Neutral Citation Number:  EWHC 1872 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Tuesday, 26th July 2005
B E F O R E:
MR JUSTICE SULLIVAN
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THE QUEEN ON THE APPLICATION OF ALISON HARDY AND RODNEY MAILE
(1) PEMBROKESHIRE COUNTY COUNCIL
(2) PEMBROKESHIRE COAST NATIONAL PARK AUTHORITY
(1) DRAGON LNG LIMITED
(2) SOUTH HOOK LNG TERMINAL COMPANY LIMITED
(3) THE HEALTH AND SAFETY EXECUTIVE
(4) MILFORD HAVEN PORT AUTHORITY
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Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
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MR R PURCHAS QC AND MR D WOLFE (instructed by Richard Buxton Solicitors) appeared on behalf of the CLAIMANTS
MR J LITTMAN (instructed by Pembrokeshire County Council) appeared on behalf of the 1st DEFENDANT
MR T STRAKER QC AND MR P BROWN (instructed by Eversheds) appeared on behalf of the 2nd DEFENDANT
MR R HARRIS QC AND MS C PATRY (AND MR E ROBB FOR JUDGMENT ONLY) ( instructed by Berwin Leighton Paisner) appeared on behalf of the 1st INTERESTED PARTY
MR N PLEMING QC AND MR S TROMAN (instructed by Norton Rose) appeared on behalf of the 2nd INTERESTED PARTY
MR J HYAM (AND MS H MCMAHON FOR JUDGMENT ONLY) (instructed by Treasury Solicitor) appeared on behalf of the 3 rd INTERESTED PARTY
MR R PRICE-LEWIS QC (AND MR J MAURICI FOR JUDGMENT ONLY) (instructed by Morgan Cole) appeared on behalf of the 4th INTERESTED PARTY
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J U D G M E N T
(As Approved by the Court)
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Tuesday, 26th July 2005
1. MR JUSTICE SULLIVAN: In this application for permission to apply for judicial review the claimants challenge the grant of planning permissions under the Town and Country Planning Act 1990 ("the Planning Act") and hazardous substances consents under the Planning (Hazardous Substances) Act 1990 ("the Hazardous Substances Act") by the first and second defendants to the first and second interested parties. The third and fourth interested parties were consultees during the decision-making processes leading to the grant of the various permissions and consents.
2. The permissions and consents authorised the construction of two very large Liquified Natural Gas (LNG) terminals at Milford Haven. The South Hook terminal, sometimes referred to by the name of the promoting consortium, the Exxon Mobil terminal, being developed by the second interested party and the Dragon terminal, sometimes referred to as the Petroplus terminal, being developed by the first interested party. The Dragon terminal falls exclusively within the jurisdiction of the first defendant. The South Hook terminal falls within the jurisdiction of both the first and second defendant.
3. The claimants live in Milford Haven. In summary they contained in their claim form that, firstly, there was a failure to carry out a comprehensive environmental impact assessment of the project as a whole, including not merely the construction of the two terminals themselves, but also associated dredging in the Haven and improvements to jetties to facilitate the movement and berthing of very large LNG tankers,the construction of a pipeline for the distribution of LNG, and in connection with one of the terminals, the construction of a power station which would use some of the LNG to produce electricity.
4. Second, there was a failure to have regard to a material consideration, namely the risks arising in connection with the marine traffic (the navigation and berthing of the large LNG tankers) that will supply the terminals and a consequential failure to consider whether there might be alternative locations for the facilities, for example off-shore, which would reduce the number of those who might be put at risk if there was an escape of LNG.
5. Third, the decisions to grant the permissions and consents were taken on the basis of a fundamental misunderstanding as to the characteristics of LNG in the event of an escape from a tanker or if dissipated into the atmosphere for any other reason.
6. In addition to the claim bundle containing the claim form, grounds of challenge, appendices to the grounds of challenge and supporting witness statements, there were 8 volumes of supporting documents running to over 5,000-pages.
7. The defendants and the interested parties all served detailed "Summary Grounds" contesting the substance of the claimants' criticisms of the decision-making process, but they also complained that the claim form did not sufficiently distinguish between the two sites and between the different decisions that had been made at different times in respect of each site.
8. In section 3 of the claim form the claimants gave the following details of the decision to be judicially reviewed, its date and the decision-taker:
"Grant of a hazardous substances consent in respect of the terminal to be operated by the first interested party and numerous other permissions as set out in the grounds.
Date of decision
7 December 2004 (and previous)
Name and address of the court, tribunal, person or body who made the decision to be reviewed
Decision of 7.12.4: the first defendant; other decisions, first and second defendants."
9. Paragraph 2 of the grounds of challenge said that the claimants challenged the granting of "permissions and consents (being multiple planning permissions under the Town and Country Planning Act 1990 and consents under the Planning (Hazardous Substances) Act 1990)."
10. A footnote referred the reader to appendix A1 to the grounds. Appendix A1 set out in chronological order a list of 58 applications of various kinds relating to the two sites beginning on 17th September 2002 and ending on 7th December 2004. Since the most recent decision on the list was dated 7th December 2004 and the claim form was not filed until 4th March 2005, and served on or about 10th March, the acknowledgments of service also contended that permission to apply for judicial review should be refused on the ground of delay.
11. Paragraph 79 of the claim form sought the quashing of the grants of consent or permission involved. Under the heading "Timing of Challenge", paragraphs 79 to 82 of the claim form said this:
"79. As explained in the Appendix at section A6 the misleading information distributed as part of the consultation in relation to the LNG terminals (particularly in relation to the marine and onshore risks) lulled local people into what they now realise was a misplaced lack of concern about the proposals under consideration.
"80. Likewise, they took at face value the ambit of what was being proposed and consulted on (ie the LNG terminals themselves) and not the true larger project including the pipeline, etc as it now appears.
"81. The Claimants and others thus did not initially appreciate the full nature of what is being contemplated, nor its implications.
"82. When they began to do so, and undertook their own investigations, they realised the full implications of the proposals.
"83. They then sought legal advice. Letters before Claim were written to [the first and second defendants] on 22.12.04 with supplementary letters on 7.01.05... The Responses were received on 25.1.05... Emergency public funding to bring the challenges was granted on 1.12.04.
"84. The Claimants submit that, to the extent that the decisions they challenge were taken more than 3 months ago, time should be extended in all the circumstances. In considering that matter the court will need to give effect to the obligation on it (as explained by the ECJ in [R (Wells) v Secretary of State for Transport, Local Government and the Regions  1 CMLR 31  Env LR 528]) as an organ of the Member State to exercise its powers to secure compliance with the requirements of the EIA Directive. The Court should also have regard to the nature of the challenge and of the concerns raised by residents."
12. Under the heading "Misleading Information" Appendix A6 said that:
"Misleading information was distributed as part of the consultation in relation to the LNG terminals: In particular the claim was made on a number of occasions that:
LNG when spilled will quickly evaporate and form a visible cloud of condensing water vapour that makes it look like fog. Because it is lighter than air it disperses quickly and is not easy to ignite."
