kennedy v. the United
Kingdom, no. 26839/05, § 109, ECHR 2010 ...).
However, once this has been demonstrated it falls to the applicant to
establish that the remedy was in fact exhausted or was for some
reason inadequate and ineffective in the particular circumstances of
the case or that there existed special circumstances absolving him or
her from the requirement.
The
Court agrees with the domestic courts that despite the way that their
substantive judicial review claim was formulated, the applicants were
in essence seeking to challenge the grants of planning permission in
respect of the projects, and not the hazardous substances consents
(see paragraph 81 above). It observes that the
High Court found that the applicants had known of the relevant
decisions they wished to challenge in August to October 2004 (see
paragraph 81 above). The Court notes that, as
the applicants’ challenges to the grants of planning permission
and hazardous substances consent were deemed to have been lodged with
undue delay, they therefore failed to comply with the relevant
procedural requirements set out in the Supreme Court Act 1981 and the
CPR (see paragraphs 82 and 179-180
above).
The
Court further acknowledges the existence of powers to revoke,
discontinue or vary the consents granted in respect of the LNG
terminals and the availability of judicial review to challenge any
perceived failure to comply with regulatory duties (see paragraphs
134-137 and 140-142
above). It seems, from the parties’ observations and the
judgments of the High Court and Court of Appeal, that rather than
seeking to challenge the planning permissions in proceedings brought
out of time, it would have been more appropriate for the applicants
to seek to make use of the powers contained in the Planning Act and
the Hazardous Substances Act to request revocation of the consents,
or their variation to require that a marine risk assessment be
carried out, failing which, to lodge judicial review proceedings of
the authorities’ decisions to refuse those requests. The
applicants elected instead to challenge the original consent and have
therefore failed to pursue remedies allowing consents to be revoked
or modified
However,
the Court notes that in reviewing the decision of the High Court that
there was no public interest such as to justify an extension of the
time-period for bringing a claim for judicial review in respect of
the planning permissions and hazardous substances consents, the Court
of Appeal considered the applicants’ complaints regarding the
alleged absence of an appropriate risk assessment. It observed that
both the HSE and the MHPA had expressed their satisfaction as to the
safety of the proposals and had advised the relevant decision-makers
(see paragraph 89 above). In the circumstances,
it disagreed that the risk assessment had been inadequate (see
paragraph 93 above). In the subsequent
proceedings brought by the applicants to seek disclosure of
documents, both the High Court and the Court of Appeal referred to
the undesirability of allowing the applicants to use the proceedings
as an attempt to have re-examined a complaint already examined in
detail by the courts (see paragraphs 123-124
above).
It
is therefore clear that notwithstanding the applicants’
decision to bring out-of-time judicial review proceedings against the
initial grants of planning permission and hazardous substances
consents instead of seeking to have those consents revoked or
modified, the domestic courts addressed their arguments as to the
inadequacy of the risk assessments and expressed themselves to be
satisfied with the assessments which had been conducted. That being
the case, the courts have examined the applicants’ complaints
on the merits and any subsequent challenge would not, in the Court’s
view, offer reasonable prospects of success. In the circumstances the
Court is satisfied that the applicants have exhausted available and
effective domestic remedies. The Government’s
objection as to non-exhaustion is accordingly rejected.
The
Court considers that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
2. Merits
(a) The parties’ submissions
(i) The applicants
The
applicants emphasised at the outset that they made no complaint about
the assessment of the risks posed by the shoreside operations in
respect of the LNG terminals. They accepted that the HSE, an
independent statutory authority with a duty to provide safety advice,
based on a QRA approach, had been fully involved in the assessment of
the shoreside risks. The applicants’ complaint concerned the
assessment of the marine risks, in particular, the danger of a major
release of LNG from a delivery ship. They argued that it was not
obvious which body was responsible for assessing such risks in the
context of advising the planning and hazardous substances
authorities. Unlike the HSE, MHPA had commercial interests in the
operation of the haven, and it was not clear if it was even a
statutory consultee in relation to the applications for planning
permission and hazardous substances consent. The applicants
contrasted the risk assessment of the land-based risks by the HSE and
the EA, under the Hazardous Substances Regulations and the COMAH
Regulations, with the position regarding marine-based risks, where
there was no equivalent assessment by an independent regulator and
the COMAH Regulations did not apply. In the applicants’ view,
it could not be assumed that because a gas leak on the shore had been
assessed as “acceptable”, a similar risk at sea was also
acceptable, referring to the conclusions of their expert, Dr Cox (see
paragraphs 127-128 above).
