QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF|
|ALISON HARDY AND RODNEY MAILE||(CLAIMANTS)|
|(1) PEMBROKESHIRE COUNTY COUNCIL|
|(2) PEMBROKESHIRE COAST NATIONAL PARK AUTHORITY||(DEFENDANTS)|
|(1) DRAGON LNG LIMITED|
|(2) SOUTH HOOK LNG TERMINAL COMPANY LIMITED|
|(3) THE HEALTH AND SAFETY EXECUTIVE|
|(4) MILFORD HAVEN PORT AUTHORITY||(INTERESTED PARTIES)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
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(Official Shorthand Writers to the Court)
MR J LITTMAN (instructed by Pembrokeshire County Council) appeared on behalf of the 1st DEFENDANT
MR T STRAKER QC AND MR P BROWN (instructed by Eversheds) appeared on behalf of the 2nd DEFENDANT
MR R HARRIS QC AND MS C PATRY (AND MR E ROBB FOR JUDGMENT ONLY) (instructed by Berwin Leighton Paisner) appeared on behalf of the 1st INTERESTED PARTY
MR N PLEMING QC AND MR S TROMAN (instructed by Norton Rose) appeared on behalf of the 2nd INTERESTED PARTY
MR J HYAM (AND MS H MCMAHON FOR JUDGMENT ONLY) (instructed by Treasury Solicitor) appeared on behalf of the 3rd INTERESTED PARTY
MR R PRICE-LEWIS QC (AND MR J MAURICI FOR JUDGMENT ONLY) (instructed by Morgan Cole) appeared on behalf of the 4th INTERESTED PARTY
HTML VERSION OF JUDGMENT
Crown Copyright ©
"Grant of a hazardous substances consent in respect of the terminal to be operated by the first interested party and numerous other permissions as set out in the grounds.
Date of decision
7 December 2004 (and previous)
Name and address of the court, tribunal, person or body who made the decision to be reviewed
Decision of 7.12.4: the first defendant; other decisions, first and second defendants."
"79. As explained in the Appendix at section A6 the misleading information distributed as part of the consultation in relation to the LNG terminals (particularly in relation to the marine and onshore risks) lulled local people into what they now realise was a misplaced lack of concern about the proposals under consideration.
"80. Likewise, they took at face value the ambit of what was being proposed and consulted on (ie the LNG terminals themselves) and not the true larger project including the pipeline, etc as it now appears.
"81. The Claimants and others thus did not initially appreciate the full nature of what is being contemplated, nor its implications.
"82. When they began to do so, and undertook their own investigations, they realised the full implications of the proposals.
"83. They then sought legal advice. Letters before Claim were written to [the first and second defendants] on 22.12.04 with supplementary letters on 7.01.05... The Responses were received on 25.1.05... Emergency public funding to bring the challenges was granted on 1.12.04.
"84. The Claimants submit that, to the extent that the decisions they challenge were taken more than 3 months ago, time should be extended in all the circumstances. In considering that matter the court will need to give effect to the obligation on it (as explained by the ECJ in [R (Wells) v Secretary of State for Transport, Local Government and the Regions  1 CMLR 31  Env LR 528]) as an organ of the Member State to exercise its powers to secure compliance with the requirements of the EIA Directive. The Court should also have regard to the nature of the challenge and of the concerns raised by residents."
"Misleading information was distributed as part of the consultation in relation to the LNG terminals: In particular the claim was made on a number of occasions that:
LNG when spilled will quickly evaporate and form a visible cloud of condensing water vapour that makes it look like fog. Because it is lighter than air it disperses quickly and is not easy to ignite."
"(1) There is to be an oral hearing of the Claimants' application for permission which will focus principally on the issue of delay: the Claimants' reasons for it, and the practical implications for the Interested Parties.
"(2) The parties must file and serve Skeleton Arguments dealing with this issue not less than 4 days before the hearing.
"(3) The Claimants' Skeleton Argument must clearly identify which decisions they seek permission to challenge, distinguishing between those decisions issued in respect of
(a) the South Hook (or Exxon Mobil) site, and
(b) the Dragon (or Petroplus) site,
And giving in each case the date of the relevant decision.
"(4) Within 14 days of the date of this Order:
(a) Each of the Claimants must file and serve a further witness statement giving particulars of why the matters referred to in paragraphs 79-82 of the Claim Form caused them to delay commencing proceedings.
