England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT at LEEDS

		Royal Courts of Justice Strand, London, WC2A 2LL
		01/11/2012

Mr Justice King:

1. By this claim for judicial review, the claimant seeks to challenge the decision of the defendant, the Marine Management Organisation, given by letter dated the 23 December 2010, refusing to allow the claimant's application for a Harbour Revision Order ('HRO') to be made under the material provisions of the Harbours Act 1964 (as amended) ('the Act') 'to proceed further'. A draft of the order sought headed 'Immingham (Humber Oil Terminal) Harbour Revision Order 2011' was contained within the application.
2. The application concerned the Immingham Oil Terminal ('the Terminal') on the Humber Estuary, the major part of which currently falls within the statutory harbour for the Port of Immingham ('the Port') for which the first interested party (ABP) are the statutory harbour authority and the freehold owners of the land making up the Terminal. The Terminal itself principally comprises a jetty, pipelines and an oil terminal. Hitherto the Claimant has been the tenant of the land in question under leases granted by ABP.
3. The defendant is an executive non departmental body recently established under the Marine and Coastal Access Act 2009 which since April 2010 has exercised the decision making powers and functions of the Secretary of State in relation to harbour orders, these having being delegated to it by the Secretary of State by the Harbours Act 1964 (Delegation of Functions) Order 2010 (SI 2010/674). These functions were previously exercised by the Department for Transport. As will be seen the DfT became involved in this case originally as the prospective decision maker (on 1 October 2009 there was a meeting between the claimant and the department regarding the possibility of seeking an HRO in respect of the Terminal) but latterly was playing a new role as consultee, sending the defendant a letter of objection to the claimant's application, dated 27 September 2010, asserting amongst other things that 'an HRO cannot be used to create a new harbour from within an existing one, by turning a body which is not currently a harbour authority into a harbour authority' and 'there is then the issue of the principle of a forcible takeover of a harbour authority jurisdiction. This being an unusual occurrence to say the least.'
4. The claimant company is a joint venture company operated by two oil companies, namely Total UK Limited (Total) and ConocoPhillips Limited (CoP) who respectively operate two nearby oil refineries serviced by the Terminal, namely the Lindsay Oil Refinery and the Humber Oil Refinery. The evidence is that the refineries account for 25% of the refining capacity of the United Kingdom and a significant proportion of the country's oil supplies are handled through the facilities of the Terminal. It is part of the claimant's case that the maintenance of supplies to and from the refineries is of critical national importance. Hitherto, for the past 40 years or so, the Terminal has been operated by the claimant, through another joint venture company of the two oil companies, Associated Petroleum Terminals (Immingham) Limited ('APT') exclusively to service these oil refineries by facilitating via the Terminal the transportation of crude oil and fuel/petroleum products to and from the refineries. This has been achieved pursuant to leases, easements and wayleaves granted by ABP and Network Rail to the Claimant.
5. The application for the Harbour Revision Order was made on the 30 June 2010. The effect of the proposed order would be to bring about a geographical division of the existing Port of Immingham. It would remove the Terminal from the jurisdiction of ABP as harbour authority and establish the claimant as a new harbour authority for the Terminal and associated landside infrastructure, leaving ABP as the harbour authority for the remainder of the Port. As the Decision Letter of the defendant expresses it 'The proposed order seeks to transfer ownership of part of Port of Immingham from (ABP) to (the Claimant)'. The power of the defendant to grant an HRO to this effect is at the centre of the controversy between the parties in these proceedings. There would be important attendant property consequences in that land making up the Terminal, currently owned by ABP, would be compulsorily transferred to and acquired by the claimant.
6. The second interested party, the Oil and Pipelines Agency ('OPA') is an executive non-departmental body, created by the Oil and Pipelines Act 1985, sponsored by the Ministry of Defence and is responsible as managing agent for the government's pipelines and storage systems, ('GPSS'), a strategic defence asset. Its functions are said to include overseeing all aspects of the operation and maintenance of the GPSS, ensuring that UK military requirements for aviation fuel are met. Its particular interest for present purposes is in the South Killinghome Jetty within the Port although not within the terminal to be the subject of the HRO. This is described by the OPA as the only direct marine access controlled by the Secretary of State for Defence into the GPSS, hence it is an essential means of access for imported oil product and of considerable strategic importance. It is said that the OPA has taken an active part in these proceedings because (to quote its skeleton argument at paragraph 4) 'it is concerned that the (1964 Act) is being used to expropriate part of the Port and that the establishment of multiple harbour authorities for the Port in these circumstances might jeopardise the effective operation of the Jetty'.

Background

7. The background to the claimant's decision to make such application was the breakdown in negotiations between the claimant and their landlords, ABP, for the terms upon which the leases and wayleaves were to be renewed. This failure to agree terms led to the claimant's leases and pipeline wayleaves coming to an end on 31 December 2009, which in turn led to the commencement of separate and ongoing proceedings under the Landlord and Tenant Act 1954 between the claimant as tenant and ABP as landlord, during which the claimant's leases and wayleaves have been held over by operation of law.
8. These proceedings were still ongoing as at the date of the hearing before me although by then there had been a judgment by Vos J reported as Humber Oil Terminals Trustee Ltd v Associated British Ports [2011] EWHC 2043(Ch) determining a preliminary issue, in ABP's favour, arising under the defence raised by ABP as landlord under section 30(1)(g) of the 1954 Act, that it intended to occupy the holding 'for a purpose or partly for purposes of a business to be carried on by them'. If this defence were to be successful, the outcome would be that the claimant would be denied a new lease, an outcome not to the liking of the claimant and its parent oil companies not least because the first interested party it seems is minded to occupy and manage the terminal itself with a view both to the maintenance of supply to the refineries and to opening the Oil Jetty to third party users, whereas the Claimant has been anxious to renew the leases and maintain the status quo.
9. The critical finding of Vos J at paragraph 146 is in these terms:

'(i) ABP intends to occupy the IOT for the purposes or partly purposes of a business to be carried on by it at the IOT;

(ii) ABP intends to occupy the IOT for the purposes or partly for the purposes of a business to be carried on by it at the IOT at the termination of the Lease, whenever that occurs. The most likely circumstances of that occupation involve ABP entering into a commercial arrangement with HOTT (the claimant) whereby HOTT pays ship and cargo dues and APT operates for ABP the cargo facilities at the IOT. But even if that does not occur, it is likely that ABP will occupy the IOT from the termination of the Leases for the purposes of providing port facilities to third party oil companies or traders.'

10. I should also record the parliamentary intention and policy of the 1954 Act, relating to the renewal of leases, in providing the exception under section 30(1)(g), as found by Vos J. in an analysis with which I agree. Parliament has in effect struck what it regards as a fair balance between the business interests of the tenant and those of the landlord. Thus at paragraph 143, Vos J. puts the matter thus:

'but here Mr Dowding brings the policy of the 1954 Act into play, submitting that the legislation cannot have been intended to allow a landlord to expropriate a tenant's businesses and assets. This is a pejorative way of putting the point. The 1954 Act was indeed enacted … to 'protect the business interests of the tenant in particular as regards his security of tenure' but section 30(1) (g) provides a significant exception to that protection. Tenants are to be allowed security of tenure if they have established themselves in business in leasehold premises so that they can continue to carry on their business there … But they are not allowed such protection at the termination of their lease if the landlord is able to establish his intention to re-occupy the holding for the purposes of his business. This exception is not a charter for expropriation. It is a function of another aspect of the policy of the legislation, to the effect that landlords should be entitled to their land back, notwithstanding the tenant's security of tenure, if they genuinely wish to use that land for their own business purposes (section 30(1)(g)).'

11. I will return to the existence of this ongoing landlord/tenant dispute and the availability of the process under the 1954 Act to resolve this dispute, when considering an issue raised in these proceedings that the application for an HRO has been for an improper purpose outwith the purposes of the 1964 Act, namely a dominant purpose to circumvent the procedures under the 1954 Act relating to the renewal of leases, and to obtain a commercial advantage over the landlord in its dispute with its existing landlord over the terms of its continuing use/occupation of the land on the expiry of current lease and other contractual arrangements. However for present purposes what is important to record is that the claimant both in the Statement of Justification accompanying the HRO application and in the Statement of Facts and Grounds (SFG) in these proceedings has been quite open in its position that it applied for the HRO in the terms it did, in order that it should be able to continue to have exclusive possession, use and control of the Oil Terminal and hence sole control over the management of the transportation of supplies through the Terminal to the refineries of its parent companies, although it would say it did so to further the statutory purpose of a HRO, namely that of achieving efficiency and economy in the management of a harbour.
12. Thus in the Claimant's statement of facts and grounds: Trial Bundle volume 1, page 10, reflecting the Statement of Justification at 4.1.1 to 4.1.4:

'9. … The Trustees have for the last 40 years facilitated and optimised the efficient and safe movement of crude oil and fuel to and from the Refineries to the Terminal. This is a highly complex and technical operation which requires the Terminal to be operated as a part of a shared and integrated system with the Refineries … The efficiency of the Refineries operation depends on unfettered access to and complete control of the Terminal.

10. To this end, the Trustees have operated the Terminal pursuant to leases, easements, and wayleaves granted by ABP and Network Rail. However the leases and pipeline wayleaves granted by ABP to the trustees were recently terminated by ABP and came to an end on 31 December 2009 (although they are being held over by operation of law pending resolution of an application to the courts). The Trustees understand that it is ABP's intention itself to assume the management and operation of the terminal. Although the trustees have sought to agree the terms of a new lease of the terminal with ABP so as to enable them to continue to operate it themselves, it has not been possible to agree reasonable and satisfactory terms.

11 As things presently stand therefore the Trustees would have no alternative but (if possible and permitted) to continue to use the Terminal as a captive customer of ABP as a monopoly supplier of port facilities. This would mean that the Trustees and the Refineries would be entirely dependent upon ABP's management of the terminal and the prices set by ABP. Whatever its experience in ports elsewhere, ABP has no experience of the highly complex task of operating the terminal and ensuring that it is run in an integrated manner with the Refineries.