The
applicants accepted that some form of risk assessment had been
conducted in respect of the Dragon site but considered that the
assessment of marine risks was limited and that the documents
released indicated that the data were inadequate to reach any firm
conclusions. They contended that no assessment at all of the marine
risks had been undertaken in respect of the South Hook site. In
respect of both sites the applicants insisted that MHPA had not
adopted the same rigorous QRA approach as the HSE had done (see
paragraph 55 above). They emphasised that the
Government had failed to supply a copy of any QRA or other assessment
which is said to have been carried out.
The
applicants insisted that quantitative risk assessment, understood as
an assessment which took the potential consequences from a range of
scenarios and then attributed frequencies to them, was the “gold
standard” for assessing risk. The HSE used clearly published
guidelines as to what level of risk was acceptable in advising
planners. However, there was no evidence that MHPA had undertaken a
QRA to determine whether the overall level of risk posed by the LNG
terminals was acceptable, and references to any QRA carried out
should be treated with extreme caution as it was clear that MHPA had
advised on the safe management of shipping within the haven in the
context of LNG terminals whose locations was already decided (see
paragraph 66 above).
The
applicants noted the position of SIGTTO that MHPA had done precisely
what SIGTTO would expect to be done in undertaking risk assessment
and planning for LNG shipping. However, they pointed out that the
Government had not addressed the fact that the SIGTTO guidance
required QRA of the marine operations and set out a series of minimum
safety requirements (see paragraphs 165 and
167-169 above). The
Government did not explain how these requirements were complied with,
or why they were not complied with. Although the applicants accepted
that there was no existing regulatory requirement for any particular
format of risk assessment or berthing arrangements, the Essential
Best Practice Guidance from SIGTTO (see paragraphs 162-170
above) was a material consideration and lack of adherence required an
explanation from the Government. The applicants further contended
that SIGTTO, the HSE, MCA and the relevant Government department
appeared never to have had sight of MHPA’s risk assessment
work, and were therefore in no position to assert that it was done
correctly or at all. In particular, MHPA had entered into
confidentiality agreement with developers which prevented it from
releasing safety information either to the public or the planners.
As
regards the Government’s contention that the technical
assessment of the operations was within their margin of appreciation
and more specifically within the competence of MHPA, the applicants
agreed with the statement in so far as the carrying out of day to day
operations was concerned. However, they disputed that the margin of
appreciation and the competence of MHPA were relevant to the failure
of the regulatory process to assess the underlying risks of the LNG
operation as a whole.
(ii) The Government
The
Government contended that even if Article 8 gave rise to positive
obligations on the authorities to consider the marine risks, the
obligation extended only to conducting appropriate investigations and
studies so that the effects of the activities that might damage the
environment and infringe individual rights could be predicted and
evaluated in advance and a fair balance could accordingly be struck
between the various interests at stake.
The
Government insisted that the relevant authorities had complied with
any duties arising under Article 8 in respect of the regulation of
hazardous industrial activities. They explained that there were many
processes involved in LNG transportation and storage. A comprehensive
regulatory regime was in place in the United Kingdom. The fact that
there was more than one regulator did not reflect confusion but the
robustness of the regulatory regime.
In
the Government’s submission, Article 8 did not impose
requirements on the authorities to conduct a marine risks assessment
in any specific or prescribed format. It was primarily a matter for
the relevant authorities, subject to the wide margin of appreciation
applicable in this area, to determine what was the appropriate
assessment. There was no requirement for the assessment to take a
particular form or to be in the form of a specific type of QRA which
the applicants sought. MHPA was entitled to make an assessment based
on a range of reports, research and data from various sources. The
Government insisted that there could be no doubt that MHPA had made
an assessment, having confirmed that they were satisfied that the LNG
operations could be conducted safely in the haven in light of the
reports and research it had conducted. In particular, any obligation
under Article 8 did not mean that the authorities could take a
decision only if comparable and measurable data were available in
respect of each and every aspect of the matter to be decided (citing
Giacomelli, cited above, § 82; and Taşkın
and Others, cited above, § 118).