13. Appendix A6 contended that certain officers of the first defendant repeated this misinformation, but the point is made that the error was pointed out by a Professor Fay in an e-mail of 10th February 2004. It is further said that the matter was drawn to the first defendant's attention by an officer of the second defendant in a fax of 12th February 2004.
14. Appendix A6 contends that the same misinformation was printed in the Western Telegraph published on 3rd March 2004 and was sent by e-mail on 4th March 2004 from an officer of the second interested party to officers of the defendants for distribution to committee members.
15. It was further contended that the third interested party had provided misleading information in consolidated questions and answers that had been provided on 5th March 2004 to the second defendant and that this information had also been given to the first defendant's councillors.
16. In paragraph 127 of the summary grounds the first interested party asked for expedition and referred to a letter, dated 6th April 2005, which briefly explained the substantial financial prejudice which it would suffer if permission to apply for judicial review was granted.
17. In paragraph 9 of its summary grounds the second interested party set out in some detail the extent to which it had entered into very substantial financial commitments following the grant of planning permission and the extent to which it would be prejudiced by delay and uncertainty if permission was granted.
18. On 3rd May 2005 I ordered that:
"(1) There is to be an oral hearing of the Claimants' application for permission which will focus principally on the issue of delay: the Claimants' reasons for it, and the practical implications for the Interested Parties.
"(2) The parties must file and serve Skeleton Arguments dealing with this issue not less than 4 days before the hearing.
"(3) The Claimants' Skeleton Argument must clearly identify which decisions they seek permission to challenge, distinguishing between those decisions issued in respect of
(a) the South Hook (or Exxon Mobil) site, and
(b) the Dragon (or Petroplus) site,
And giving in each case the date of the relevant decision.
"(4) Within 14 days of the date of this Order:
(a) Each of the Claimants must file and serve a further witness statement giving particulars of why the matters referred to in paragraphs 79-82 of the Claim Form caused them to delay commencing proceedings.
(b) The First Interested Party must file and serve a witness statement giving particulars of the matters referred to in paragraph 127 of its Summary Grounds, and the letter dated 6th April 2005 referred to therein.
(c) The Second Interested Party must file and serve a witness statement giving particulars of the matters referred to in paragraph 9 of its Summary Grounds.
"(5) Any evidence in reply to the witness statements referred to in (4) above is to be filed and served within 7 days of receipt of the relevant statement..."
19. The claimants' solicitor had suggested in correspondence that the court should order a rolled-up permission and substantive hearing. In my observations I said:
"In many cases a rolled-up permission and substantive hearing is appropriate, but in the circumstances of the present case it is sensible to focus specifically upon delay, albeit against the background now crystallised in the Claimants' Core Bundle and the Second Defendant's Bundle."
By that time those bundles had been added to the 8 background volumes.
20. Where there is a readily identifiable point of law, for example the proper interpretation of an enactment or a permission, then a rolled-up permission and substantive hearing will often be appropriate. In the present case the claim form appeared to adopt a "scatter-gun" technique in respect of an uncertain number of decisions that had been taken by two local planning authorities over a period of some 18 months in respect of two different sites.
21. On the basis that the mass of background material was exhibited by the claimants because they considered that it was relevant to the issues that they wished the court to determine, it was plain that any substantive hearing of the issues was be bound to be lengthy. In these circumstances I considered that it was sensible to decide whether there was a valid objection to the grant of permission on the ground of delay before the parties were put to what would inevitably be the very considerable expense of a lengthy substantive hearing. In the event, the parties' submissions on the issue of delay alone occupied two full days of court time.
22. In determining this application for permission I must seek to give effect to the overriding objective of dealing justly with this challenge. As part of the overriding objective, the court must ensure that cases are dealt with expeditiously and fairly. In the interests of fairness towards all those affected by decisions made by public bodies, there is a particular need in judicial review proceedings for certainty and finality. That need is recognised by CPR 54.5 which provides that a claim form must be filed promptly and in any event within three months after the decision challenged. The court may extend time under CPR 3.2(a), and while it will have regard to the list of factors set out in CPR 3.9, it is bound to pay particular regard to section 31(6) of the Supreme Court Act 1981 which provides that:
"Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant -
(a) leave for the making of the application; or
(b) any relief sought on the application,
If it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration."
23. In R (on the application of Lichfield Securities Ltd) v Lichfield District Council  EWCA Civ 304,  3 PLR 33, the Court of Appeal said:
"Promptness is simply a function of the factors, ranging from the systemic to the idiosyncratic, which affect the fairness of letting a particular application proceed in a particular situation after a particular lapse of time; and these will ordinarily be the same factors as determine whether there has been undue delay. The formal enlargement of time can in practice be reserved to applications made outside the three-month limit...
"But promptness, like undue delay, is not to be gauged simply by locating the earliest practicable opportunity and adding a short time for lawyers to advise and launch proceedings. It is crucially affected by the potential or actual effects of the passage of time on others. This is the reason for the particular pressure on applicants in many planning cases..." (See paragraphs 33 and 37 per Sedley LJ giving the judgment of the court).
24. In R v Secretary of State for Trade & Industry ex parte Greenpeace Ltd  Env LR 221, a case under RSC Order 53 Rule 4(1), Maurice Kay J (as he then was), having decided that the application for permission to apply for judicial review had not been made promptly or within the three month period, considered whether permission to apply for judicial review should be refused on the ground of delay by reference to the three questions that had been posed by Laws J (as he then was) in a previous challenge by Greenpeace (Greenpeace 1). Those three questions were:
"(i) Is there a reasonable objective excuse for applying late?
(ii) What, if any, is the damage, in terms of hardship or prejudice to third party rights and detriment to good administration, which could be occasioned if permission were now granted?
(iii) In any event, does the public interest require that the application should be permitted to proceed?"
25. Before considering whether the present challenge was made promptly and/or whether there has been undue delay, it is necessary to identify the decisions under challenge. The claimants' skeleton argument identified the decisions that they seek permission to challenge as follows:
(A) South Hook Site
(1) A planning permission granted by the second defendant on 12th November 2003.
(2) A planning permission granted by the first defendant on 18th December 2003.
(3)A hazardous substances consent granted by first defendant on 2nd April 2004.
(4)A hazardous substances consent granted by second defendant on 19th August 2004.
(B) Dragon site
(1)A planning permission granted on 19th March 2003.
(2) A planning permission granted for an extension on 10th September 2004.
(3) A planning permission granted for an amended scheme on 10th September 2004.
(4) A hazardous substances consent granted on 7th December 2004.
26. Only the last of those decisions, dated 7th December 2004, was challenged (just) within the three month period prescribed by CPR 54.5. A period of over six months had elapsed before the most recent of the decisions in respect of the South Hook site was challenged. Although the grounds in the claim form do not distinguish between the two sites it is important to bear in mind that the two developments are entirely separate from each other. Not only are they physically separate, being located some 6 kilometres apart on opposite sides of the town of Milford Haven, they are also in different ownerships and the terminals are being promoted by two different consortia who are commercial rivals. The two proposals were the subject of separate applications for planning permission and hazardous substances consent, and each of the applications for planning permission was accompanied by its own environmental statement prepared by different firms of consultants.