(b) The First Interested Party must file and serve a witness statement giving particulars of the matters referred to in paragraph 127 of its Summary Grounds, and the letter dated 6th April 2005 referred to therein.
(c) The Second Interested Party must file and serve a witness statement giving particulars of the matters referred to in paragraph 9 of its Summary Grounds.
"(5) Any evidence in reply to the witness statements referred to in (4) above is to be filed and served within 7 days of receipt of the relevant statement..."
"In many cases a rolled-up permission and substantive hearing is appropriate, but in the circumstances of the present case it is sensible to focus specifically upon delay, albeit against the background now crystallised in the Claimants' Core Bundle and the Second Defendant's Bundle."
By that time those bundles had been added to the 8 background volumes.
"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."
"Promptness is simply a function of the factors, ranging from the systemic to the idiosyncratic, which affect the fairness of letting a particular application proceed in a particular situation after a particular lapse of time; and these will ordinarily be the same factors as determine whether there has been undue delay. The formal enlargement of time can in practice be reserved to applications made outside the three-month limit...
"But promptness, like undue delay, is not to be gauged simply by locating the earliest practicable opportunity and adding a short time for lawyers to advise and launch proceedings. It is crucially affected by the potential or actual effects of the passage of time on others. This is the reason for the particular pressure on applicants in many planning cases..." (See paragraphs 33 and 37 per Sedley LJ giving the judgment of the court).
"(i) Is there a reasonable objective excuse for applying late?
(ii) What, if any, is the damage, in terms of hardship or prejudice to third party rights and detriment to good administration, which could be occasioned if permission were now granted?
(iii) In any event, does the public interest require that the application should be permitted to proceed?"
(A) South Hook Site
(1) A planning permission granted by the second defendant on 12th November 2003.
(2) A planning permission granted by the first defendant on 18th December 2003.
(3)A hazardous substances consent granted by first defendant on 2nd April 2004.
(4)A hazardous substances consent granted by second defendant on 19th August 2004.
(B) Dragon site
(1)A planning permission granted on 19th March 2003.
(2) A planning permission granted for an extension on 10th September 2004.
(3) A planning permission granted for an amended scheme on 10th September 2004.
(4) A hazardous substances consent granted on 7th December 2004.
"We have been instructed on a preliminary basis by residents extremely concerned about the lawfulness of the permission(s) (specifically including though not necessarily limited to a permission dated 12th October) attaching to the above [LNG Terminals at Milford Haven]. We have yet to see proper papers of the matter, but to the extent that we have been able to understand the situation by telephone discussions, it is plain to us that there may be serious irregularities resulting potentially in the permissions concerned being quashed. One aspect appears to be inadequacies in risk assessments done in relation to the marine side of proposed operations.
We thought it would be helpful to write to you at this point to put you, and we understand, organisations who may be interested in this matter, on notice of these concerns..."
"You will be aware that residents are concerned about the acute potential danger posed by the proposed terminals. As documented by the Health and Safety Executive, there is the potential for a flammable gas cloud 'engulfing the densely populated developments of Milford Haven (town), Neyland, or Pembroke Dock'."
"We are not blind to the fact that the Exxon Mobil proposal received consent about eight months ago. We anticipate you might suggest that any challenge to that is now out of time. To pre-empt that, and quite apart from several points that would lead to the Court extending time for judicial review in any event, we would remind you of the obligations of your authority in relation to EIA as discussed in Wells v Secretary of State for the Environment (Jan 2004).
"Although not in the form of a judicial review protocol letter, we would welcome your comments on the points raised herein by return so that we can take further instructions. Particularly, if we have said anything factually incorrect, please let us know so time is not wasted.
"You can take it that, as presently informed, it is likely that judicial review proceedings will be taken by 12th January 2005, unless you can satisfy us that there is no substance to any of the concerns expressed."
Is there a reasonable objective excuse for applying late?
"51. As I have noted in paragraph 17(iii) above, the Judge, in paragraph 48 of his judgment, distinguished Wells in that, there, the issue was whether an earlier permission could be revoked or modified rather than whether it could be treated as invalid, an issue that is expressly reserved by the third ruling in Wells to be a matter for national courts applying their own procedural rules. For convenience, I repeat here part of the Judge's words that I have set out:
'What the Court said in Wells about the obligation to nullify the consequences of a breach of the Directive is not to be taken as calling into question the validity of earlier decisions which are no longer open to challenge under domestic law.'