12 In the light of the above and in the absence of a suitable arrangement on a negotiated basis, the Trustees considered it was necessary and beneficial to remove the Terminal from the Port of Immingham (and therefore from ABP's control as harbour authority) and create a new harbour authority comprising just the Terminal, which would be under the Trustees' control as a new harbour authority. Indeed the Trustees considered that there is a compelling case for doing so.'

13. And in the Statement of Justification:

'… Requirement for acquisition of land from ABP

6.5 HOTT's leases from ABP were granted in 1966 for a term of 40 years and HOTT benefits from security of tenure pursuant to the 1954 Act. HOTT have been in without prejudice negotiations with ABP for over three years in an attempt to secure the renewal of the Lease. However ABP have demanded substantial increases in rent. HOTT believes the sums sought to be far above fair market value. Negotiations have not progressed materially for the last two years and there has consequently been a breakdown in negotiations despite repeated attempts by HOTT to reach terms agreeable to both parties.

6.6 ABP served notices under section 25 of the 1954 Act on 2 January, 24 June and 24 June 2009 confirming they would not be renewing HOTT's leases and that the leases would accordingly terminate on 31 December 2009. ABP has informed HOTT that it is opposed to the grant of new leases as it is seeking to recover the land presently used by HOTT and to take over the operation and management of the Terminal for its own, as yet uncertain business project. For the reasons set out above this is not acceptable to HOTT and accordingly it seeks powers of compulsory acquisition over the land owned by ABP within the Order Land.'

14. I should add at this outset that it is nonetheless the claimant's case that it has a genuine belief and concern that if ABP were to take over the operation of the Terminal, especially if the Terminal were opened up to third party cargoes, the supply of oil products to and from the refineries would be imperilled, with consequential injury to the national interest, and would become inefficient or uneconomic. Hence the application is said to be within the overall statutory purpose of an HRO; reflected in section 14 (2)(b) of the Act (as to which see below). The claimant's case is that the claimant did not ask the defendant to make a HRO because such an order might be thought to be in the claimant's commercial advantage, it did so rather because to do so would achieve the statutory purpose. This is reflected in paragraphs 1.6-1.8 of the Statement of Justification, and put in the claimant's skeleton argument in these terms:

'40. There can be no doubt that, supported by expert advice, the trustees genuinely believe the proposed order to be justified … the statement of justification makes clear reference to the questions of efficiency and economy.

41. In essence the application for a harbour revision order proceeds on the realisation that were ABP to take over management and operation of the terminal it would be or become inefficient and uneconomic, or that is a realistic prospect. Consequently a harbour revision order is desirable in the interests of securing the improvement, maintenance or management of the harbour in an efficient and economical manner.'

15. Likewise in the Statement of Justification, this appears at paragraph 6.8:

'HOTT considers that there is a compelling case in the public interest for the compulsory acquisition of land to secure the outstanding land and property interests required to maintain their control of the Terminal facilities and therefore to ensure security of supply of oil to the UK.'

16. The point is further made by the claimant that in the Chancery Division proceedings the court was not concerned with such matters of efficiency or economy, since (as per Vos J. at para. 85) the court had to decide 'only whether ABP intend to occupy the IOT for its business, not whether that business will be successful or whether it will run less efficiently than it has hitherto under APT's management' although it appears to have been accepted that if ABP took over there would at least be problems with day to day co-ordination of pipeline logistics (see judgment at para 81). It is further emphasised on behalf of the claimant that its bona fides was nowhere doubted in the judgment of Vos J. My attention was drawn to paragraph 85 where the court expressly concluded that both experts called by the opposing parties expressed 'genuinely held, if conflicting opinions, as to the economic and practical viability of either ABP or a third party successfully operating the IOT, and as to ABP being able to expand capacity at the IOT and successfully to introduce competitive business there'
17. In any event, the overall submission made in this context by Mr Straker QC on behalf of the claimant is that the question whether its application in truth fell within the statutory purpose of section 14(2)(b) because of the likely outcome on efficiency and economy if ABP were to take over, which he conceded ABP might well contest, could not be disposed of summarily by the defendant at the outset upon receipt of the application but should be the subject of evidence and inquiry at a public enquiry under the procedures provided for in the Act which never happened in this case. A decision upon such question would be for the decision maker only after hearing such evidence. This is a matter to which I shall return when considering further the ground relied upon in the defendant's summary grounds of defence, strongly developed by both interested parties that the application was an 'improper one' and an HRO based upon it could not for that reason be granted.

The Statutory Scheme

18. Before considering the terms of the Decision Letter, I turn to the material statutory provisions relating to a Harbour Revision Order.
19. A 'harbour authority' under section 57(1) of the Act means any person in whom are vested under the 1964 Act or any other Act or under secondary legislation 'powers or duties of improving, maintaining or managing a harbour'.
20. 'Harbour' under section 57(1) has a wide meaning. It means: 'any harbour, whether natural or artificial, and any port, haven, estuary, tidal or other river or inland waterway navigated by sea-going ship', and includes a dock and wharf. It is accordingly common ground that harbours within the meaning of the Act are much more than water surrounding piers or jetties and typically have landward interests as well as seaward interests, and will invariably include land over which a harbour authority will exercise its statutory function.
21. Again, 'harbour operations' as defined in section 57(1) include the '(c) the handling … of goods on harbour land' and '(d) the movement of goods … within the limits within which the person engaged in improving, maintaining or managing a harbour has jurisdiction'.
22. Thus I have no doubt – and this was not contested by any of the opposing parties – that in principle the Oil Terminal which was the subject of the claimant's application is capable of constituting a harbour in its own right.
23. I equally have no doubt that in principle the use to which the claimant has been putting, and operations which it has hitherto been carrying on at, the Oil Terminal through the mechanism of the leasing arrangements with ABP and its predecessor, and through a joint operating agreement between the parent oil companies and their two joint venture companies (the claimant and the claimant's operating company APT) have had as their fundamental purpose, purposes which are capable of being characterised as, or as Mr Straker put it, can 'in another context' be described as, 'the use of a harbour for harbour purposes.' That is to say the use of the demised premises as a jetty for the loading and unloading of sea-going ships carrying petroleum, refined or processed, or intended to be refined and processed at the two refineries, and the carrying out of operations pertaining to the transfer and control of the oil which is to be received or shipped. (On all this see the user provision in the lease in question, and the joint operating agreement, which was evidenced before me through the witness statement of Mr Paul Robson, the manager at the Lindsay Oil Refinery and a director both of the claimant and APT). It is on this basis that the claimant contends that its application for an HRO was directed to the improvement, maintenance and management of a harbour (it would say (for the purposes of section 14(2)(b)) in an efficient and economical manner) and further directed to the facilitation of the transport of goods by sea (again it would say, for the purposes of the sub-section, efficiently and economically).
24. The Act provides for the making of a number of different harbour orders designed in the round to enable existing arrangements made in respect of harbours to be revised, namely: a Harbour Revision Order under section 14, a Harbour Empowerment Order under section 16, and a Harbour Reorganisation or Amalgamation Order under section 18, allowing for a group of harbours, each being separately maintained by a single authority, to be amalgamated if it would be efficient and economical to do so. Section 15 allows the Secretary of State, of his own motion, to make a harbour revision order for a limited object ('Ministers' powers to make of their own motion, orders for limited purposes for securing harbour efficiency'). I would not disagree with Mr Straker's overall submission that on proper analysis, Parliament in making provision for these different harbour orders has introduced as their fundamental purpose a 'a touchstone of efficiency and economy'. These proceedings are of course concerned primarily with the provisions governing Harbour Revision Orders, although the availability of an application for a Harbour Empowerment Order as an alternative remedy is raised by those opposing this claim.
25. The procedures for making Harbour Revision Orders and Harbour Empowerment Orders are set out in Schedule 3 of the Act as applied by section 17. Paragraph 7 of the Schedule provides for the form in which an application is to be made and paragraphs 10 to 14 provide for the giving of notice of an application inviting the lodging of objections to, among others, those who will be affected by any order for the compulsory acquisition of land (see paragraph 11) and (see paragraph 13) if, as in this case, the applicant is not 'the harbour authority' upon 'that harbour authority'.
26. Under paragraph 9 'the Secretary of State shall not consider an application for a harbour revision order unless the applicant complies with any direction under paragraph 8(1) and with any relevant requirements of paragraphs 10-14.' It is not however suggested that the claimant has not complied with any of these requirements.
27. Paragraph 18 provides for the holding of an Inquiry if an objection has been made and not withdrawn, before the decision on the application is ultimately made under paragraph 19 under which, amongst other matters, the report of any Inquiry, is first considered. Pertinent however for present purposes are the provisions of sub-paragraph (1A) (a) of paragraph 18 that paragraph 18 does not apply if, amongst other things:

'(a) the appropriate authority decides that the application is not to proceed further'

Harbour Revision Orders

28. The statutory limitations on the powers of the defendant to make the HRO sought in this case were threefold relating to; (i) objects, (ii) the status of the applicant, and (iii) purpose. I take each in turn.

Objects

29. The effect of section 14(1) is that order had to be one for achieving one or more of the objects specified in Schedule 2 of the Act (the objects allowed for in section 14(2A) concerning the repeal of obsolete statutory provisions and the consolidation of statutory provisions of local application did not apply). It is not in dispute for present purposes that the power to make an HRO was restricted to those which seek to achieve one or more of these objects. This must flow from the very terms of section 14(1) which provides as follows:

'14 Minister's powers, on application of harbour authorities, or others, to make orders for securing harbour efficiency, etc

(1)Subject to the provisions of this section and to the following provisions of this Act, there may, in relation to a harbour which is being improved, maintained or managed by a harbour authority in the exercise and performance of statutory powers and duties, be made by the appropriate Minister an order (in this Act referred to as a 'harbour revision order') for achieving all or any of the objects specified in Schedule 2 to this Act …'

Those objects set out in Schedule 2 by their terms refer to what an order will do, that is the changes it will make. I set out in an Annex to this judgment the entirety of Schedule 2.

30. In its Statement of Justification accompanying its application, the claimant said that the application was 'made pursuant to and in order to achieve the objects set out in paragraphs 1, 5 and 7 of the Schedule 2'. These are as follow:

1. Reconstituting the harbour authority by whom the harbour is being improved, maintained or managed or altering their constitution, or establishing as the harbour authority. in lieu of the existing one, an existing body designated in that behalf or a body established for this purpose.