27. It is also important to appreciate that although the two statutory schemes are intended to be administered in a complementary manner, the permissions and consents were given under separate enactments. Planning permission was required under the Planning Act for the operational development and the change of use involved in the redevelopment of the two former oil storage facilities as LNG terminals, and hazardous substances consent was required under the Hazardous Substances Act for the presence of a hazardous substance, LNG, at the terminals that were to be constructed pursuant to the planning permissions.
28. In deciding whether to grant hazardous substances consent, the defendants were required to have regard to any material considerations, including the contemplated use of the application sites themselves (see section 9 of the Hazardous Substances Act). The existence or lack of a planning permission for the contemplated use would plainly be a most material consideration in determining an application for hazardous substances consent.
29. Against this factual and statutory background it is necessary to distinguish between the two sites and between the various permissions and consents. It is beyond argument that there was undue delay or lack of promptness in challenging all of the decisions in respect of the South Hook site and all but the final decision in respect of the Dragon site (with which I will deal in due course) and Mr Purchas QC, on behalf of the claimants, did not submit to the contrary.
30. Dealing first with the South Hook site, the delay is greater than might appear at first sight because, although the final decision challenged is dated 19th August 2004, the second defendant had resolved to grant hazardous substances consent at a meeting on 10th March 2004 at which three members of the public had spoken against the grant of consent.
31. One of those members of the public was a Mr Maile [Main] who has provided a witness statement in support of the claimants. He is a member of "Safe Haven", an informal group of local residents who are opposed to the terminals. The group was formed in about May 2004 and has some 15 members who meet regularly. In addition, there are around 500 supporters who are prepared to sign petitions et cetera.
32. The two claimants became involved with Safe Haven in or around August 2004 (the first claimant who lives closer to the Dragon terminal) and September/October 2004 (the second claimant who lives closer to the South Hook terminal). Whatever the extent of their own personal knowledge may have been before 19th August 2004, the group with which they were, or were shortly thereafter to become, involved would have been well aware that the second defendant had resolved, on 10th March 2004, that a hazardous substances consent should be granted in respect of the South Hook site. Thus the formal grant of consent on 19th August 2004 could not have come as any surprise.
33. Although the second claimant says in his witness statement that "the proposals appeared to have been kept deliberately quiet", there is no evidence whatsoever to support that assertion. Indeed, all the very detailed evidence produced by the defendants and the interested parties is to the contrary. There is no suggestion that the relevant statutory requirements were not complied with. The applications for planning permission for both sites were properly advertised and the accompanying environmental statements were made available for public inspection. In respect of all of the applications both defendants undertook very full consultation exercises with a wide range of consultees which went well beyond the basic statutory requirements.
34. The applicants for planning permission for the South Hook site had opened a public exhibition/visitor centre in the town centre of Milford Haven in April 2003 and there was extensive publicity in the local press, beginning as early as 2002. Notwithstanding this publicity the reaction of local residents to the planning applications for the two terminals can fairly be described as muted (there were a limited number of objections), bearing in mind the very large scale of the two proposals, at least until well after the grants of planning permission in March 2003 (for the Dragon site) and November/December 2003 (for the South Hook site, where the split responsibility between the first and second defendants required the granting of two permissions).
35. In their witness statements the claimants say that they were not aware of these proposals until after these planning permissions had been granted. Whatever the cause of their lack of knowledge it was not because there had been inadequate publicity for the proposals.
36. By about January 2004 the concerns which eventually led to the formation of Safe Haven were beginning to be more forcibly expressed. By the time of the meeting of the second defendant on 10th March 2004, the three local residents (including Mr Maile [Main]) who addressed the meeting were raising concerns about the risk of a "fire cloud" that could burn for many miles in the event of an escape of LNG; about the lack of a quantitative risk assessment by the fourth interested party; about the risks of an incident caused by shipping in Haven; and were arguing that thousands of local peoples' lives would be put at risk if consent was granted.
37. Turning to the Dragon site, by the time that planning permissions for an extension and for an amended scheme (that would permit the use of tankers containing 250,000 cubic metres of LNG) were granted on 10th December 2004, Safe Haven (which the claimants had either joined or were shortly to join) was well aware of the proposals and of the nature of its objections to them.
38. Having granted those planning permissions the first defendant resolved to grant hazardous substances consent for the Dragon site on 12th October 2004. By way of background, there had been an earlier resolution to grant hazardous substances consent on 11th March 2003 but that had not proceeded to a formal consent because the 2003 planning permission was effectively superseded by the 2004 permissions.
39. Mr Maile [Main] makes it clear in his witness statement that Safe Haven and the two claimants were well aware of the first defendant's decision on 12th October 2004. Indeed, Safe Haven had submitted a report containing supplementary information on Liquid Natural Gas in response to the officers' report to the meeting, and had presented a petition of 500 signatures raising safety issues. The public gallery for the meeting was full.
40. Indeed, it would appear from the correspondence in the claim form that Safe Haven and the claimants were, perhaps understandably, under the impression that hazardous substances consent had been granted on 12th October 2004.
41. Safe Haven had sought the advice of a local solicitor when the agenda for 12th October meeting was published. He gave preliminary advice that judicial review might be possible. Shortly following the meeting, on 12th October, Safe Haven consulted a local barrister who advised the group to seek more specialist advice. Mr Maile [Main] instructed Mr Buxton by telephone on or about 1st November and explained his concern that there had not been been a full and proper risk assessment, in particular in respect of marine risks.
42. Mr Buxton acted promptly and wrote a preliminary warning letter to the first defendant, with copies to the second defendant and the first, second and third interested parties, on 4th November, saying inter alia:
"We have been instructed on a preliminary basis by residents extremely concerned about the lawfulness of the permission(s) (specifically including though not necessarily limited to a permission dated 12th October) attaching to the above [LNG Terminals at Milford Haven]. We have yet to see proper papers of the matter, but to the extent that we have been able to understand the situation by telephone discussions, it is plain to us that there may be serious irregularities resulting potentially in the permissions concerned being quashed. One aspect appears to be inadequacies in risk assessments done in relation to the marine side of proposed operations.
We thought it would be helpful to write to you at this point to put you, and we understand, organisations who may be interested in this matter, on notice of these concerns..."
43. Thereafter, Mr Maile [Main] attended Mr Buxton's office on 1st December. He brought with him certain documents and explained Safe Haven's concerns in more detail. Mr Buxton explained that there would need to be an individual claimant. Mr Maile [Main] said that the first claimant would be willing to take proceedings. Legal Aid was granted to her using devolved powers on an emergency basis. Because the first claimant does not live very close to the South Hook terminal it was thought that there might be doubt as to her standing in respect of that proposal, so the second claimant, who lives closer to the South Hook terminal, volunteered to be a claimant in January 2005. He too was granted Legal Aid using devolved powers on 6th January 2005. It is plain that the claimants are, for all practical purposes, the standard bearers on behalf of the Safe Haven group.