The
decisions to grant planning permission and hazardous substances
consent were made by the relevant authorities following a
comprehensive and detailed process of application, consultation,
review and assessment. Both developments were the subject of
Environmental Statements submitted to the relevant local planning
authorities in compliance with applicable Regulations and the EIA
Directive. They were detailed and lengthy documents assessing the
main effects of the proposed development. The applications for
planning permission were properly advertised and the Environmental
Statements were made available for public inspection, including by
way of public exhibition (see paragraphs 17,
29-30, 37,
43-44 and 53
above). Relevant bodies acted on the advice of statutory consultees,
including the HSE and MHPA, as to the acceptable risk of the
applications. The Government confirmed that MHPA was a statutory
consultee of the hazardous substances consent process. The absence of
an HSE risk assessment of a discharge of LNG from a ship did not
affect the fact that the HSE had carried out a risk assessment of an
LNG vapour cloud release from the land and from the loading arm on a
jetty far out in the haven, or from a rupture of the pipeline on the
jetties, in which scenario the LNG would travel over water before
arriving at the land (see paragraphs 93, 97
and 101 above).
According
to the Government, MHPA had undertaken and facilitated a detailed
assessment of the marine risks involved in the LNG terminal
proposals. They referred to the Code (see paragraphs 157-158
above), the active participation of MHPA in the process of risk
assessment undertaken by the developers in spring 2002 and the
simulation tests and other training exercises. In particular, MHPA’s
range of risk assessment included the reports and assessments
identified in the summary grounds (see paragraph 72
above). SIGTTO had also worked with MHPA and confirmed to the best of
its knowledge that the LNG terminal operators had done precisely what
they would expect to be done in undertaking risk assessments and
planning for LNG shipping (see paragraphs 74-75
above). It was logical and sensible that movements of shipping within
the port should be subject to regulation, control and detailed
assessment by MHPA. That body had considerable experience and
knowledge of the port and these kinds of operations.
The
Government argued that the authorities were entitled to rely on the
advice of the consultees without requiring further environmental
information or the detail of any of the studies. Such assessments
were made in the context of the HSE’s detailed assessment and
acceptance of the risks, continuing regulatory duties, MHPA’s
duties and the obvious interest of the operators in the safe
operation of the Milford Haven port. Both operators were under an
obligation to provide safety reports pursuant to the COMAH
Regulations, although these reports had not been made public for
reasons of national security. The HSE reviewed the reports in respect
of its regulation of the shoreside risks. In deciding whether it had
enough information to permit the LNG terminals to proceed, the
relevant authorities were entitled to weigh all the evidence before
them and were entitled to conclude that the grant of permissions and
consents struck a fair balance and was proportionate, bearing in mind
the overall assessment of the acceptability of the LNG terminals.
The
Government pointed out that the applicants had been able to bring a
challenge in the domestic courts by way of judicial review of the
decision to grant the permissions and consents. They had failed to
bring their challenge in time and were therefore legitimately refused
permission to proceed with their challenge. In deciding to refuse
permission, both the High Court and the Court of Appeal had observed
in full any procedural and substantive rights arising under Article
8, giving careful consideration to the knowledge of the applicants of
the relevant decisions at the time; whether there was any reasonable
excuse for the delay; whether allowing the claim to proceed would
cause prejudice or detriment to good administration; and whether the
public interest justified permitting the claim to proceed.
(b) The Court’s assessment
(i) General principles
The
Court reiterates that in a case involving decisions affecting
environmental issues there are two aspects to the inquiry which it
may carry out. First, the Court may assess the substantive merits of
the national authorities’ decision to ensure that it is
compatible with Article 8. Second, it may scrutinise the
decision-making process to ensure that due weight has been accorded
to the interests of the individual (see, mutatis mutandis,
Hatton and Others, cited above, § 99; Giacomelli,
cited above, § 79; and Taşkın and Others,
cited above, § 115).
It
is for the national authorities to make the initial assessment of the
“necessity” for an interference. They are in principle
better placed than an international court to assess the requirements
relating to the transport and processing of LNG in a particular local
context and to determine the most appropriate environmental policies
and individual measures while taking into account the needs of the
local community. The Court has therefore repeatedly stated that in
cases raising environmental issues the State must be allowed a wide
margin of appreciation (see Hatton and Others, cited above, §
100; Giacomelli, cited above, § 80; Taşkın
and Others, cited above, § 116).
As
the Court has previously indicated, although Article 8 contains no
explicit procedural requirements, the decision-making process leading
to measures of interference must be fair and must afford due respect
to the interests safeguarded to the individual by Article 8 (see
Giacomelli, cited above, § 82; and Taşkın
and Others, cited above, § 118). It is therefore necessary
to consider all the procedural aspects, including the type of policy
or decision involved, the extent to which the views of individuals
were taken into account throughout the decision-making process and
the procedural safeguards available (see Hatton and Others,
cited above, § 104; Giacomelli, cited above, §
82; and Taşkın and Others, cited above, § 118).