5. Transferring from the authority to another or to the authority from another all or any of the property vested in, as the case may be, the authority or that other and held for the purposes of the harbour, and so far as they relate to the transferred property, all or any of the duties and powers imposed and conferred on, as the case may be, the authority or that other by a statutory provision of local application affecting the harbour

7. Conferring on the authority power to acquire (whether by agreement or compulsorily) and described in the order, being land required by them for the purpose of its being used as the site of works that they have, or will by virtue of the order have, power to execute or for some other purpose of the harbour.

31. Mr Straker also seeks to rely upon the 'sweeping-up' provision in paragraph 17, viz:

'Any object which, though not falling within any of the foregoing paragraphs, appears to the appropriate Minister to be one the achievement of which will conduce to the efficient functioning of the harbour'

Status

32. Secondly subject to section 15 (allowing for orders made by the Minister of his own motion), a written application has to be made by a limited class of person: either an existing harbour authority or a person 'with a substantial interest'. See section 14(2)(a). The claimant says it must qualify as being a person with a substantial interest.

Purpose

33. Thirdly there is what can be described as a reasons or purpose test which has to be satisfied under section 14(2)(b), directed, among other things, to the 'securing (of) the improvement maintenance or management of the harbour in an efficient or economical manner.' Thus section 14(2)(b) provides as follows:

'14(2) subject to the next following section, a harbour revision order shall not be made in relation to a harbour by the appropriate Minister –

' …

(b) unless the appropriate Minister is satisfied that the making of the order is desirable in the interests of securing the improvement, maintenance or management of the harbour in an efficient and economical manner or of facilitating the efficient and economic transport of goods or passengers by sea [or the interests of the recreational use of sea-going ships]…'

34. I have already set out how the claimant says this purpose test is met in the context of its proposed HRO. I ought to add that section 14(2B) provides that nothing in subsection (2) (b):

'shall prevent the making of an order for facilitating

(a) the closing of part of the harbour

(b) a reduction in the facilities available in the harbour, or

(c) the disposal of property not required for the purposes of the harbour

if the Minister is satisfied that the making of the order is desirable on other grounds'.

Harbour Empowerment Order ('HEO') under section 16

35. I would agree with Mr Straker that from the wording of the material section HEO orders are directed in part at the creation of an entirely new harbour. Nonetheless such an HEO would also allow for the creation of a new harbour made up of part of an existing harbour, and for the empowering of a new harbour authority for the new harbour, which is the object which the claimant sought by the proposed HRO. But, again as Mr Straker stressed, a HEO is directed at the provision of powers in circumstances where no existing body has sufficient powers to improve, maintain or manage a harbour.
36. Thus section 16 provides as far as is material (any emphasis by underlining is the emphasis of this court):

'16. Ministers' powers on application of intending undertakers, or others, to make orders conferring powers for improvement, construction, etc, of harbours

(1) In a case where a person is desirous of securing the achievement of any of the following objects, namely:

(a) the improvement, maintenance or management of a harbour …

(b) …

(c) …

but neither he nor any other person has powers or sufficient powers, to secure it, or to do so effectively, he may make written application to the Minister for the making by him of an order conferring on the applicant, some other designated person or a body to be constituted for the purpose by the order (according as may be specified by the application) all such powers (including in particular power to acquire land compulsorily …) as are requisite for enabling that object to be achieved …

…

(5) Neither the Minister … shall make a harbour empowerment order unless he is satisfied that the making thereof is desirable in the interests of facilitating the efficient and economic transport of goods or passengers by sea …'

The Decision Letter of 23 December 2010

37. The Decision letter in its critical parts stated as follows:

'Background

The proposed order seeks to transfer ownership of part of the Port of Immingham from Associated British Ports to Humber Oil Terminals Trustee Ltd. …

Summary of Decision

The MMO has now considered the application and has decided that the application is not to proceed further. The reasons for this are now outlined.

Legal Tests

The Objects within Schedule 2

The application is for a harbour revision order under section 14 of the Act. This section allows an order to be made for achieving all or any of the objects specified in Schedule 2 to the Act.

A Statement of Justification accompanied the application. This stated that 'the application is made pursuant to and in order to achieve the objects set out in paragraphs 1, 5 and 7 of schedule 2'

The MMO considers that the proposed order does not seek to achieve the objects set out within those three paragraphs nor any of the objects under Schedule 2.

As such, the MMO has decided that the application is not to proceed further.

Person making the Application

Section 14(2)(a) provides …

Given that the proposed order does not seek to achieve any of the objects for which a harbour revision order may be lawfully made, the MMO has not considered whether or not the applicant satisfies the test in section 14(2)(a).

Interests of the Harbour

Section 14(2)(b) provides that the MMO shall not make an order unless it is satisfied …

Again, given that the proposed order does not seek to achieve any of the objects for which a harbour revision order may be lawfully made, the MMO has not considered whether or not the application satisfies the test in section 14(2)(b).

Objections and Representations

The MMO received 29 objections and representations about the proposed order. Except where these relate directly to the objects for which a harbour revision order may lawfully be made, the MMO has taken no view on the merits or otherwise of these objections and representation.

Decision

For the reasons outlined above, the MMO considers that the proposed order cannot be lawfully made and has decided that the application is not to proceed further.'

The Decision letter then proceeded to refer to the letter from those acting on behalf of the claimant to the defendant dated 20 December 2010 suggesting that as an alternative a HEO under section 16 could be submitted, and stated that the defendant made no comment on this suggestion other than this would need to be a new application following the normal statutory procedures.

38. Thus the Decision letter makes clear that the defendant had decided that the application was not to proceed further on the sole basis that the proposed order did not come within any of the objects of schedule 2 and accordingly the proposed order could not lawfully be made. It expressly states in effect that there had been no consideration of the merits of the application either by reference to the status of the claimant under section 14(2)(a) or the purposes test under section 14(2)(b) and that it had taken no view on the merits or otherwise of the 29 objections and representations which it had received 'except where they relate directly to the objects for which a harbour revision order may be made'.
39. This letter in my view has in these circumstances to be read as meaning that the sole ground upon which the decision was made was that none of the objects relied on by the claimant nor any of the other objects in the Schedule could be interpreted as conferring a power to establish a new harbour authority in lieu of an existing one in respect of part only of the harbour.
40. The letter does not on its face refer to a further ground for the decision not to proceed further, namely that although the power was conferred, it had been decided that the power could not be lawfully exercised since to do so would be to exercise the power for an 'improper purpose outwith the policy and objects of the statute', namely (to summarise what is said elsewhere) to facilitate the claimant's alleged strategy to exert pressure on ABP in its commercial negotiations for the terms of a new lease and its continuing use of ABP's land and infrastructure. Although the summary grounds of defence undoubtedly seeks to raise this 'improper purpose' defence to the claim (see in particular paragraphs 23 to 28 concentrating on the claimant's motivation in seeking an HRO) and was pursued vigorously in argument before me, and although further raised in letters of objection received by the defendant in to which the claimant was copied, when pressed, Mr Maurici on behalf of the defendant conceded that no formal decision on this ground had ever been taken.
41. This said the Decision Letter did not give any express explanation why the conclusion had been reached that the proposed order did not come within any of the objects of schedule 2. And in response to the claimant's pre-action protocol letter, those acting on behalf of the defendant gave no further amplification, beyond stating that 'the MMO formed the view that the application is unlawful and does not lawfully apply the requirements of section 14 of the Harbours Act' and stating that in so doing 'it agreed the view expressed by amongst others the Department of Transport in their letter dated 27 September 2010 which letter you were sent and which you chose not to respond to'.

The grounds of challenge

42. Four grounds of challenge to this decision are raised:

1. Misdirection: the defendant has misdirected itself and/or acted irrationally in deciding the HRO could not lawfully be made.

2. Lack of power to reject the application summarily at a preliminary stage.

3. Failure to give adequate and intelligible reasons for its decision.

4. Failure to afford the claimant a fair opportunity to make representations before making the decision to reject summarily.

The grounds of defence: Alternative remedies

43. In addition to resisting each of the grounds of claim and putting forward the additional 'improper purpose' defence, the defendant seeks also to resist the claim on the ground of the availability of alternative remedies. This is based on the doctrine that 'judicial review is a legal recourse of last resort and [a claimant] must exhaust any proper remedy open to him before the judicial review court will consider its case' (R. v. (Bancoult) v. Secretary of State for the Foreign and Commonwealth Office [2001] QB 1067, at 27.
44. Such alternative remedies are identified as first those under the 1954 Act, in so far as the claimant's purpose in pursuing an application for an HRO can properly be characterised as seeking to further its aim of obtaining acceptable lease renewal terms with ABP; and secondly an application for a Harbour Empowerment Order under section 16 of the 1964 Act which according to the defendant is the only appropriate way in which the claimant could seek to establish a new harbour compulsorily and constitute itself as the new harbour authority, albeit, as has been seen, under the terms of that section the claimant would have to demonstrate that 'neither he nor any other person has powers or sufficient powers' to secure the stated objectives or 'to do so effectively'.
45. An argument is also raised on prematurity in seeking to apply for judicial review when the proceedings under the 1954 Act were still ongoing and the commercial dispute between the claimant qua tenant and the 1st interested party (ABP) qua landlord was and is still unresolved. Mr Moules on behalf of the OPA in particular submitted that it was not for the defendant 'to pre-judge the outcome of the 1954 Act proceedings by considering an application for a forcible take over of the Terminal which was predicated on facts which at the time of the application, might never materialise, namely ABP assuming the management and operation of the Terminal'. He submitted that it was contrary to the intention of Parliament to enable an application for a HRO under the 1964 Act, 'to be made defensively', as is said has occurred in this case, 'to stave off the possibility of a contingency arising which at the time of the application had not yet arisen' namely ABP assuming the management and operation of the Terminal.