44. On 1st December 2004 Mr Buxton wrote a second warning letter to the first defendant, with copies to the second defendant and the first to third interested parties. That letter said in part:
"You will be aware that residents are concerned about the acute potential danger posed by the proposed terminals. As documented by the Health and Safety Executive, there is the potential for a flammable gas cloud 'engulfing the densely populated developments of Milford Haven (town), Neyland, or Pembroke Dock'."
45. The letter then set out what are described as outline reasons for the residents' concerns, but those concerns were set out in some detail in six numbered paragraphs. They include all of the matters which were subsequently incorporated into the grounds in the claim form. The letter also mentioned the South Hook site and said this:
"We are not blind to the fact that the Exxon Mobil proposal received consent about eight months ago. We anticipate you might suggest that any challenge to that is now out of time. To pre-empt that, and quite apart from several points that would lead to the Court extending time for judicial review in any event, we would remind you of the obligations of your authority in relation to EIA as discussed in Wells v Secretary of State for the Environment (Jan 2004).
"Although not in the form of a judicial review protocol letter, we would welcome your comments on the points raised herein by return so that we can take further instructions. Particularly, if we have said anything factually incorrect, please let us know so time is not wasted.
"You can take it that, as presently informed, it is likely that judicial review proceedings will be taken by 12th January 2005, unless you can satisfy us that there is no substance to any of the concerns expressed."
46. The pre-action protocol letter followed on 22nd December 2004. As noted above, the claim form was filed on 4th March 2005 and served on the defendants and the first and second interested parties on or about 10th March. Although the third and fourth interested parties were named as interested parties it appears that they were not served until a somewhat later date. The 4th March was a Friday, thus the claim form was filed on the last working day before the three month period, in respect of the decision dated 7th December 2004, expired. Although it was filed just within the three month period prescribed by CPR 54.5, there can be no doubt that the challenge to this decision was not made promptly and that there was undue delay on the part of the claimants. They had known for nearly two months prior to 7th December 2004 that a hazardous substances consent would be granted. For some time they had believed that a hazardous substances consent had actually been granted on 12th October 2004. They knew the grounds on which they wished (subject to legal advice) to challenge the grant of consent, which grounds were eventually to be incorporated into the claim form.
47. Safe Haven, of in which they were active members, had obtained informal legal advice immediately prior to and after the meeting on 12th October, had been aware of the possibility of judicial review, and had instructed a solicitor with considerable expertise in the environmental law field, Mr Buxton, over a month before consent was issued on 7th December 2004. It is clear from Mr Buxton's letter, dated 1st December, that all of the concerns of Safe Haven which eventually found their way into the claim form were appreciated by him prior to the grant of consent. In these circumstances filing the claim at the very end of the three month period was not acting promptly.
Is there a reasonable objective excuse for applying late?
48. Mr Purchas sought to justify the time taken (he did not concede there had been any want of promptness or delay in challenging the decision of 7th December 2004) by reference to the mass of documentary material, and what he described as the labyrinthine decision-making process. I do not accept that as an explanation for the delay. It is true that there is a mass of material, but that is because the claim form adopted a "scatter gun" approach and sought permission to challenge not merely the decision on 7th December 2004 in respect of the Dragon site, but also the earlier decisions in respect of that site going back some 18 months, and the decisions going back some 12 months in respect of a wholly different site, South Hook. The grounds do not attempt to differentiate between the two sites or the different decisions in any way.
49. Insofar as the complaints relate to the lack of a comprehensive Environmental Impact Assessment and/or the failure of the Environmental Impact Assessments to take account of marine risks, they would appear to be more appropriately directed at the grants of planning permission rather than the hazardous substances consents which are required for the presence of hazardous substances on, over, or under land (see section 4 of the Hazardous Substances Act).
50. Insofar as the claimants contend that there was a fundamental misunderstanding as to the characteristics of LNG in the event of an escape, that point had been raised by Mr Maile [Main] as long ago as March 2004 and he had put it forcefully to the members of both the first and second defendants. If valid, it would equally have applied to the hazardous substances consent granted by the first defendant for the South Hook site on 2nd April 2004. It was not a new point that had only arisen on 12th October 2004.
51. In effect, the claimants were using the final decision in respect of the Dragon site as a peg on which to hang challenges that were way out of time to all of the other decisions. A challenge to the decision of 7th December 2004 alone could easily have been filed by the end of that month, bearing in mind the claimants' state of preparedness at the beginning of December as described above.
52. Although it was suggested in the claim form that the claimants did not initially appreciate the full nature of what was being contemplated or its implications because of what was described as "misleading information", as particularised in Appendix A6, Mr Purchas did not advance this as a reason for any delay on the part of the claimants. In my view he was right not to do so. For the record, I should make it clear that the defendants and the interested parties strongly disputed the suggestion that any of the information supplied during the consultation process was misleading.
53. In an attempt to address concerns that had been raised about the safety of LNG, not at that stage by the claimants, the second interested party had provided a number of non-technical answers to questions which were published in a local newspaper, the Western Telegraph, on 3rd March 2004. Those answers did not satisfy those who were then objecting to the second interested party's project and in answer to questions from the second defendant, the third interested party provided more detailed answers and a summary of those further questions and answers was published on 11th March 2004.
54. Whether the original answers are described as unduly simplistic or as misleading, they had been amplified by answers from the third interested party and challenged by Safe Haven long before the grants of hazardous substances consent for the two sites in April, August and December 2004 respectively. The information provided by the second and third interested parties in or about March 2004 had no bearing whatsoever on the claimants' delay in applying for judicial review after 7th December 2004.
55. Paragraph 84 of the claim form referred to the decision of the European Court in Wells (above). In his submissions Mr Purchas relied on this decision as authority for the proposition that this court was under a duty to exercise its powers so as to secure compliance with the EIA Directive. Securing compliance was of particular importance in the circumstances of the present case because the claimants' rights under Article 2.1 of the European Convention on Human Rights were engaged.
56. Wells was considered by the Court of Appeal in R (on the application of The Noble Organisation Ltd) v Thanet District Council & Ors  EWCA Civ 782 (dated 28th June 2005). The claimants had challenged an approval of reserved matters granted by the defendant upon the basis that there had been no Environmental Impact Assessment. Auld LJ (with whom Mummery and Gauge LJJ agreed) said this in paragraphs 51 and 52:
"51. As I have noted in paragraph 17(iii) above, the Judge, in paragraph 48 of his judgment, distinguished Wells in that, there, the issue was whether an earlier permission could be revoked or modified rather than whether it could be treated as invalid, an issue that is expressly reserved by the third ruling in Wells to be a matter for national courts applying their own procedural rules. For convenience, I repeat here part of the Judge's words that I have set out:
'What the Court said in Wells about the obligation to nullify the consequences of a breach of the Directive is not to be taken as calling into question the validity of earlier decisions which are no longer open to challenge under domestic law.'