"52. Mr Gordon [who appeared on behalf of the claimant] submitted that the Judge's ruling in that paragraph mis-characterised the European Court's ruling as giving overridding status to formal validity of earlier decisions by reference to member-state procedural autonomy. Such an outcome, he suggested, would render the ruling in Wells a 'dead letter'. He submitted that, on the contrary, the Court's reasoning in that case was that member-state procedural autonomy is subservient to the principle of effectiveness of EU law. This is how the Court put it at paragraph 70 of its judgment..."
Auld LJ then set out paragraph 70 of the ECJ's judgment. Having summarised the claimant's arguments Auld LJ continued in paragraphs 58 to 61:
"58. On the simple issue whether our domestic procedural rules infringe the EU principle of effectiveness by rendering the exercise of the relevant community rights 'impossible in practice or excessively difficult', my firm view is that it does not. It has to be remembered too that the European Court in Wells was simply concerned with EU law, not as to the position in national law; the conflict, if any, between the two was not resolved, because on remission of the case to the domestic court, the matter was resolved by a consent order.
"59. In considering whether a national procedural provision renders application of community law impossible in practice or excessively difficult, it is necessary, as the European Court stated in Peterbroeck, at para 14, to look at its role in its domestic context and in the light of the basic principles of the domestic legal system, including the principle of legal certainty. As to domestic rules of limitation, the Court has upheld the importance of giving certainty to public decisions by holding that the application of reasonable time limits for challenging them does not infringe the principle of effectiveness; see Case 33/76 Rewe v Landwirtschaftskammer Saarland  ECR 1989, where the Court, at 1997, stated:
'Applying the principle of co-operation laid down in Article 5 of the Treaty, it is the national courts which are entrusted with ensuring the legal protection which citizens derive from the direct effect of the provisions of Community law.
Accordingly, in the absence of Community rules on this subject, it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which citizens have from the direct effect of Community law, it being understood that such further conditions cannot be less favourable than those relating to similar actions of a domestic nature.
In the absence of... measures of harmonisation the right conferred by Community law must be exercised before the national courts in accordance with the conditions laid down by national rules.
The position would be different only if the conditions and time-limits made it impossible in practice to exercise the rights which the national courts are obliged to protect.
This is not the case where reasonable periods of limitation of actions are fixed.'
"60. Moreover, there is authoritative domestic and EC authority for the proposition that proceedings for judicial review afford adequate protection for community law rights in respect of the validity of public actions; see on this issue Bourgoin SA v Ministry of Agriculture [QB] 716, CA, per Parker LJ and Nourse LJ at 785BE and 789G-790D respectively; and Upjohn Ltd v Licensing Authority established by the Medicines Act 1968  1 WLR 927, ECJ, at paras 33-37.
"61. Applying those principles to the facts of this case, if either of the two outline planning permissions required and/or were not the subject of valid screening exercise, there was a clear domestic remedy, if exercised promptly, for quashing either of them and/or the screening opinion at the leisure park outline permission stage. The domestic requirement of promptness in the exercise of the remedy, as Miss Robinson observed, strikes a reasonable balance between the need to provide a remedy and, in this instance, the public interest in the effective administration of planning controls and legal certainty. Accordingly, in my view, this challenge to the reserved matters screening opinion was not deprived of effect by the Council's reliance on the formal validity of the outline permissions and the screening opinion in relation to the latter, since they had been challengeable by judicial review, if sought promptly - a sufficient remedy as a matter of community law."
What, if any, is the damage in terms of hardship or prejudice to third party rights and detriment to good administration which would be occasioned if permission were now granted?
Hardship/prejudice to third parties
Detriment to Good Administration
"But a further reason for the relative infrequency of decisions based on good administration is in our view that it can come into play only (a) where undue delay has occurred, and (b) - in practice - where the consequent hardship or prejudice to others is insufficient by itself to cause relief to be refused. In such a situation it can rarely, if ever, be in the interests of good administration to leave an abuse of public power uncorrected. Indeed Fordham records the decision of May J in R v Mid-Warwickshire Licensing Justices, ex parte Patel  COD 251 that, despite undue delay, the interests of good administration were served not by withholding but by granting relief."
That passage in the Court of Appeal's judgment is obiter because the court had concluded that there was no undue delay in that case (see paragraph 40 of its judgment).
Does the public interest require that the application should be permitted to proceed?