Correspondence/discussions prior to the Decision letter

46. Before turning to the individual grounds of challenge I should refer to some of the pre decision correspondence and meetings. I have already referred to the role of the DfT initially as a prospective decision maker in giving advice to the claimant before any application was made and then as a consultee writing a letter of objection into which the claimant's representatives were copied. In the letter of advice of 29 October 2009 to those representatives, the DfT expressly stated that:

'… it is evident that you have considered section 14 of the 1964 Act and Schedule 2, and you specifically refer to paragraph 1 of the Schedule. However paragraph 1 covers "establishing, as the harbour authority, in lieu of the existing one, an existing body designated in that behalf", and that would only be appropriate if responsibility for the whole of the existing harbour were to be transferred to HOTT which is not what they seek …

What would be needed is … a harbour empowerment order under s.16 to constitute a new harbour consisting of just the area over which HOTT want jurisdiction and to constitute HOTT as the harbour authority for it … However to be able to apply … HOTT would have to show … that neither they 'nor any other person has powers or sufficient powers, to secure' the achievements of the objects of the HEO set out in paragraphs (a) to (c) of s.16. It is reasonable to assume that ABP would contend strongly that they, ABP, do already have such powers and the fact that HOTT might not like the way ABP is exercising those powers is irrelevant. We have to say there seems no obvious answer to that.'

47. Then in a letter of the 27 September 2010 (the letter referred to in the defendant's response to the pre-action protocol letter) the DfT, as consultee to the defendant, reiterated the view that section 14 of the Act could not be used to grant the order sought by the claimant and the only way forward was by way of an HEO, in these terms:

'We take the view that it is not legitimate for section 14 of the Harbours Act (and Schedule 2) to be used to create a new harbour from within an existing one by turning a body which is not currently a harbour authority into a harbour authority for just part of the existing harbour.

It would seem that HOTT are relying on paragraph 1 of Schedule 2 to the 1964 Act. However, that paragraph covers 'establishing, as the harbour authority, in lieu of the existing one, an existing body designated in that behalf', and that would only be appropriate if responsibility for the whole of the existing harbour were to be transferred to HOTT – which is not what is being sought.

Our view is that a transfer of part of an existing harbour can only be made in a Harbour Revision Order under paragraph 5 of Schedule 2 to the 1964 Act, not paragraph 1, and so can only be made to a body which is already a harbour authority. Further, paragraph 5 of that Schedule does not in our view enable the MMO to establish a body which is not already a harbour authority as a harbour authority for this purpose.

Paragraph 5 covers 'transferring from the authority to another … any of the property vested in … the authority … and held for the purposes of the harbour and, so far as they relate to the transferred property, all or any of the duties and powers imposed and conferred on … the authority … by a statutory provision of local application affecting the harbour'. The words underlined show that that this includes transferring part of a harbour, with all associated functions (and the lack of any such words in paragraph 1 reinforces, by contrast, the view that paragraph 1 cannot be applied to just part of a harbour). However, just as the references here to 'the authority' mean 'the existing harbour authority' so the references to 'another' must mean 'another harbour authority'.

We conclude therefore that if the applicants want to be established as a harbour authority for just part of what is at present under ABP's jurisdictional harbour area this can only be done by a Harbour Empowerment Order (HEO) under section 16 of the 1964 Act, and the applicants must therefore show that the criteria in section 16, not those in section 14, are satisfied.

An HEO would constitute a new harbour consisting of just the area over which HOTT want jurisdiction and to constitute HOTT as the harbour authority for it, redefining the limits of ABP's jurisdiction accordingly under paragraph 6 of the Schedule. In these circumstances of course HOTT would have to show that neither they 'nor any other person has powers, or sufficient powers, to secure' the achievement of the objects of the HEO set out in paragraphs (a) to (c) of s.16 (1).'

48. The DfT letter did also proceed to mention a second issue namely the principle of a forcible takeover of harbour authority jurisdiction. It continued in these terms, similar to that already stated in its letter of 2009:

'… there is then the issue of the principle of a forcible takeover of harbour authority jurisdiction. This being an unusual occurrence to say the least, the Department does not have an established policy statement which covers these circumstances. We consider however that the onus must be on the applicants to demonstrate not just their suitability to become a harbour authority but additionally why such an event would be preferable to the existing position. This is consistent with the view that section 16 of the 1964 Act rather than section 14 is the correct mechanism for achieving such a change, since section 16 includes the requirement for the applicant to show that 'neither he nor any other person (such as the existing harbour authority) "has powers or sufficient powers to secure" - at all, or "effectively" - achievement of any of the objects listed in paragraphs (a) to (c) of section 16(1), as noted before '

The letter concluded that the DfT did not propose 'to offer a view at this stage on the merits of the justification the claimant had submitted in support of the application' but did state that they expected 'ABP to strongly oppose the application and that a public inquiry will follow where the parties can present their respective case for an independent assessment'.

49. It is clear therefore that the claimant was always made aware of what the attitude of the DfT was as regards the limited ambit of the objects under paragraph 1 of Schedule 2 and the need rather to apply for a HEO under section 16, albeit with the added and for it, difficult, limitation or requirement under which they would have to show the inadequacy of the powers of ABP, as the existing harbour authority.
50. Indeed, following a meeting of 5 November 2010, the lawyers acting for the claimant and the DfT met to discuss the DfT's views on section 14 of the 1964 Act and the possibility of the claimant pursuing instead an application for a Harbour Empowerment Order under section 16. Those representatives wrote to the defendant by letter dated 20 December 2010 (again referred to in the Decision Letter) in which they expressly declined to comment on the DfT's 'view as to the use of s 14 and its objects'. Rather they indicated that they were exploring the DfT's suggested alternative approach of applying for a HEO and set out a proposal to amend the current application so that it could be considered, in the alternative, as an application for a HEO under section 16.
51. In the event the claimant did submit an application for a HEO by application dated 29 July 2011 which was still pending at the date of the hearing before me.

Objections based on 'Improper Purpose'

52. Further, as indicated, the claimants were copied into the contents of the objection received by the defendant. These included the following:

From OPA (07.09.10)

'HOTT's motivation for moving for the draft HRO appears to be to attain by statutory means that which they have tried but so far failed to negotiate, on terms that are commercially acceptable; i.e. an extension of their rights of exclusive possession as tenants of the terminal from ABP'

From ABP (07.09.10)

'2 In seeking to acquire ABP's existing harbour undertaking compulsorily to create a single user harbour undertaking for private commercial purposes [HOTT's] application is misusing and therefore repugnant to, the objects within schedule 2 of the Harbours Act for which an HRO can be made; …

4 It is important at the outset to make clear the commercial reasons behind the application for the Order by the applicant. The application is quite simply an aggressive attempt by the applicant to circumvent existing legal proceedings currently before the court and which are the result of a commercial dispute between ABP and the applicant over the future use and proper value of the Terminal.'

From the UK Major Port's Group (07.09.10)

'HOTT appears to be seeking to use a statutory process to gain an interest in the harbour facility for which a separate legal remedy exists which we understand is currently being pursued by HOTT …

The particular concern of UKMPG members is that this Order is a transparent attempt to effect the compulsory acquisition of property from an existing harbour authority which is a purpose which is not within Schedule 2 of the Harbours Act 1964. Although paragraph 5 of the schedule 2 … authorises the transfer of the property of one harbour authority to another, it does not provide for a compulsory transfer and cannot have been intended to provide for compulsory expropriation of the harbour authority's property since there is no provision for the payment of compensation.'

Precedents

53. I should refer also to a number of previously made (or under consideration) Harbour Revision Orders relied upon by the claimant as precedents in support of the lawfulness of the order sought in this case, each being, it is said, examples of the revision of an existing harbour so that part of it transferred from the jurisdiction of the existing harbour authority to the jurisdiction of a new harbour authority.
54. Two relate to interrelated orders made by the defendant on 7 July 2011, namely the Weymouth (the London 2012 Olympic and Paralympic Games) Harbour Revision Order (SI 2011 No 1694) and The Portland (the London 2012 Olympic and Paralympic Games) Harbour Revision Order ( SI 2011 No 1693). These however on close analysis relate to a temporary extension of the jurisdiction of the Portland harbour authority into an area which was previously within the jurisdiction of the Weymouth harbour authority. In other words they relate to partial transfers of harbour as between existing harbour authorities. The defendant submitted that this was very different from the present case, putting the position thus:

'although these HROs have the effect of temporarily giving one existing authority some powers within another authority, these powers were amended by the agreement of both authorities, both of which already existed before the orders were made. This is substantially different from that presented in this case in which the claimant is seeking to acquire powers forcibly when not even yet a harbour authority. The HROs granted in the Weymouth and Portland case do not point to any inconsistency of approach on behalf of the MMO.'

55. The other two however, although the responsibility of the DfT when it had the functions now exercised by the defendant, undoubtedly relate to a transfer of part of an existing harbour to a newly created authority and accordingly provide for the establishment of a new harbour authority in lieu of the existing one in respect of part of the harbour. The first is the Port of Bristol Harbour Revision Order 1993 by which First Corporate Shipping Ltd were designated as harbour authority for the Port of Bristol other than the City Docks and Portishead Pier and Docks, in place of the Bristol City Council which remained harbour authority for those docks. The second has yet to be completed as an Order and is only a proposed order. However it has been accepted for the purposes of the legislative processes, including the holding of a public inquiry. This is the Port of Exeter Harbour Revision Order. It establishes a new harbour authority, the Exe Estuary Navigation Authority, in lieu of the existing one, Exeter City Council, for part of the harbour while the City Council remains harbour authority for the residue (that part known as the City Quay and City Basin Quay).
56. As regards these orders the DfT in its letter of the 27 September 2010 stated in effect that it had reached the view it now held, 'on fresh consideration of the issue'.

'We have noted the precedents cited by the applicants and accept that the Port of Bristol HRO 1993 substituted First Corporate Shipping Ltd in place of Bristol City Council as the harbour authority for part of a harbour. Our current view on fresh consideration remains as stated above. The application for the Exeter HRO has not yet been determined and so cannot act as a precedent.'

57. The Exeter order remains it seems retained by the DfT.
58. The defendant makes the point moreover that the Bristol Order was never challenged and could not now be challenged. Section 44 of the 1964 Act provides for a six week time limitation on any application to the High Court to quash the order and provides at subparagraph (3) that:

'Except as provided by this section, a harbour revision or empowerment order, or an order under section 15A of this act shall not, either before or after it is made, be questioned in any legal proceedings whatever.'