"52. Mr Gordon [who appeared on behalf of the claimant] submitted that the Judge's ruling in that paragraph mis-characterised the European Court's ruling as giving overridding status to formal validity of earlier decisions by reference to member-state procedural autonomy. Such an outcome, he suggested, would render the ruling in Wells a 'dead letter'. He submitted that, on the contrary, the Court's reasoning in that case was that member-state procedural autonomy is subservient to the principle of effectiveness of EU law. This is how the Court put it at paragraph 70 of its judgment..."
Auld LJ then set out paragraph 70 of the ECJ's judgment. Having summarised the claimant's arguments Auld LJ continued in paragraphs 58 to 61:
"58. On the simple issue whether our domestic procedural rules infringe the EU principle of effectiveness by rendering the exercise of the relevant community rights 'impossible in practice or excessively difficult', my firm view is that it does not. It has to be remembered too that the European Court in Wells was simply concerned with EU law, not as to the position in national law; the conflict, if any, between the two was not resolved, because on remission of the case to the domestic court, the matter was resolved by a consent order.
"59. In considering whether a national procedural provision renders application of community law impossible in practice or excessively difficult, it is necessary, as the European Court stated in Peterbroeck, at para 14, to look at its role in its domestic context and in the light of the basic principles of the domestic legal system, including the principle of legal certainty. As to domestic rules of limitation, the Court has upheld the importance of giving certainty to public decisions by holding that the application of reasonable time limits for challenging them does not infringe the principle of effectiveness; see Case 33/76 Rewe v Landwirtschaftskammer Saarland  ECR 1989, where the Court, at 1997, stated:
'Applying the principle of co-operation laid down in Article 5 of the Treaty, it is the national courts which are entrusted with ensuring the legal protection which citizens derive from the direct effect of the provisions of Community law.
Accordingly, in the absence of Community rules on this subject, it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which citizens have from the direct effect of Community law, it being understood that such further conditions cannot be less favourable than those relating to similar actions of a domestic nature.
In the absence of... measures of harmonisation the right conferred by Community law must be exercised before the national courts in accordance with the conditions laid down by national rules.
The position would be different only if the conditions and time-limits made it impossible in practice to exercise the rights which the national courts are obliged to protect.
This is not the case where reasonable periods of limitation of actions are fixed.'
"60. Moreover, there is authoritative domestic and EC authority for the proposition that proceedings for judicial review afford adequate protection for community law rights in respect of the validity of public actions; see on this issue Bourgoin SA v Ministry of Agriculture [QB] 716, CA, per Parker LJ and Nourse LJ at 785BE and 789G-790D respectively; and Upjohn Ltd v Licensing Authority established by the Medicines Act 1968  1 WLR 927, ECJ, at paras 33-37.
"61. Applying those principles to the facts of this case, if either of the two outline planning permissions required and/or were not the subject of valid screening exercise, there was a clear domestic remedy, if exercised promptly, for quashing either of them and/or the screening opinion at the leisure park outline permission stage. The domestic requirement of promptness in the exercise of the remedy, as Miss Robinson observed, strikes a reasonable balance between the need to provide a remedy and, in this instance, the public interest in the effective administration of planning controls and legal certainty. Accordingly, in my view, this challenge to the reserved matters screening opinion was not deprived of effect by the Council's reliance on the formal validity of the outline permissions and the screening opinion in relation to the latter, since they had been challengeable by judicial review, if sought promptly - a sufficient remedy as a matter of community law."
57. That decision is binding upon me unless it can be distinguished. Mr Purchas submitted that in the passage in Wells, cited by Auld LJ in paragraph 52 of his judgment, the European Court was dealing with the third question in that case, whether the state was under a continuing duty to remedy its failure to provide an EIA, and not with the fourth question, whether it was open to an individual citizen to challenge the state's failure to require an EIA. For present purposes, that is a distinction without a difference. There is no suggestion in Wells that individuals wishing to challenge a failure to require an EIA should not be governed by the procedural rules of each member state, provided that those rules must not render such a challenge impossible in practice or excessively difficult.
58. In the present case there was no good reason why the three month time limit was not observed in respect of the permissions and consents granted between March 2003 and September 2004 and no good reason why the decision of 7th December 2004 was not challenged until 4th March 2005.
What, if any, is the damage in terms of hardship or prejudice to third party rights and detriment to good administration which would be occasioned if permission were now granted?
Hardship/prejudice to third parties
59. The first and second interested parties have filed particulars of the manner in which they relied on the permissions and consents and the extent to which they would be prejudiced if relief was granted. It is unnecessary to rehearse the detail in the witness statements.
60. In summary, the first interested party, in reliance on the planning permissions granted on 10th September 2004, entered into a contract for the engineering procurement and construction ("the EPC contract") of the Dragon terminal. The commencement contract date was 30th December 2004. The total cost of the EPC contract is around £180 million out of a total cost for the terminal of £225 million. Construction is programmed for completion by December 2007 and work is proceeding apace. By last month £38.4 million of costs had been incurred with additional costs payable if the contract had to be terminated of 17.8 million; a total contractual exposure of 56.4 million at June 2005. The existence of these proceedings is also inhibiting the first interested party's arrangements for obtaining finance for the project.
61. The South Hook terminal is one element of a £7 billion investment by Qatar Petroleum and Exxon Mobil to produce and sell natural gas located in a natural gas reservoir off the north coast of Qatar. The project involves the construction of extensive facilities in Qatar, the procurement of 16 LNG tankers, and the construction of a UK terminal, South Hook.
62. Looking at South Hook alone, the second interested party has entered into a number of commercial agreements relating to the construction, operation and financing of the terminal. A site preparation contract with a value of £9 million was let on 27th September 2004 and a Phase 1 engineering, procurement, construction and commissioning contract was entered into on 1st November 2004. On 31st December 2004 that contract was extended to Phase 2. The combined contract value of phases 1 and 2 is in excess of £560 million. To date, the second interested party's contractors have been paid £22 million under this contract.
63. The witness statement of the second interested party's project manager, Mr Calvo, gives details of further contracts. For example, loan agreements in the sum of £600 million were entered into on 15th December 2004. By 4th March 2005 site preparation works were 60 per cent complete and by mid-May they were 85 per cent complete. About 1 million cubic metres of material from the LNG tank storage area had been removed and a further 120,000 cubic metres of contaminated material had been removed.
64. Both the first and second interested party make the point that any delay in the projects will not merely affect their own commercial interests, but will also affect the supply of natural gas to the United Kingdom. Demand for gas in the United Kingdom is expected to increase whilst the UK's own natural gas production is expected to fall. The two terminals at Milford Haven will make a substantial contribution to meeting the resulting shortfall.