However, this does not mean that the authorities can take decisions
only if comprehensive and measurable data are available in relation
to each and every aspect of the matter to be decided (see Giacomelli,
cited above, § 82; and Taşkın and Others, cited
above, § 118).
A
governmental decision-making process concerning complex issues of
environmental and economic policy must in the first place involve
appropriate investigations and studies so that the effects of
activities that might damage the environment and infringe
individuals’ rights may be predicted and evaluated in advance
and a fair balance may accordingly be struck between the various
conflicting interests at stake (see Hatton and Others, cited
above, § 128; Giacomelli, cited above, § 83; Taşkın
and Others, cited above, § 119; Dubetska and Others v.
Ukraine, no. 30499/03, § 143, 10 February
2011; and Grimkovskaya v. Ukraine, no. 38182/03,
§ 67, 21 July 2011).
Finally,
the individuals concerned must also be able to appeal to the courts
against any decision, act or omission where they consider that their
interests or their comments have not been given sufficient weight in
the decision-making process (see, mutatis mutandis, Hatton
and Others, cited above, § 128; Taşkın and
Others, cited above, §§ 118-119; and Giacomelli,
cited above, § 83).
(ii) Application of the general principles
to the facts of the case
The
Court notes that the applicants’ complaint concerns the alleged
inadequacy of the authorities’ assessment of the marine risks
associated with the operation of the LNG terminals at Milford Haven.
Bearing in mind the wide margin of appreciation accorded to the State
in this area, the Court’s starting point in assessing whether a
fair balance has been struck between the public interest and the
applicants’ interests in the case is the legislative and
regulatory framework which governed the hazardous activities at issue
in the present case
In
the first place, legislation was in place requiring the developers to
obtain planning permission before proceeding with the development of
the LNG terminals (see paragraphs 9 and 129
above). The legislation obliges the planning authorities to take into
account relevant environmental information and to this end, the
developers were required to prepare and submit an environmental
impact assessment of the project, identifying, inter alia,
matters of concern in respect of public safety and the environment
(see paragraphs 130-132
above). A process of assessment by relevant bodies and examination of
the application by the planning authorities followed. A separate
application was required in respect of hazardous substances consent
(see paragraphs 10-11 and
138-139 above), with a
similarly detailed examination by the relevant authority and an
assessment by statutory consultees, which included the HSE and MHPA.
The COMAH Regulations imposed further stringent requirements on the
operators of the Dragon and South Hook sites to take all measures
necessary to prevent major accidents and to limit their consequences
(see paragraphs 144-148 and
152 above). MHPA itself has powers to regulate
the use of the port and to issue instructions and directions to users
to ensure safety within the haven (see paragraphs 154-155
above). It has voluntarily complied with the Code, which provides
further guidance to improve safety with port areas (see paragraphs
157-158 above). Vessels
entering the haven are subject to a regime of certification to ensure
that they are capable of carrying dangerous liquids (see paragraph
156 above). Industry reports prepared by SIGTTO
provide additional guidelines on selecting sites for LNG terminals
and promoting best practice in the field (see paragraphs 161-170
above). The Court is accordingly satisfied that an extensive
legislative and regulatory framework is in place in the United
Kingdom, and more specifically at Milford Haven port, to promote
safety and to limit the risks posed by the transfer and processing of
LNG in the area.
The
domestic authorities’ evaluation of the assessments carried out
by the developers, in cooperation with relevant authorities, is also
of some importance. As the Court noted above, in refusing leave to
the applicants to seek judicial review of the grants of planning
permission and hazardous substances consent in respect of the Dragon
and South Hook sites, the Court of Appeal examined the applicants’
complaint regarding the alleged deficiencies in the marine risks
assessment. The court made it clear that if there was evidence that
public safety had been overlooked by the decision makers then
that might justify granting permission to seek judicial review,
notwithstanding the delay (see paragraph 88
above). However, it emphasised that MHPA was a statutory body with
responsibility to ensure safety within its waters and that it had
expressed itself to be satisfied as to the safety of the proposed LNG
terminals. It considered that the local authorities were entitled to
rely on the specialist advice received (see paragraph 89
above).