59. Mr Straker submits that these observations of the department and the defendant are of little consequence, and that in principle and on authority delegated legislation may be taken into account as persuasive authority on the meaning of an Act's provisions, albeit the extent of the permitted persuasive influence, and the question whether the Act and the Statutory Instrument have to be contemporaneous, remains on the authorities, controversial. However, he submits, and this I would accept, that the making of the orders, in particular the Bristol Order, provides some ('albeit possibly slight') support for the claimant's construction, if the court reaches the stage of deciding that in principle the words permit of the construction submitted by the claimant and the court is considering what supports or detracts from that view.

The court's conclusions

60. I turn to consider the grounds of challenge.

Misdirection

61. This ground raises the issue of construction, directed to whether the Objects within Schedule 2 allow for a power to establish a new harbour authority in lieu of an existing one in respect of part only of the harbour.
62. I have no doubt, subject to consideration of paragraph 17, that the critical object is that under paragraph one, viz;

'Reconstituting the harbour authority by whom the harbour is being improved, maintained or managed or altering their constitution, or establishing, as the harbour authority in lieu of the existing one, an existing body designated in that behalf or a body established for this purpose'

Object paragraph 5: the effect of section 14(4)

63 As indicated, paragraph 5 provides for the following object:

'Transferring from the authority to another or to the authority from another all or any of the property vested in, as the case may be, the authority or that other and held for the purposes of the harbour, and so far as they relate to the transferred property, all or any of the duties and powers imposed and conferred on, as the case may be, the authority or that other by a statutory provision of local application affecting the harbour.'

63. It is true that as regards the object under paragraph 5, section 14(4) of the 1964 Act provides that:

'In the case of a harbour revision order that provides for the establishment of a body as the harbour authority for the harbour to which the order relates in lieu of the existing one, references in paragraphs 2 to 17 of Schedule 2 to this Act to the authority (except in the case of the reference in paragraph 3 the references, other than the second, in paragraph 5 and the second reference in paragraph 11) shall be construed as referring to the body established by the order as the harbour authority, and in the said excepted case shall be construed as referring to the existing one.'

65 The effect of this provision would allow pursuant to paragraph 5 a Harbour Revision Order to transfer part or all of the existing harbour authority to a newly established harbour authority but this in itself cannot be interpreted as an object allowing for the establishment of a newly designated harbour authority. It must be a precondition of coming within object 5 that any 'new authority' is already properly established by the Harbour Revision Order by reference to some other object. I would agree that – again subject to arguments concerning paragraph 17 – this object is to be found if at all only in paragraph 1 (similar considerations apply in respect of paragraph 7).

66 On the other hand, I would accept that paragraph 5 does allow for division as between existing harbour authorities, and this is certainly one explanation for the Weymouth and Portland Orders made by the defendant, relied upon the claimant.

67 Hence one is back to the essential question raised in these proceedings of the proper interpretation of the object in paragraph 1. Does it allow for the establishment of a new harbour authority in substitution for another in respect of only part of the harbour currently under the jurisdiction of the existing harbour authority, allowing the existing authority to live on in respect of a smaller part as contended for by the claimant, or does it allow only for the wholesale substitution of one harbour authority for another and cannot be interpreted as providing for the establishment of a new harbour authority to replace part only of the existing authority?

Section 16 of the 1964 Act

64. As already indicated, it is conceded by the defendant that the Act does provide machinery for the establishment of a new harbour authority to replace part only of the existing authority but this is under the mechanism of a Harbour Empowerment Order under section 16 which however, as already set out, has a critical and significant additional hurdle over which any applicant has to over come if it is to satisfy the section: it not only has to satisfy a purpose test (see section 16(5)) similar to that in section 14(2)(b), but the effect of the wording of s16(1) is that he must demonstrate that the existing harbour authority does not have the powers or sufficient powers to secure (the stated object) or to do so effectively.
65. In other words the defendant does not dispute that in some circumstances it might be justified to subdivide large harbours and empower a new harbour authority to have jurisdiction over it but that is something for which, through section 16 of the 1964 Act, Parliament has enabled an HEO to be obtained, but only when an applicant is able to show that 'neither he nor any other person has powers or sufficient powers to secure it or to do so effectively'.
66. Mr Straker however submits that if this is the only statutory machinery available for this purpose, this produces a lacuna in the statutory provisions since it would not allow for division, and the creation of a new harbour authority for part, of an existing harbour, where notwithstanding the adequacy of the powers residing in the existing harbour authority, this is considered desirable in the interests of efficiency and economy and even if the existing harbour authority were agreeable or where it could be shown that a new harbour authority formed from a body with a substantial interest would better serve the interests of efficiency and economy.

The proper construction of paragraph 1

67. Ultimately I have concluded that the construction put by the defendant upon paragraph 1 of the Schedule 2 must be correct, in other words it does not provide a power to divide an existing harbour by establishing a new harbour authority in respect of part only of the geographical extent of the existing harbour. This is for two basic reasons.
68. First there is the language of the paragraph. It speaks of 'the' harbour authority by whom 'the' harbour is being managed etc. and then as an alternative to reconstituting the harbour authority or altering their constitution, establishing as 'the' harbour authority in lieu of the existing one, an existing body or a body constituted for that purpose.
69. The natural meaning of these words in my judgment is the wholesale replacement of the existing harbour authority by another in respect of the whole of the harbour ('the' harbour) managed etc. by that existing authority. I agree with the submission made by the defendant and the other interested parties that the ordinary meaning of 'in lieu of' is 'instead of' or 'in place of' and that to provide something 'in lieu of' of something else is to provide a substitute or alternative for it in its entirety, not merely to replace it in part. In this context I was referred to various dictionary definitions of 'in lieu of' (Burton's legal Thesaurus (4^th.ed) 2006) –'as a substitute for, as an alternative, as a proxy for, in place of, instead of …'; Oxford English Dictionary, 2011 'in the place, room, or stead of, in exchange or return for, …'). I was also referred to the observation of Lewison J in Ultraframe v Fielding [2005] EWHC 1638(Ch) in the context of a company law dispute, that the 'ordinary meaning' of the phrase 'in lieu of' is 'instead of'.
70. I would in this context agree with the submissions developed by Mr Drabble QC on behalf of ABP that further support for this interpretation can be found when considering the context in which the words falling for interpretation appear. They do so as an alternative to the reconstituting of the harbour authority or the altering of its constitution. These prior objects to which the establishment of a new authority in lieu is an alternative, plainly do not concern geographical division of the harbour managed by the existing authority, a proposition reinforced by the provisions of section 15(1) (a) of the Act to which I have already referred under which the Minister is enabled of his own motion to make a HRO for the purpose of achieving either or both of those prior objects. I agree with Mr Drabble that no part of paragraph 1 can sensibly be interpreted as being concerned with the geographical division of the existing harbour managed by the existing harbour authority. As he put it, the power to establish a new body in lieu of the existing authority is merely a somewhat radical way of altering the constitutional arrangements under which the harbour is managed.
71. It is not in my judgment necessary for the purpose of upholding the defendant's construction of paragraph 1 to read into it, words such as 'in respect of the entirety of the harbour' since this in my judgment is implicit both in the expression 'the' harbour and the expression 'in lieu of'.
72. Indeed, and this is my second basic reason, it is reasonable to assume that had Parliament intended to provide for a 'partial' replacement it would have included words to that effect such as 'or establishing as the harbour authority, in lieu of the existing one, in respect of all or part of the harbour, …'. The absence of such words is made the more significant by consideration of other aspects of the statutory scheme which has more than one example of Parliament making express provision, where it considered appropriate, for the revision of part only of an existing harbour and for the possible division of property as between harbour authorities. Thus paragraph 8A Schedule 2 refers to 'enabling the authority to close part of the harbour or to reduce the facilities available to the harbour'; paragraph 16A refers to 'Imposing or conferring on the authority duties or powers … for the conservation of the natural beauty of all or any part of the harbour.' Section 14(2A) of the Act allows, as already set out, for the closing of part of the harbour.'
73. The fact that paragraph 5 so heavily relied upon by the claimant itself, by reference to words 'all or any of the property' expressly contemplates the division of property as between harbour authorities and, having regard to section (14)(4), a division as between an existing authority and the body established by the HRO, far from assisting the claimant in its contentions of construction under paragraph 1, in fact in my judgment has the opposite effect. As already explained, it is not suggested that paragraph 5 is a free standing provision under which a new authority can be established, and paragraph 5 only comes into play if the body has properly established the HRO. This, as far as express provisions are concerned, can only be pursuant to paragraph 1 in which the draftsman chose to make no reference to possible division of the harbour managed by the existing authority. The absence of such express provision only reinforces in my judgment the correctness of the interpretation of paragraph 1 adopted by the defendant. Nor do I consider the insertion of the words in section 14(4) 'to which the order relates' in the sentence 'In the case of a harbour revision order that provides for the establishment of a body as the harbour authority for the harbour to which the order relates' can, absent any express words in paragraph 1 allowing for a partial replacement of an existing harbour authority, have the significance which Mr Straker would give it, in support of his contrary construction of paragraph 1.
74. Nor do I find the other examples of objects in Schedule 2 relied on by the claimant (paragraph 3 (variation or abolition of powers); paragraph 7A (extinguishment of public rights of way); paragraph 7B (extinguishment of public rights of navigation) or paragraph 9A (development of land)) as carrying the significance contended for in the construction of paragraph 1. Their very wording enables the objects to be pursued in the way contended for by the claimant without the need to imply words such as 'all or any'. They are not in my judgment examples of implied provision for only partial achievement of a stated object.

Paragraph 17

75. Nor do I consider that Mr Straker's submission that the objects in Schedule 2 allow for the partial replacement of an existing harbour authority by a newly constituted authority, can be rescued by reliance on the provisions of paragraph 17 ('Any object which, though not falling within any of the foregoing paragraph, appears to the appropriate Minister to be one the achievement of which will be conducive to the efficient functioning of the harbour'). No reliance upon this paragraph was made in the claimant's application for the HRO, and I agree with the contrary submission that this paragraph has to be construed as a 'sweeping-up' provision to be interpreted ejusdem generis to paragraphs 1 to 16. It cannot be read to allow the achievement of any object in relation to the functioning of a harbour irrespective of the limitations imposed on the objects in the remainder of the Schedule for otherwise it would render the preceding paragraphs of the Schedule otiose. The only paragraph of the Schedule expressly providing for the establishment of a new harbour authority in substitution for an existing one is that contained in paragraph 1. If, as I have held, this cannot be construed as allowing for only the partial replacement of an existing harbour authority, paragraph 17 cannot in my judgment be used wholly to undermine what I consider to be the express intention of Parliament to allow such an object to be achieved only through the mechanism of a Harbour Empowerment Order.