65. Mr Purchas pointed out that the first interested party had been prepared to commit itself before the resolution to grant a hazardous substances consent on 12th October 2004. That is so, but the decision to enter into the contract commencing on 30th September must be seen in context. Prior to the earlier grant of planning permission, on 19th March 2003, there had been the resolution to grant hazardous substances consent on 11th March 2003. A hazardous substances consent was required for the presence of LNG, but the necessary preparatory works could lawfully be commenced once planning permission had been obtained in September 2004. In respect of the South Hook site Mr Purchas submitted that the second interested party had chosen to enter into further contractual arrangements after it had been placed on notice by letter of 4th November that a challenge was possible, and then by letter of 1st December that a challenge was likely.
66. He submitted that there was no evidence that either the first or second interested party would have acted any differently if the decision of 7th December 2004 had been challenged within the three month period. That is no doubt true of the second interested party, if the decision of 7th December 2004 is considered in isolation. There would have been no reason whatsoever for the second interested party to have stopped work on the South Hook site merely because a consent in respect of the rival Dragon site had been challenged.
67. It may well also be true of the first interested party. Both of these terminals are very large scale, hugely expensive, technically complex, developments. Once such developments are commenced it is well understood that the commercial imperatives are such that they rapidly develop a momentum of their own, and halting them becomes increasingly disruptive and expensive, hence the need for prompt challenges in planning cases.
68. Promptness is not to be considered in the abstract. One is concerned with the practical implications of any lack of promptness. The interested parties could not reasonably have been expected to halt their multi-million pound contracts in response to Mr Buxton's very preliminary letter dated 4th November 2004, or his letter dated 1st December 2004, which was expressly not a pre-action protocol letter.
69. By the time a considered response to the pre-action protocol letter, written on 22nd December 2004, could have been reasonably expected in early 2005, both projects were under way. It is not disputed that the first and second interested parties continued to incur substantial expenditure as the months progressed.
70. The claimants' case focuses on the challenge to the consent dated 7th December 2004. It is true that the first interested party proceeded at its own risk prior to that date, but it had the benefit of planning permissions and of two resolutions in March 2003 and October 2004 to grant hazardous substances consent. It is fanciful to imagine that either the first or the second interested party would have pressed on with their applications for hazardous substances consent if the claimants had mounted timely challenges to the grants of planning permission in March and/or November/December 2003, or that the defendants would have determined the applications for hazardous substances consent until any doubts about the validity of those planning permissions had been resolved.
71. Similarly, if the planning permissions dated 10th September 2004 in respect of the Dragon site had been challenged promptly, it is most unlikely that the first defendant would have acted on the resolution on 12th October and issued the hazardous substances consent before the challenge to the planning permissions was resolved.
72. In summary, and despite Mr Purchas' valiant attempts to persuade me to the contrary, it is clear that the grant of relief would cause really significant damage in terms of hardship and/or prejudice to the rights of the first and the second interested parties. Even the grant of permission at this stage, with the resulting uncertainty and potential for delay, would cause them very substantial prejudice. I accept that hardship is a relative concept and that the first and the second interested parties are substantial commercial organisations, nevertheless, they have entered into very large financial commitments and any delay would be correspondingly expensive and disruptive.
Detriment to Good Administration
73. In paragraph 39 of the court's judgment in Lichfield Sedley LJ noted the infrequency of decisions dealing with this aspect of delay and added:
"But a further reason for the relative infrequency of decisions based on good administration is in our view that it can come into play only (a) where undue delay has occurred, and (b) - in practice - where the consequent hardship or prejudice to others is insufficient by itself to cause relief to be refused. In such a situation it can rarely, if ever, be in the interests of good administration to leave an abuse of public power uncorrected. Indeed Fordham records the decision of May J in R v Mid-Warwickshire Licensing Justices, ex parte Patel  COD 251 that, despite undue delay, the interests of good administration were served not by withholding but by granting relief."
That passage in the Court of Appeal's judgment is obiter because the court had concluded that there was no undue delay in that case (see paragraph 40 of its judgment).
74. On the facts of this case, I am satisfied, for the reasons set out above, that there was undue delay in challenging all of the decisions, including the final decision on 7th December 2004, and that the substantial hardship and/or prejudice to the first and second interested parties would be sufficient by itself to justify a refusal of permission.
75. I am also satisfied that this is a case where it would be very detrimental to good administration to grant permission to challenge a number of decisions going as far back as March 2003. As mentioned above, the existence of a valid planning permission for a proposed development is a highly material consideration in any decision whether or not to grant a hazardous substances consent. In determining the applications for hazardous substances consent, the defendants and consultees were entitled to rely on the validity of the relevant planning permissions. Had the permissions been challenged promptly, the defendants would have put consideration of the hazardous substances consent applications on hold until the dispute had been resolved. The various permissions and consents are all shown in the planning register. Members of the public, including adjoining landowners, local residents and businesses, are entitled to rely on decisions shown in the register.
76. The claimants point to the importance of the issues at stake for them: the potential impact of these very substantial developments. But that argument cuts both ways. These are very substantial developments with significant employment and economic implications, not merely for Milford Haven and the surrounding area, but also for the United Kingdom in terms of maintaining the supply of natural gas. It is particularly important that the public, as well as local planning authorities, should be able to rely on decisions in respect of developments having such wide implications. It would be highly detrimental, to good administration to allow challenges to such important land use decisions with such far reaching implications to be made well out of time.
Does the public interest require that the application should be permitted to proceed?
77. This was the main thrust of Mr Purchas' submissions on behalf of the claimants. He stressed the importance of their concerns which related not merely to the United Kingdom's obligation to implement the EIA directive, but also to the claimants' rights under Article 2(1) of the Convention. He cited a number of authorities which established the principle, which was not disputed by the defendants or the interested parties, that the importance of an issue may justify a grant of permission to apply for judicial review even though there has been delay.
78. The principle is not in doubt, but most of the cases cited by Mr Purchas in support of the proposition were not concerned with town and country planning, thus there was no question of a project gathering momentum on the ground following the grant of permission. Indeed, in most, if not all of the cases where permission to apply for judicial review was granted, the court had concluded that there would be no, or at least no significant, prejudice to the interests of third parties or to good administration, bearing in mind the relief sought by the claimant.
79. While the relevant principles are well established, each decision as to whether or not to grant permission where there has been delay will turn very much on its own particular facts. Decisions taken in the context of very different statutory regimes are at best of limited assistance. In the one comparable planning case cited, R v North West Leicestershire District Council ex-parte Moses  Env LR 433, while the Court of Appeal recognised that the importance of the substantive issue raised was material to the exercise of the court's discretion in respect of the delay, permission was refused because quashing the planning permission in question would both cause prejudice to the developer and be prejudicial to good administration (see per Simon Brown LJ at page 452).