The
judge went on to address the specific allegation made by the
applicants, namely the absence of an adequate assessment of the
marine risks (see paragraph 93 above). He
considered that the risk of collision had undoubtedly been dealt with
by MHPA, as counsel for the applicants had conceded in the course of
the hearing. In respect of the more specific allegation that there
had been no assessment of the consequences of a release of LNG for
the local population, the judge did not accept that the evidence
before the court supported the argument that there had been a failure
in this regard. He observed that the HSE had assessed both the
consequences and likelihood of an escape of LNG for all land-based
and jetty-based activities. Although he mistakenly believed at that
time that this included a major release from a delivery ship while
tied up at the jetty, he later explained that this error did not
affect his conclusions that the risk assessments had been adequate.
He noted that the HSE had carried out an assessment of the
possibility of an LNG release on the shore, a location not obviously
more distant from the areas of population then the proposed jetties
(see paragraph 101 above). The judge also
referred to the assessment process in which MHPA had participated and
to the various reports and exercises carried out so that it could
fulfil its statutory responsibilities for safety, cited in its
summary grounds. He noted that MHPA had been required to concentrate
on the risk of a collision, and that it appeared to have done this.
Taking into account the studies undertaken by the HSE, together with
the assessments and exercises conducted by MHPA, the judge was
satisfied that the relevant matters had been considered by the
authorities (see paragraph 93 above).
In
the court’s subsequent decision on the re-opening application,
the judge referred again to the range of studies carried out by MHPA,
which he observed were largely directed towards an assessment of the
marine risks. He noted that there was evidence before the court that
there had never been an incident involving a major release from a
ship to the external atmosphere. He emphasised that it was
principally for MHPA to decide what research was necessary for it to
be satisfied as to the level of risk to public safety from the
operation of the LNG terminals, and considered that the evidence fell
“far short” of demonstrating that MHPA had neglected its
statutory duties. Finally, he made reference to the power of the
authorities to revoke the consents if evidence emerged that the risks
posed by the unloading of LNG at the jetties were greater than they
then appeared (see paragraph 101 above).
Turning
to the assessments conducted by the relevant authorities, the Court
observes that both sites were the subject of lengthy Environmental
Statements, which identified potential risks from the operation of
the LNG terminals and proposed mitigating measures (see paragraphs
17-25, 30-32
and 44-48 above). In
respect of the Dragon terminal, the Statement referred to MHPA’s
role in assisting Petroplus in planning the marine aspects of the
project to ensure the safety of the proposal. It made reference to
exercises to be conducted and to the need for consultation in respect
of an assessment of the marine risks and during the design,
construction and operational stages of the project (see paragraph 21
above). A real-time simulation exercise was carried out, and
conclusions regarding wind conditions were drawn from it (see
paragraph 22 above). Consideration was given to
the effects of the increase in traffic within the haven (see
paragraphs 23 and 31
above). Mitigation measures identified included continuing
consultation and further simulation exercises (see paragraph 23
above). In the context of the assessment for the South Hook site,
reference was made to a formal marine hazard exercise which
identified potential mitigation measures which could be incorporated
into the design of the terminal (see paragraph 47
above). Specific hazards with the potential to extend beyond the
boundaries of the site itself were also identified and safeguards
were proposed (see paragraph 48 above). In its
submissions to the planning authorities and through correspondence
and interviews in the media, MHPA explained that it was working with
specialists to ensure the safe and effective management of large LNG
vessels in the haven (see paragraphs 26-27,
40, 49, 55-56,
64-66 and 68-70
above). In particular the Chief Executive of MHPA identified possible
measures which could reduce risks and explained that MHPA had been
working with the developers to ensure that the possibility of a
shipping incident was extremely low (see paragraphs 55-56
above). He emphasised that MHPA had the power to control the passage
of LNG vessels through the haven by laying down conditions regarding,
for example, the time of entry, state of the tide, the number of
pilots and the number of tugs (see paragraph 64
above). He and the Harbourmaster of the haven consistently referred
to the risk assessment work undertaken by the developers, MHPA and
other specialists (see paragraphs 55-56,
65-66 and 68-69
above). In its summary grounds in the later judicial review
proceedings, reference was made to a number of different reports and
studies which had informed MHPA’s view on the safety of the
proposals and its strategy for managing the LNG vessels in the haven
(see paragraphs 71-72
above).
The
Court notes that the applicants have provided a copy of a report and
a letter from an expert originally instructed in 2008 in the context
of a complaint made to the European Commission (see paragraphs
125-128 above). The expert
expressed the view that there were a number of gaps in the risk
assessment carried out, and that the information collated had never
been pulled together in a clear and convincing analysis (see
paragraphs 127 128 above). However, it is
clear that the report was prepared after the domestic proceedings had
terminated, and the applicants appear to have lodged no expert report
for consideration by the domestic courts in the context of their
judicial review claim. If they consider that new expert evidence
provides support for their claims regarding the assessment of the
marine risks, then it is open to them, as the Court of Appeal itself
pointed out (see paragraph 101 above), to apply
to have the consents revoked. In such proceedings they could rely on
any new expert evidence. In any event, the evidence merely expressed
one view on a situation which was capable of multiple differing
opinions, and as noted above, the courts were satisfied that on the
basis of all the evidence before them, the assessments carried out
were adequate.