The precedent Orders

76. Nor can the precedent orders relied on by the claimant lead to a contrary conclusion on the proper interpretation of paragraph 1. I have already set out the effect of these orders or proposed orders. As already indicated, they cannot begin to influence the court's conclusions on interpretation unless it has decided that in principle the words permit of the construction submitted by the claimant. For the reasons already given, however, I do not consider they do.

The lacuna argument

77. I should record that I was at first blush impressed by the lacuna argument pressed upon me by Mr Straker. As he pointed out, there can be no dispute on the basis of the undisputed provisions of Schedule 2 that an HRO could in relation to the entirety of the existing harbour establish a new harbour authority in place of the existing authority, but under the terms of such an HRO the new body could end up with less than the existing one because of the objects provided for in Schedule 2 which allow for the closure of part of the harbour (see paragraph 8A; see also section 14(2B)) and for the alteration in the limits within which the harbour authority has jurisdiction (paragraph 6). There is moreover no dispute that an HRO (under paragraphs 5 and 6) could provide for the geographical division of an existing harbour between the existing harbour authority and another already existing harbour authority (as for example provided for in the Weymouth and Portland Orders). Why then, asks Mr Straker rhetorically, should Parliament not have provided for the establishment of a new authority for only part of the existing geographical harbour if such were justified in the interests of achieving efficiency and economy? The overall policy of the Act, he submits, must be the securing of the improvement, maintenance and management of harbours in Great Britain in an efficient and economical manner, a policy which is manifested in the remainder of the statutory provisions, such as those in section 19 allowing for the reorganisation and amalgamation of harbours and harbour authorities, and it would be an unexplained lacuna in the legislation not to have made provision for such partial replacement by a new authority and consequential geographical division, even where, for example, the existing authority had no objection.
78. Ultimately, however, I have been persuaded that this argument cannot assist in this court reaching a conclusion on the construction of paragraph 1 contrary to the ordinary meaning of its language and the indicators in the language of other objects in the Schedule in those paragraphs where Parliament has chosen expressly to contemplate their being applied to only part of the harbour. Moreover, if it is a lacuna it is only a partial one in that it identifies only the lack of a provision for such partial replacement which cannot be brought within the objects of and requirements of a harbour empowerment order (HEO) under section 16. Those requirements, as already explained, include the additional requirement not applicable to a HRO that the applicant be able to show that neither he nor any other person has powers or sufficient powers to secure the objects of the HEO or to do so effectively. The imposition of such a requirement of an inadequacy of powers in the existing harbour authority before a new authority may be established to take over part of the harbour, which I would accept will often be difficult to establish, does not however mean in my judgment that there is in truth any unexplained lacuna in the legislation at all. It seems to me that the defendant and the interested parties must be right when they submit that Parliament has expressly chosen to limit the circumstances in which this may occur. There is no illogicality in the adoption of a policy which is against the unnecessary proliferation of harbour authorities and requiring that a clear justification be shown by reference to the need for further powers if a new body is to come in and take over the management etc of part of an existing harbour. As Mr Drabble put it, on behalf of ABP, the statutory scheme on its proper reading requires that where an order is to be made transferring part of the geographical jurisdiction of a harbour authority to a body which is not an existing one, a case has to be made out that the powers of the existing authority are insufficient to secure the management etc of the harbour or to do so effectively. An example given was that of the need to open a wharf to transmit a specialist cargo such as nuclear waste.
79. Ultimately I have been persuaded that such a statutory scheme far from creating an explained or illogical lacuna is a perfectly sensible one.
80. It follows that the first ground of challenge – that of misdirection – must fail. It must further follow that the HRO sought in this case could never have been lawfully made, being one which did not seek to achieve any of the statutory objects.

The other grounds of challenge

81. I turn to the other grounds of challenge.

Lack of power to reject the application at a preliminary stage; failure to give adequate or intelligible reasons for the decision; failure to afford the claimant a fair opportunity to make representations before making the decision to reject summarily;

82. I deal with these remaining grounds together since they inevitably overlap. Complaint is made that that the claimant's application was rejected (in the sense that the defendant decided 'that the application is not to proceed further') at a preliminary stage before the normal procedures laid down in the Act had been completed without any consideration of its merits, and without any or any fair opportunity being given to the claimant to make any representations to the defendant before any decision to reject the application summarily was made. Specific complaint is made as to the lack of reasons given for the decision.
83. There are in effect two distinct complaints. The first is as to a lack of power. The second, which inevitably embraces the other of the remaining grounds, goes to the unfairness of the procedure adopted before the exercise of the power.

Lack of power

84. I have already set out the outline of the procedural provisions contained within Schedule 3 of the Act as applied by section 17 of the Act. I have no doubt that the power to reject an application in the sense of a power to decide that the application is to proceed no further, without considering its merits and without proceeding to the stage of Inquiry contemplated by paragraph 18 where, as here, objections to the application have been made, must reside in the defendant. I would accept that such a power is not conferred in terms, that is say expressly, by paragraph 18(1A)(a) since that provision simply recognises that that there may be situations in which such a decision that the application is not to proceed further has been taken. However that subparagraph self evidently proceeds on the basis that such a power exists and I do not consider that the only circumstances in which it can be exercised are those set out in paragraph 9 of the schedule under which there is a duty on the Secretary of State (and accordingly the defendant) not to consider an application for a harbour revision order unless the applicant has complied with the specified procedural requirements as to the giving of notices and so forth. If necessary I would rule that such a power is impliedly conferred by paragraph 18(1A) (a) of Schedule 3.
85. It is unnecessary for me to delineate the circumstances in which such power can be lawfully exercised by the defendant save to say that it has to be subject to the constraints of rationality and I do not rule that it can be exercised (by analogy with the provision for the disregard of objections in paragraph 18 (1A)(b)) only if an application is plainly, frivolous or vexatious. However, for present purposes I have no doubt that one of those circumstances must be where on the face of the application, the order applied for cannot be lawfully made, whatever the status of the applicant and whatever the merits of the application in terms of the public interest purpose test in section 14(2)(b), because it cannot be brought within any of the objects for which an HRO can be made under the Act. If there is no power in the defendant to make the order sought whatever the outcome of further consideration, then the defendant in my judgment must be entitled to decide not to allow the application to proceed further to the next stage of what could be a costly Inquiry and investigation of the merits of the application.
86. But of course in taking such a decision on the basis that it considers that the application on any view without any further investigation, cannot be brought within any of the statutory objects, the defendant always runs the risk that a court may yet set aside that decision on the grounds that such a conclusion was wrong in law or other wise irrational.
87. Thus I have no doubt that the defendant did have the power to make the decision it did in this case, it being on the basis that the application did not seek any of the objects for which a Harbour Revision Order could be lawfully made.

Unfair procedure; failure to give opportunity to make representations before decision made; failure to give adequate reasons

88. Given the decision I have come to, namely not only that the defendant had the power to make the decision it did, but that it did not misdirect itself as to the construction and interpretation of the material statutory provisions, and was correct in deciding that the order sought whereby the applicant was to be established as a new harbour authority for part only of the harbour within the jurisdiction of an existing harbour authority, could not lawfully be made, it must follow in my judgment that the grounds of challenge based on unfairness of procedure in failing to give the claimant prior notice of the decision the defendant was minded to make and further based on the inadequacy of reasons given for the decision, even if made out in principle, could not justify the quashing of the decision absent any prejudice to the claimant.
89. The claimant can point to no statutory requirement under the Act as to the giving of notice or the giving of reasons. Hence the failure to meet any such requirement of notice or the giving of reasons cannot render the decision unlawful by reason of any statutory breach of duty. I would accept of course that the general principles of natural justice and fairness will often require the giving of notice and the giving of adequate reasons, and as Mr Straker submitted there is a long standing principle that the courts will supplement a statutory procedure where necessary to ensure the requirements of fairness are met (citing for example Lloyd v McMahon [1987] AC 625,702-703 per Lord Bridge). However, if in fact no prejudice has been suffered by the party who alleges such unfairness, then no authority was cited to me to justify the quashing of what otherwise was a lawful decision. Thus for example in the context of a 'reasons challenge' in the context of a planning decision, see the judgment of Lord Brown in South Bucks District Council and another v Porter [2004] 1 WLR 1953, [2004]UKHL 33, at paragraph 36 ('… A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision'). See too the rationale of the decision in R v SSHD ex parte Doody 1994 AC 551 that the prisoner claimant in that case was entitled to know the gist of the case against him since otherwise he would be unable to make worthwhile representations. Thus Lord Mustill at page 560:

'Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result or after it is taken, with a view to securing its modification or both … Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case he has to meet'

90. The difficulty for the claimant is that on the question of the construction of the paragraphs in Schedule 2 in particular that of paragraph 1, on the basis of the ruling I have made, there is, as the defendant submitted, by definition nothing which the claimant could have said which would have made a difference to the decision not to proceed to consider the application further. If it is correct – as I have held – that the HRO applied for cannot lawfully be made under section 14 and Schedule 2 of the Act then no prejudice can be demonstrated caused by any failure to give the opportunity to make representations.
91. Similarly whatever the position as to the adequacy of the reasons given in the Decision Letter, any lack of reasoning has caused no prejudice, if, as I have held, the HRO could not be made in law, then again as the defendant submitted, any absence of proper reason for not progressing the application by the decision maker in respect of it, becomes an irrelevance. I was referred in this context to a like approach adopted by the Court of Appeal in Berry & Marshall (Bolton Wood) Ltd v Secretary of State for the Environment, Food and Rural Affairs [2011] EWCA Civ 636 in disposing of a challenge to the adequacy of a planning inspector's reasoning when dealing with an argument which the Court agreed was in any event wrong. Carnwath LJ put the matter thus:

'24 As to the adequacy of the inspector's reasons, I do not see how this can arise as a separate point. She could perhaps have dealt more fully with Mr Williamson's argument but I cannot see how any prejudice arises from her failure to do so. If, as I have held, the argument was wrong, then the way the inspector dealt with it is irrelevant to the ultimate decision'

92. Thus I reject these additional grounds of challenge as a basis for quashing the decision under challenge.
93. It follows that this claim must fail.
94. However for the sake of completeness I should record my views on the fairness issues raised by the claimant as a matter of principle.