80. The claimants place particular reliance on the decision of Maurice Kay J in Greenpeace No 2 (see above), but in that case the application for permission and the substantive hearing had been heard together. The court had not merely heard full submissions on the merits, but had concluded that the claimants' submissions on the principal issue in the case, the geographical scope of the Habitats Directive, were correct. In those circumstances it is not surprising that Maurice Kay J (as he then was) concluded that the balance came down in favour of extending time (see pages 263 to 264). Having construed the Habitats Directive, the court gave declaratory relief in favour of the claimant to that effect.
81. Although much of the claimants' skeleton argument before me was devoted to the merits of the claim, I have not heard full argument on the substantive issues which are vigorously contested by the defendants and the interested parties. They deny that there was any misunderstanding as to the characteristics of LNG in the event of an escape. Insofar as the "misunderstanding" is said to have resulted from the "misleading" information published during the consultation exercise, fuller information was subsequently provided by the third interested party (paras. 52 - 54 above). The fourth interested party has given details of the manner in which it assessed the marine traffic implications of the proposals. There is a dispute as to whether the Environmental Statements dealt with the associated dredging and the improvements to the jetties; and as to whether the pipeline and power station (both of which will need to be authorised under separate statutory procedures) should be regarded as part of the overall project for the purposes of the Environmental Statements.
82. As mentioned above, both the grounds of challenge and the relief sought (quashing all the decisions) are very different from the issue of public importance that was raised in Greenpeace No 2. It would not be possible to resolve the substantive matters in dispute without examining in considerable detail the decision-making processes that were employed by the first and the second defendant in respect of each of the decisions under challenge. In these circumstances it would not be right to start from the premise that it would not be in the interests of good administration to maintain the decisions because they were unlawful, as on occasions the claimants' submissions appeared to do.
83. I do not doubt that the issues raised in the claim are of considerable local importance in Milford Haven and the surrounding area. Equally, I do not doubt the genuineness of the claimants' concerns and that they fairly represent Safe Haven's concerns. But it is also fair to say that Safe Haven's views are very far from being representative of the views expressed by the very wide range of consultees, including such bodies as the Town Council and relevant community councils. By way of example, the officers' report for the meeting on 10th October 2004 noted that the Milford Haven Town Council recommended approval of the application and the Community Council asked for its previous representations to be taken into consideration; these raised no objection in principle but asked that public concerns about the project, including safety issues, should be fully and publicly addressed.
84. The claimants represent a point of view held by some residents who live near the terminals. All of their concerns were raised at the relevant meetings of the first and second defendant since March 2004. If the claimants wished to challenge the defendants' decision on the 7th December 2004 on the basis of those concerns they could and should have done so much earlier, and in the case of all the other decisions, very much earlier, than 4th March 2005.
85. For these reasons I refuse to grant permission to apply for judicial review because the challenge was not made sufficiently promptly and there has been undue delay and quashing the decisions would substantially prejudice the rights of the first and second interested parties and cause them substantial hardship, and would be very detrimental to good administration.
86. MR STRAKER: My Lord, in those circumstances, if I can repeat the order that submissions were made to you on behalf of the defendants and go further, on behalf of the National Park Authority I would invite your Lordship to make an award of costs in favour of that Park Authority.
87. My Lord, there are two matters I should mention in connection with it. First, under the heading of "Mount Cook" and, second, under the heading of "Funding". In respect of Mount Cook your Lordship will be alive to the fact that the Court of Appeal has considered the approach to attended applications for permission and has indicated that ordinarily a defendant such as the National Park, which states its grounds of opposition, should receive its costs for acknowledgment of service, but that ordinarily it ought not, if it attends before the court, to receive its costs of attendance, but that, of course, is subject to, as was described in Mount Cook -- that the court could do so if it were considered to be exceptional, or there were considered to be exceptional circumstances.
88. I would respectfully contend before your Lordship that this is such a case for these reasons: first, that this was a case in which it was contended that there had been misleading information and, in those circumstances, it is appropriate for, especially the party which takes the lead in the consultative exercise, to attend.
89. Second, it is exceptional, in my respectful submission, to roll together the two, as your Lordship stated, distinct sites with distinct decisions made in respect of each.
90. Further, it is exceptional to roll together the variety of decisions which were placed before your Lordship.
91. My Lord, it is also exceptional, in my respectful submission, to generate so much material, partly in consequence of everything that I have stated and partly in consequence of the approach generally, so as to secure as was occasioned to your Lordship's direction, and then the attendance before your Lordship.
92. So, in my respectful submission, the Mount Cook hurdle, if it be so described as such, is easily satisfied by the National Park Authority before your Lordship. I do not say anything more about that aspect unless your Lordship would wish me to do so.
93. My Lord, the other aspect I touch upon quickly if I may, because there was some discussion at the bar before your Lordship came into court, is as to funding.
94. MR JUSTICE SULLIVAN: Yes.
95. MR STRAKER: Your Lordship may indeed have seen certain of the correspondence relating to whether or not there is or there is not a certificate relating to that under the Legal Aid funding regime. My Lord, I am indebted to my learned friend, Mr Wolfe, particularly in this regard, but it is right that I should indicate the basis upon which I proceed. He points out that your Lordship can, in the circumstances, simply make, if your Lordship is minded to do so of course, an order for costs, in what I may describe as the conventional way, against the claimants and then such protection as is available to them, on the basis of any certificate which has been issued, is dealt with elsewhere in the assessment exercise which occurs.
96. My Lord, that, as far as my clients are concerned, is a perfectly acceptable approach, but it is only right that I should mention the basis upon which it is put before your Lordship. So that is the stated position of the Authority.
97. MR JUSTICE SULLIVAN: So instead of me saying, "Not to be enforced without the order of the court", effectively that is dealt with elsewhere?
98. MR STRAKER: My Lord, that is so. I am indebted to my learned friend for those observations and that is the basis upon which I am proceeding. I thought it right so to state that unless any difficulty emerges in connection with it hereafter, but it does overcome the technicality of your Lordship saying: you have your costs up to and thereafter not to be enforced without leave of the court. It simply enables all of that protection to be dealt with behind the scenes.
99. MR JUSTICE SULLIVAN: I would have thought, in principle, that must be much the better course. Do you know that -- I see it has been sent to your instructing solicitors. I received a letter from Mr Buxton, dated today, dealing with public funding. Have you seen that letter? It is that letter.
100. MR STRAKER: My Lord, that is right. It is the one marked for the attention of your clerk, my Lord, yes.
101. MR JUSTICE SULLIVAN: Yes. On the basis that if they are Legally Aided then on any basis they ought to get the conventional protection, whether from me or from some costs judge, and provided they can get it from a costs judge I am satisfied and I am happy to proceed on that basis.
102. MR STRAKER: I am much obliged, my Lord. My Lord, that is all I wanted to say and I have done it under those two headings. I am grateful, my Lord.
103. MR JUSTICE SULLIVAN: Thank you. Shall we just go through in turn?
104. MR LITTMAN: My Lord, I have really nothing much to add to what my learned friend Mr Straker said. I am in a very similar position except that my authority did not take the lead in respect of the South Hook matters but was solely concerned with the Dragon decisions, so difficult it seemed, at one stage, to extricate it from other decisions with which your Lordship has dealt. Otherwise I echo what your Lordship has just heard.