The
applicants further relied on the guidance of SIGTTO, which they claim
was not followed by MHPA. However, the SIGTTO guidance is not binding
and is only one factor to be taken into account in assessing the
sufficiency of the assessments conducted. In any case, SIGTTO itself
indicated that to the best of its knowledge MHPA had done everything
that was expected of it in respect of risk assessment and planning
for LNG shipping (see paragraphs 74-75
above).
As
regards the procedural aspects of the case, the Court notes that the
applications for planning permission were publicised and that
comments from members of the public were invited (see paragraphs 17,
29-30, 37,
43 44 and 53 above).
The applicants were able to seek judicial review of the impugned
decisions, and even though they lodged their applications for
judicial review late, the courts nonetheless examined their
complaints and provided detailed factual and legal reasons for not
extending the time, with reference to the courts’ satisfaction
with the assessment by the authorities of the safety of the LNG
terminals. They had the benefit of three oral hearings in the context
of their application for leave to seek judicial review (see
paragraphs 78, 86 and 98
above).
The
Court reiterates that the protection afforded by Article 8 in this
area does not mean that decisions can only be taken if comprehensive
and measurable data are available in relation to each and every
aspect of the matter to be decided. In the present case, there was a
coherent and comprehensive legislative and regulatory framework
governing the activities in question. It is clear that extensive
reports and studies were carried out in respect of the proposed LNG
terminals, by both HSE and MHPA, in cooperation with the developers.
The planning and hazardous substances authorities as well as the
domestic courts were satisfied with the advice provided by the
relevant authorities. In the circumstances, it does not appear to the
Court that there has been any manifest error of appreciation by the
national authorities in striking a fair balance between the competing
interests in the case (see Fadeyeva v. Russia, cited above, §
105).
The
Court therefore considers that the respondent State has fulfilled its
obligation to secure the applicants’ right to respect for their
private lives and homes. There has accordingly been no violation of
Article 8 of the Convention.
D. The complaint regarding disclosure of information
The
applicants also complained about the lack of
information disclosed regarding the risks associated with the LNG
terminals in Milford Haven.
1. Admissibility
(a) The parties’ submissions
The
Government contended that it was open to the applicants to pursue
their complaints regarding access to information with the relevant
domestic authorities. There was a specific domestic procedure
covering access to environmental information, which provided the
applicants with a right to seek information from MHPA or from any
other relevant authority under the Environmental Information
Regulations. Indeed, they had already successfully invoked their
rights against MHPA and obtained copies of two reports (see
paragraphs 107-120 above).
It was not clear what additional information the applicants still
sought, if any. However, if they did require further information then
the Environmental Information Regulations and the FOI Act (see
paragraphs 171-178 above)
provided for a route of appeal via the Information Commissioner and
the Information Tribunal, with a possible appeal to the Upper
Tribunal and ultimately to the Court of Appeal.
The
applicants emphasised that they had pursued their requests for data
from MHPA, via judicial review and with the Information Commissioner.
When MHPA had finally provided some of the data sought, it was
heavily redacted. The applicants did not see what more they could
possibly have done by way of seeking to obtain more information. They
did not consider that additional information requests would have
resulted in more useful results, and it was likely that MHPA would
have strongly resisted any further efforts.
(b) The Court’s assessment
The Court considers that the question whether the
applicants have exhausted domestic remedies in respect of their
complaint regarding access to information is closely linked to the
merits of this complaint (see McGinley and Egan v. the United
Kingdom, 9 June 1998, § 75, Reports 1998 III).
It therefore decides to join the objection to the merits.
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention, nor is it
inadmissible on any other grounds. It must therefore be declared
admissible.
2. Merits
(a) The parties’ submissions
(i) The applicants
The
applicants referred to Giacomelli v. Italy, cited above, §
83, which they considered set out the legal principle regarding the
provision of information. They claimed that the actions of the
domestic authorities fell short of satisfying the requirements set
out in that case, for several reasons.