The giving of notice before deciding to proceed no further: the opportunity to make representations

95. In principle I do consider that fairness would normally demand that the defendant should give prior notice to an applicant that it was minded to not to progress the application further on grounds that it could not lawfully be made, with an explanation giving at least the gist of why it was minded to reach that conclusion so as to enable the applicant to make such representations as it thought appropriate and, had the claimant been able to demonstrate any prejudice by the failure to do so in this case, then relief in these proceedings might well have been appropriate. Although I appreciate the point made by the defendant that the claimant was self evidently already aware of the point being taken by the DfT that the proposed HRO could not be brought within the objects provided for by the statute (see again its letter to the defendant of the 20 December 2010 in which it expressly declined to comment on the DfT's views as to the use of section 14 and its objects) and had been copied into the letters of objection from the first and second interested parties as well as the DfT representing in effect that the proposed HRO was not consistent with section 14 of the 1964 Act and the objects under schedule 2, this is not the same as the claimant being made aware that the defendant was about to accept any of these representations without more and in any event it might be thought that the claimant was entitled to notice of which particular parts of those representations were about to be accepted.
96. Had for example the decision been made on the 'improper purpose' ground (which, already indicated, it is now conceded it was not), then undoubtedly in my judgment the claimant was entitled to prior notice that this was being proposed since in these circumstances the claimant would necessarily have been in a position to make representations on what on any view is a fact sensitive issue (on this, see further this court's more detailed consideration of this ground of defence below).

Reasons

97. Equally I am satisfied that on general grounds of fairness an applicant in the position of the claimant is entitled to be given reasons for a decision made that the application is not to proceed further. Such reasons have however to be no more than is necessary to be within the ambit of the principles set out by Lord Brown in South Bucks at paragraph 36 namely that the reasons have to be intelligible and adequate and enable the reader to understand why the matter was decided as it was but bearing in mind always that 'decision letters must be read in a straightforward manner, recognising that they are addressed to the parties well aware of the issues involved and the arguments advanced'. In other words I accept that this obligation to give reasons is not an onerous one and the adequacy of any reasons has to be judged from the point of view of the informed reader, that is to say, in this case, the claimant informed by that which had already been brought to its attention by being copied into the letters of objection from amongst others the DfT and the other interested parties.

Adequacy of reasons in this case

98. In these circumstances given that the claimant was well aware from the prior correspondence that the point being taken by the DfT was that a HRO which sought to 'create a new harbour from within an existing one by turning a body which is not currently a harbour authority into a harbour authority for just part of the existing harbour' could not be brought within any of the objects relied on by the claimant, in particular paragraph 1 of schedule 2 and hence could not be lawfully granted, (see again the DfT letter of 27 September 2010), I consider that the present Decision Letter did give adequate and intelligible reasons when, having first rehearsed that the proposed order sought to transfer ownership of part of the Port of Immingham from ABP to the claimant, and that the application was for a harbour revision order under section 14 of the Act which allows an order be made for achieving all or any of the objects specified in schedule 2, and having expressly identified the particular objects which the claimant's own statement of justification accompanying the application had said the proposed order was to achieve, (viz those in paragraphs 1, 5 and 7), it stated the 'MMO considers that the proposed order does not seek to achieve the objects within these three paragraphs nor any other of the objects under schedule 2' and 'for the reasons outlined above the MMO considers the proposed order cannot lawfully be made'. It was not necessary in my view for the defendant to go further and explain in detail why it considered the construction it had put upon the paragraphs relied on by the claimant was the correct one.
99. However, as I have indicated whether or not the reasons given were adequate, this ground of challenge cannot be the basis for relief absent any prejudice to the claimant caused thereby.

The further grounds of defence

100. Given the decision I have reached that this claim must fail on the grounds of challenge put forward by the claimant, it is strictly unnecessary for me to rule upon the further grounds of defence raised relating to improper purpose and alternative remedies.
101. However, again for the sake of completeness I set out my views upon them.

Improper Purpose

102. I would accept as an established principle of public law that statutory powers must be exercised in a manner that promotes the policy and objects of the statute and if the dominant purpose of the decision maker was not to promote that policy but to promote a purpose outwith the policy and the statute's objects and/or to frustrate those objects, then the decision is an unlawful one. The leading authority is the decision of the House of Lords in Padfield v Minister of Agriculture Fisheries and Food [1968] AC 997 but I was cited a number of authorities exemplifying the application of that principle in the context of different statutes (see for example the decision of Brooke J in R v National Rivers Authority, ex p. Haughey (1996) 8 Admin LR 567 in the context of the statutory power to grant fishing licences under the Freshwater Fisheries Act 1965).
103. I use the expression 'dominant' purpose advisedly since it is not enough to rescue a decision with such a purpose outwith the objects of the statute that a collateral consequence of the decision is one within it. On this see the decision of the Court of Appeal in the Queen (on the application of P Richards and G Richards) v Pembrokeshire County Council [2004] EWCA Civ 1000 where it was held that Directions directed at the control of parking, the power to make which ultimately derived from the very same section 14 and schedule 2 of the 1964 Act with which this case is concerned, could be justified only if they could be shown to have been adopted for one or more of the purposes identified in Schedule 2, that is to say for harbour operational purposes and that it was fatal to their lawfulness that they were not in fact adopted 'at least primarily' for the operational purposes of the harbour but for a different primary purpose, namely to alleviate congestion and improving pedestrian safety in the centre of Tenby. At paragraph 44 Neuberger LJ said as follows:

'We accept that common sense strongly suggests that there would be some benefits to the harbour at least so far as access and egress from the harbour area are concerned as a result of better control of traffic and parking. However we consider on a fair reading of the stated reasons … the effect on harbour operation, while not negligible, was ultimately a collateral consequence of the decision to adopt the Directions. In order to be intra vires it appears to us that the Directions would have to have as one of their main purposes, if not as their main purpose, the management and operation of the harbour. We do not think one can fairly spell this out of the Directions … the Decision or the Report.'

The Report was a reference to a report from a Council Officer which informed the decision of the Defendant Council to adopt the Directions expressly for the reasons set out in the Report and its recommendations.

104. As already set out, the defendant seeks to build upon these principles and seeks to argue that based on that which is openly set out in the Statement of Justification in the paragraphs I have already identified (see paragraphs 12 and 13 above), that the claimant's application for the HRO has been motivated for an improper purpose out with the purposes of the 1964 Act, and that it would not in any event be lawful for the defendant to make the HRO which is sought, even if it had the power to do so, to facilitate this dominant 'improper purpose' strategy of the claimant. Hence it is submitted the court should in any event deny the claimant any relief even if the claimant were to be correct on its construction argument.
105. This submission is supported by both interested parties.
106. This motivation or dominant purpose of the Claimant is put in different ways but, as already set out above, it can be summarised as being to circumvent the procedures under the 1954 Act relating to the renewal of leases and to obtain a commercial advantage over the claimant's landlord in the dispute between them over the terms of its continuing use/occupation of the land on the expiry of the current lease. ABP speaks of the HRO being sought to gain a proprietary interest rather than seeking to establish a new harbour undertaking and (para 20 of its Detailed Grounds) 'it is clear that the claimant's purpose in applying for the HRO is not to secure the improvement, maintenance or management of the harbour in an efficient and economical manner in the public interest but rather to circumvent the 1954 Act by the expropriation of a valuable asset owned by ABP in order first to secure exclusive possession in disregard of ABP's potential right to regain possession under the 1954 Act, and secondly to avoid having to make proper payment for its use'.
107. The OPA makes similar submission referring to the claimant's application not being 'for the dominant purpose of achieving any of the objects in Schedule 2 of the 1964 Act but rather for the dominant ulterior purpose to attain by statutory means that which the claimant has been unable to negotiate on terms that are commercially acceptable to it, viz an extension of its rights of exclusive possession as tenants of the terminal from ABP' (detailed Grounds para 33).
108. The difficulty with these submissions is that it is the defendant who is the decision maker, not the claimant, and they beg the question of whether whatever the motivation of the claimant, the proposed HRO would in fact be desirable in the interests of securing the improvement, maintenance or management of the harbour in an efficient and economical manner, i.e. whether it would meet the public interest purpose test under section 14(2)(b) of the Act. As I have already set out, on the face of its Statement of Justification, the application can be said to be predicated on the express contention that it would be inefficient and uneconomic for ABP to assume the management and operation of the Terminal. But this question under section 14(2)(b) and this contention, has as yet never been addressed or investigated by the defendant as it conceded in its decision letter and it must not be forgotten that this submission of improper purpose only arises if it is accepted that the proposed HRO is seeking to achieve one or more of the objects provided for in section 14 and Schedule 2 to the Act.
109. I repeat moreover my observations in paragraphs 22 and 23 above, that the Terminal, the subject of the claimant's application, is capable of constituting a harbour in its own right and the use to which the claimant has been putting, and the operations it has hitherto been carrying on at the Terminal through the leasing arrangements, have had as their fundamental purposes, purposes which are capable of being characterised as the use of the harbour for harbour purposes. I further repeat that there is nothing in the judgment of Vos J in the proceedings under the 1954 Act which goes to undermine the bona fides of the claimant or which assists on the questions of efficiency or economy if ABP were to assume the operation of the terminal.
110. Moreover the defendant does not now say that it ever decided not to proceed further with the application on this ground of improper purpose, and I have no doubt if – contrary to my ruling – the proposed HRO was in principle seeking to achieve the object in paragraph 1 of the Schedule (and in consequence paragraphs 5 and 7) that it would not be proper for any conclusions to be made as to the motivations of the claimant, without giving the claimant a proper opportunity to respond to the criticism being made. The claimant has put in evidence in these proceedings through the evidence of Mr Bassford which goes to contradict the assertion of an improper motive. See Mr Bassford's statement at paragraph 5.
111. Ultimately I agree with the claimant's submissions that it would be quite wrong for this court to make any finding as to improper motive or dominant purpose of the claimant in seeking the HRO. This in my judgment is a finding of fact which it would be quite impossible for this court to investigate. I agree moreover with the claimant that in making the submission at this stage the defendant is conflating the alleged motivation of the claimant in making the order application with the reasons why the defendant might make the order if it ultimately concluded – whatever the motivation of the claimant – that the statutory purpose provided for by section 14(2) (b) would be achieved by the order. I agree that the fact the claimant may have particular motives for making the application does not prevent the statutory purposes being achieved or the defendant lawfully deciding after due inquiry provided for in the statutory procedures, that it would be desirable to make the order for the purposes set out in section14(2) (b).
112. The question of the claimant's motivation might well be a very relevant consideration for the defendant when determining whether in the exercise of its discretion under section 14(1) to make the HRO if it otherwise decided that the merits test under section 14(2) (b) was satisfied (and it might arguably be a factor to be put into the balance when deciding whether the HRO met the 'desirability of purpose' test in that subsection), but before such factor could come into play the defendant would have to progress the application under the statutory procedures for the purposes of determining the merits test under that subsection. I accept in other words the overall submission of Mr Straker which I have summarised at paragraph 17 of this judgment. It is noteworthy that the DfT itself in its letter of 27 September 2010 anticipated, given the strength of the objections from ABP, that a public inquiry would follow.
113. Thus I would not – had I upheld the claimant's construction arguments – have been prepared to refuse relief on this 'improper purpose' ground. And this too would have been the court's reaction on the prematurity ground developed by Mr Moules although I accept that the point he makes in this context that the contingency of ABP assuming the operation of the Terminal upon which the application was based, has not yet materialised (given the ongoing proceedings under the 1954 Act), could again be relevant to the defendant's consideration of the merits of the application under section 14(2) (b).