First,
although Giacomelli referred to “conclusions” of
risk assessments being made available, the applicants considered that
the term had to be seen in context. Although it clearly did not
require all raw data and calculations to be provided, the information
made public had to be sufficient to enable the public to understand
the basis on which the conclusions were reached. The applicants
emphasised that the underlying principle was that members of the
public should be able to assess themselves the danger to which they
were exposed. In their case, the only conclusions provided were
unsubstantiated assertions that the proposed development was safe.
They noted that the Court in McGinley and Egan, cited above, §
101, had said that where a State engaged in hazardous activities
which had adverse consequences, Article 8 required that procedures be
established to enable those potentially affected to seek all relevant
and appropriate information.
Second,
the applicants pointed out that the information eventually released
by MHPA following the applicants’ persistence before the
Information Commissioner was heavily redacted. In their view the
assessments carried out were in any event wholly insufficient to
allow members of the public to assess the dangers to which they were
exposed, and they referred in this respect to the conclusions of Dr
Cox (see paragraphs 125-128
above).
Third,
it remained the applicants’ case that no authority, including
MHPA, had carried out a satisfactory assessment of the risks of an
LNG release from a ship when manoeuvring or when tied to a jetty.
Without that assessment, it was impossible for members of the public
to evaluate the risks to themselves or their families.
(ii) The Government
The
Government argued that any obligation arising under Article 8 did not
extend to a right of access for the public to all studies used in the
assessment process. The Court had referred in previous judgments to
the importance of public access to conclusions and to information
enabling members of the public to assess the danger to which they
were exposed (citing Guerra, cited above, § 60; and
McGinley and Egan cited above, § 97). In the
Government’s view, this obligation had been satisfied.
First,
MHPA had made public its conclusions on the studies it had conducted,
confirming that it considered that the LNG terminals could be
operated safely. Second, the HSE had made public its assessments of
the likelihood and consequences of particular incidents. Third, MHPA
had made known the conclusions of its risk assessments, and in
particular as to the extremely small possibility of any incident
occurring in the haven itself. There were considerable amounts of
information in the Environmental Statements. Finally, the Government
reiterated that the applicants had received access to two additional
reports which they had specifically requested. They therefore
insisted that the applicants had enjoyed access to a wealth of
information, including the professional assessment of MHPA.
In
the Government’s submission, there was no basis for requiring
the details of the risk assessments necessarily to be disclosed where
the conclusions had been made public; the assessments contained
detailed information which might be commercially confidential or pose
a threat to national security if disclosed; and there was a fully
established domestic system for individuals to seek disclosure.
(b) The Court’s assessment
(i) General principles
In
cases concerning hazardous activities, the importance of public
access to the conclusions of studies undertaken to identify and
evaluate risks and to essential information enabling members of the
public to assess the danger to which they are exposed is beyond
question (see, mutatis mutandis, Guerra and Others,
cited above, § 60; McGinley and Egan, cited above, § 97;
Giacomelli, cited above, § 83; and Taşkın
and Others, cited above, § 119).
The
Court has previously indicated that respect for private and family
life under Article 8 further requires that where a Government engages
in hazardous activities which might have hidden adverse consequences
on the health of those involved in such activities, and where no
considerations of national security arise, an effective and
accessible procedure must be established which enables such persons
to seek all relevant and appropriate information (see McGinley and
Egan, cited above, § 101; and Roche v. the United Kingdom
[GC], no. 32555/96, § 162, ECHR 2005 X).
(ii) Application of the general principles
to the facts of the case
The
Court observes at the outset that the planning and hazardous
substances applications were public documents and formed the subject
of extensive public consultation (see paragraphs 17,
29, 37, 43
and 53 above). The Environmental Statements
accompanying the applications were also made available to the public
and the applicants do not dispute that they had access to them. The
MHPA responded to the consultations and in its response provided
details of its conclusions regarding the safety of the proposals (see
paragraphs 26-27, 49
and 55 above). MHPA also responded to a number
of queries by letter and in response to journalists’ queries
reiterating its conclusions on the risks posed by the terminals, and
providing details of the simulation exercises conducted, involving
MHPA pilots, under different weather and wind conditions (see
paragraphs 40, 56, 64-66
and 68 70 above).
The
Court further notes that the provisions of the Environmental
Information Regulations and the FOI Act establish an extensive regime
to promote and facilitate public access to environmental information
(see paragraphs 171-178
above). The definition of “environmental information” is
relatively wide and can include information pertaining to public
safety (see paragraph 177 above). In the event
that information requested is not provided by the relevant authority,
a challenge to the Information Commissioner is possible, followed by
an appeal to the Information Rights Tribunal, the Upper Tribunal and,
ultimately, the Court of Appeal (see paragraph 178
above). Further requirements to provide specific information to the
public are contained in the EIA Directive and the COMAH Regulations
(see paragraphs 133 and 149-151
above). The applicants availed themselves of the possibilities
afforded to them by this legislation, and obtained a favourable
decision from the Information Commissioner ordering the release of
two reports requested by them (see paragraphs 119 120
above). In so far as they now seek to complain that the reports were
heavily redacted, the Court observes that they have not suggested,
nor have they provided any evidence to support the suggestion, that
they made a complaint to the relevant domestic authorities regarding
the information provided. It appears that section 50 of the FOI Act
would have allowed the applicants to apply to the Information
Commissioner for a ruling as to whether the information provided
satisfied the obligations incumbent on MHPA pursuant to the
Environmental Information Regulations (see paragraph 178
above).
The
Court reiterates the importance of informing the public of the
conclusions of studies undertaken and to other essential information
to identify and evaluate risks. As the Information Commissioner
explained in his decision notice (see paragraph 119
above), disclosure of environmental information of the type requested
by the applicants can add significantly to public knowledge of the
risks posed by the development and better inform public debate.
However, the Court considers that in the present case, a great deal
of information was voluntarily provided to the public by MHPA and the
developers of the projects. The applicants have failed to demonstrate
that any substantive documents were not disclosed to them. In any
event, in respect of any information which they allege was not
provided, they had access to a mechanism established by law to allow
them specifically to seek particular information, a mechanism which
they employed successfully. In the circumstances, the Court is
satisfied that the authorities provided information as required by
Article 8 and that there was an effective and accessible procedure by
which the applicants could seek any further relevant and appropriate
information should they so wish.
In
conclusion, having regard to the information provided during the
planning stage of the projects, to the provisions of the
Environmental Information Regulations allowing access to
environmental information and to the routes of appeal available in
the FOI Act, the Court finds that the respondent State has fulfilled
its positive obligation under Article 8 in relation to these
applicants. There has accordingly been no violation of this
provision. In view of this conclusion, it is not necessary for the
Court to rule on the Government’s preliminary objection (see
paragraph 236 above).
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
Relying
on Article 6 § 1 of the Convention, the applicants complained
about the Court of Appeal panel’s failure to recuse
itself in the proceedings on whether to re-open its judgment in light
of an error of fact.
The
Court observes at the outset that the judgment of the Court of Appeal
of 17 March 2006 was final as no further appeal was possible. The
Court recalls that the Convention does not oblige States to allow
individuals the opportunity to have their cases re-opened once a
judgment has become final (see, most recently, Vainio v. Finland
(dec.), no. 62123/09, 3 May 2011; and Kolu v. Finland (dec.),
no. 56463/10, 3 May 2011). Moreover, Article 6 § 1 of the
Convention is not applicable to proceedings concerning an application
for the re-opening of civil proceedings which have been terminated by
a final decision (see, inter alia, Surmont and De Meurechy
v. Belgium, nos. 13601/88 and 13602/88, Commission decision
of 6 July 1989, Decisions and Reports 62 p. 288; Helmers v.
Sweden, no. 27522/95, Commission decision of 1 July 1998,
unreported; and Vainio and Kolu, both cited above).
The
applicants’ complaint under Article 6 § 1 is accordingly
incompatible ratione materiae with the provisions of the
Convention and must be declared inadmissible pursuant to Article 35
§§ 3 and 4 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly,
the applicants complained under Article 6 §
1 of the Convention that the domestic courts’ failure to make a
disclosure order in the judicial review proceedings concerning the
grant of planning permission and hazardous substances consent and
that the Court of Appeal’s failure to hear arguments relating
to an application for a protective costs order violated their right
to a fair trial; and under Article 13 that the implementation by the
Court of Appeal of the procedure under Part 52.17 CPR had denied them
an effective remedy in respect of their Convention complaints.
In
the light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court finds no
appearance of a violation of the rights and freedoms set out in the
Convention or its Protocols arising from these complaints.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Joins to the merits the
Government’s non-exhaustion objection regarding the alleged
denial of access to information and declares
the applicants’ complaint under Article 8 of the
Convention admissible and the remainder of the application
inadmissible;
Holds that there has been no violation of
Article 8 of the Convention;
Holds that it is not necessary to rule on the
Government’s above mentioned objection.
Done in English, and notified in writing on 14 February 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech
Garlicki
Registrar President