Alternative Remedy

114. The 'Alternative Remedy' argument as a basis for denying relief in these proceedings is in my judgment misconceived. For relief to be denied on this basis it has to be demonstrated that there is or was some other remedy or route of redress available to the claimant to challenge the decision under challenge as for example where there is or was some statutory right of appeal against the decision, or an order made under the decision, which was suitable to determine the real issue to be determined between the parties, i.e. in this case as between the claimant and the defendant (not as between the claimant and ABP). See the analysis of the applicable principles given by Taylor LJ in R v Birmingham City Council, ex parte Ferrero Ltd [1993] 1 All ER 530, 538h-539j.
115. As between the claimant and the defendant the claimant seeks to challenge the decision of the defendant not to progress its application for a Section 14 Harbour Revision Order. I agree with Mr Straker that if there were another avenue by which the process of an HRO application could be supervised and the underlying issues as to the proper construction of the Act and whether the application should have been considered on its statutory merits, could have been determined, then there would be an alternative remedy. But no such avenue has been demonstrated. Proceedings under the Landlord and Tenant Act 1954 under which the issues are different could not provide that supervision although as I have indicated, it might well be a relevant consideration for the defendant to take into account when considering the application's merits, and the application of the purpose test under section 14(2)(b), that the ongoing proceedings to obtain a new lease (relevant to whether ABP would be in a position to take over the operation of the Terminal), had not yet been concluded. Equally an application for a HEO under section 16 of Act cannot be characterised as an alternative remedy to judicial review proceedings seeking to challenge the refusal to consider making a HRO under section 14, when the requirements to be met for a HEO are different. Neither set of suggested proceedings could result in a court reviewing the correctness of the decision not to progress the HRO application. Neither set of proceedings could result in the claimant obtaining the grant of a Harbour Revision Order.
116. Put another way the 1964 Act provides that a person with a substantial interest may make an application for an HRO under the Act so long of course that it seeks to achieve all or any of the statutory objects. It does not provide that a person with such an interest may make such an application save where he could make an application for something else, such as an HEO or even a new lease under the 1954 Act.
117. Therefore had I concluded that the claimant's application for an HRO was seeking to achieve a statutory object, then I would not have denied the claimant relief quashing the decision not to progress the application further, on the alternative remedy ground.

Final Conclusion

118. However for the reasons I have given I consider that the defendant was correct in concluding that the claimant's application on its face could not achieve any of the statutory objects and the decision that the application was not to proceed further cannot be faulted. In these circumstances I dismiss the claim.
119. I will consider any submissions as to the form of the order and as to costs on the handing down of this judgment.

Annex A

Schedule 2 Objects for whose Achievement Harbour Revision Orders may be made

Section 14

1

Reconstituting the harbour authority by whom the harbour is being improved, maintained or managed or altering their constitution, or establishing, as the harbour authority, in lieu of the existing one, an existing body designated in that behalf or a body constituted for the purpose.

2

Regulating (in whole or to a less extent) the procedure of, or of any committee, of, the authority and fixing the quorum at a meeting of, or of any committee of, the authority.

3

Varying or abolishing duties or powers imposed or conferred on the authority by a statutory provision of local application affecting the harbour, being duties or powers imposed or conferred for the purpose of—

(a) improving, maintaining or managing the harbour;

(b) marking or lighting the harbour, raising wrecks therein or otherwise making safe the navigation thereof; or

(c) regulating the carrying [on by others of activities relating to the harbour or of] activities on harbour land.

4

Imposing or conferring on the authority, for the purpose aforesaid, duties or powers (including powers to make byelaws), either in addition to, or in substitution for, duties or powers imposed or conferred as mentioned in paragraph 3 above.

5

Transferring from the authority to' another or to the authority from another all or any of the property vested in, as the case may be, the authority or that other and held for the purposes of the harbour and, so far as they relate to the transferred property, all or any of the duties and powers imposed and conferred on, as the case may be, the authority or that other by a statutory provision of local application affecting the harbour.

6

Settling (either for all purposes or for limited purposes) the limits within which the authority are to have jurisdiction or altering (either for all purposes or for limited purposes) such limits as previously settled.

7

Conferring on the authority power to acquire (whether by agreement or compulsorily) land described in the order, being land required by them for the purpose of its being used as the site of works that they have, or will by virtue of the order have, power to execute or for some other purpose of the harbour.

[7A

Extinguishing or diverting public rights of way over footpaths or bridleways [, bridleways or restricted byways] for the purposes of works described in the order or works ancillary to such works.

7B

Extinguishing public rights of navigation for the purposes of works described in the order or works ancillary to such works, or permitting interference with the enjoyment of such rights for the purposes of such works or for the purposes of works carried out by a person authorised by the authority to carry them out.]

8

Authorising justices of the peace to appoint, on the nomination of the authority, persons to act as constables within any limits within which the authority have jurisdiction in relation to the harbour and within one mile outside any such limits, and to dismiss persons appointed by virtue of this paragraph, and conferring on persons so appointed, while acting within any such limits as aforesaid or within one mile outside any such limits, the powers which a constable has within his constablewick.

[8A

Enabling the authority to close part of the harbour or to reduce the facilities available in the harbour.]

9

Empowering the authority to dispose of property vested in them and held for the purposes of the harbour which is no longer required for those purposes.

[9A

Empowering the authority (alone or with others) to develop land not required for the purposes of the harbour with a view to disposing of the land or of interests in it, and to acquire land by agreement for the purpose of developing it together with such land.

9B

Empowering the authority to delegate the performance of any of the functions of the authority except-

(a) a duty imposed on the authority by or under any enactment;

(b) the making of byelaws;

(c) the levying of ship, passenger and goods dues;

(d) the appointment of harbour, dock and pier masters;

(e) the nomination of person to act as constables;

(f) functions relating to the laying down of buoys, the erection of lighthouses and the exhibition of lights, beacons and sea-marks, so far as those functions are exercisable for the purposes of the safety of navigation.]

10

Empowering the authority to borrow money, with or without limitation with respect to the amount that may be borrowed or the time or manner in which the power may be exercised.

11

Empowering the authority to levy at the harbour charges other than ship, passenger and goods dues or varying or abolishing charges (other than as aforesaid) levied by them at the harbour.

12

Securing the efficient collection of charges levied by the authority at the harbour and specifying the times at which and the persons by whom such charges are to be paid.

13

Regulating the application of moneys in the nature of revenue received by the authority and securing that the financial affairs of the authority are properly managed.

14

Varying or extinguishing any exemption from charges levied by the authority at the harbour or any other right or privilege enjoyed thereat.

15

Securing the welfare of the authority's officers and servants and empowering the authority to provide, or secure the provision of, pensions, gratuities and other like benefits for or in respect of their officers and servants.

16

Extending the time within which anything is required or authorised by a statutory provision of local application affecting the harbour to be done in relation to the harbour by the authority or fixing a time within which anything authorised by the order to be so done must be done.

[16A

Imposing or conferring on the authority duties or powers (including powers to make byelaws) for the conservation of the natural beauty of all or any part of the harbour or of any of the fauna, flora or geological or physiographical features in the harbour and all the other natural features.]

17

Any object which, though not falling within any of the foregoing paragraphs, appears to the appropriate Minister to be one the achievement of which will conduce to the efficient functioning of the harbour.

NOTES

Initial Commencement

Royal Assent

Royal Assent: 10 June 1964: (no specific commencement provision).

Amendment

Para 3: words in square brackets substituted by the Transport and Works Act 1992, s 63, Sch 3, para 9(2).

Paras 7A, 7B, 8A, 9A, 9B, 16A: inserted by the Transport and Works Act 1992, s 63, Sch 3, para 9(3)-(6).

Para 7A: words "or bridleways" in italics repealed and subsequent words in square brackets substituted, in relation to England and Wales, by SI 2006/1177, reg 2, Schedule, Pt I.

Date in force (in relation to England: 2 May 2006 (being the date on which the Countryside and Rights of Way Act 2000, ss 47-50 came into force in relation to England): see SI 2006/1177, reg 1(2) and SI 2006/1172, art 2(a)-(d).

Date in force (in relation to Wales): 11 May 2006 (being the date on which the Countryside and Rights of Way Act 2000, ss 47-50 came into force in relation to Wales): see SI 2006/1177, reg 1(4) and SI 2006/1279, art 2(a)-(d).

Annotations

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