105. MR JUSTICE SULLIVAN: Yes.
106. MR ROBB: My Lord, I appear for the first interested party, Dragon. I am instructed to make no application for costs.
107. MR JUSTICE SULLIVAN: Thank you very much. That is Mr Robb?
108. MR ROBB: That is right.
109. MR PLEMING: My Lord, on behalf of the second interested party I also make no application, but could I, in a few words, explain, so that it is recorded.
110. MR JUSTICE SULLIVAN: Yes.
111. MR PLEMING: My Lord, we note that the claimants do have the benefit of public funding. If it had not been otherwise there would have been an application for costs. There has been displayed, as your Lordship has described, a "scatter-gun" claim which has been extremely costly and consuming on time and resources. Third, South Hook has been the subject of specific criticisms that have been dealt with on the evidence. However, as they are presently publicly funded, my clients do not seek the costs thrown away by these proceedings. However, so there be no misunderstanding, this position only applies to today, if notwithstanding your Lordship's clear judgment on the issue of delay, the claimants or Safe Haven continue unsuccessfully to seek leave against South Hook it is quite possible that the court will then be invited to make a costs order in its favour.
112. MR JUSTICE SULLIVAN: Thank you Mr Pleming. Now, third interested party.
113. MS MCMAHON: My Lord, I appear on behalf of the third interested party.
114. MR JUSTICE SULLIVAN: Ms McMahon?
115. MS MCMAHON: Yes. I am instructed to make no application, but if I could just deal with, very quickly, and with some diffidence, with what may have been a small slip of the tongue in your Lordship's judgment.
116. MR JUSTICE SULLIVAN: All corrections gratefully received. It is terribly difficult when you are going through a mass of dates and permissions and so on. Where?
117. MS MCMAHON: It occurs approximately halfway through, my Lord, when you were referring to the chronology of the service of the claim form.
118. MR JUSTICE SULLIVAN: Yes.
119. MS MCMAHON: According to my note, and it may well be that my note is what is imperfect, you made a remark to the effect that the claim form was served on the defendants and the interested party, including my client, the third interested party, on or about 4th March.
120. MR JUSTICE SULLIVAN: Yes, 10th March I thought.
121. MS MCMAHON: Yes, I am sorry, my Lord.
122. MR JUSTICE SULLIVAN: First to third interested parties -- I had got the impression, rightly or wrongly, that they had been served around about then. I know there were slightly different dates.
123. MS MCMAHON: My understanding is that the first and second interested parties were served on or about 10th March, but my client was not so served. My client was named as an interested party by the first defendant and were served on or about 8th April 2005, which is, of course, why our acknowledgment of service was not submitted until towards the end of April.
124. MR JUSTICE SULLIVAN: Right, so subject to what Mr Maurici tells me for the fourth interested party, I should ask the shorthand writer to amend the judgment to say, when going through the chronology, the first and second interested parties are served on or about 10th and although the third and fourth interested parties were mentioned as interested parties they were not served until some later stage.
125. MS MCMAHON: I am grateful, my Lord.
126. MR JUSTICE SULLIVAN: I am quite happy with that. It is in there somewhere. Is that right, Mr Maurici? I got that impression, certainly in respect of the Port Authority?
127. MR MAURICI: Yes, my Lord. Our position is pretty much the same in that we were named by the first defendant, we were not named by the claimant. Then, as I understand it, we became aware of proceedings by having them served on us, I do not think by the claimant but (inaudible) on 7th April.
128. MR JUSTICE SULLIVAN: I think the judgment will probably do to convey the picture anyway.
129. MR MAURICI: My Lord, I do have an application for costs on behalf of the fourth interested party, the Port Authority. I seek an order that the claimant pay the costs incurred by the Port Authority in respect of its acknowledgment of service on standard Mount Cook principles. My Lord, I say that I am entitled to those costs in respect of Bolton principles for these reasons, my Lord. First of all, as your Lordship's judgment makes clear, one aspect of the claim was that the marine risks were not properly assessed. My Lord, that issue, as the first defendant and others recognised, necessitated the involvement of the Port Authority, because the Port Authority was an active and important participant in the process of risk assessment. My Lord, you will know that the summary of grounds served by the Port Authority focus primarily, if not almost wholly exclusively, on its role and, in particular, its role in the risk assessment process.
130. So, my Lord, I say that in terms of Bolton there was a separate issue and a separate interest that my client was entitled to be heard on. The issues having been raised, the Port Authority was, as a number of the defendants recognised, best placed to assist the court in dealing with those issues. In that regard we provided summary grounds and therefore I seek costs limited to those summary grounds.
131. My Lord, unless I can assist you further those are my submissions. Again, my Lord, just to say on the Legal Services position, I am content to seek on the same basis as Mr Straker, which is your Lordship makes the order, if your Lordship is minded to do so, and if there is any protection to be applied that can be done at a later stage.
132. MR JUSTICE SULLIVAN: Thank you very much.
133. MR PURCHAS: My Lord, can I firstly apologise to your Lordship. On Friday at 4.30 I was not aware there was not a certificate formally on the file. I think I should formally ask your Lordship, therefore, for 7 days to file a certificate. We have, in fact, had an additional letter from the Legal Services Commission. We have had a further letter from the Legal Services Commission. We do not need to trouble your Lordship further with that, but I simply ask for 7 days to file the certificate.
134. MR JUSTICE SULLIVAN: 7 days from today anyway, to file a certificate.
135. MR PURCHAS: As I understand it, it is formal matter and otherwise, again in reliance on my learned junior, I follow the course that my learned friend, Mr Straker, referred to.
136. My Lord, the second point, I do resist both or all three applications to costs. Can I start with the Authority's first of all. Essentially the costs, the costs of today, those are costs, following your Lordship's ruling, that were concerned with a hearing on delay. Your Lordship made that very clear in your Lordship's ruling. Therefore, reference to evidence, whether or not there was misleading statements made, did not arise in the context of this hearing and, in my respectful submission, there was nothing exceptional in that respect.
137. Secondly, the second point made, so far as the rolled-up nature of the claim was concerned, those behind me believed, and indeed it looked in the way it came forward, was at least the convenience of hearing the claims all together. Be that as it may, it did not affect the issue on delay as such, other than the fact that, as I submitted to your Lordship, and relied on the fact, that it did involve additional matters to be considered on behalf of my instructing solicitor.
138. In any event, in my respectful submission, notwithstanding the absence of anything exceptional in this matter, there cannot be any justification for more than one set of costs for the authorities here. My learned friends have made clear that essentially they used one or other of them to present the case. The cases were identical on delay, and, in my respectful submission, even if your Lordship is against me on the Mount Cook point, there could not be a basis for making more than one set of costs in my submission.
139. I do not need to deal with the other interested parties expect for the Port Authority. In my respectful submission, they really had no part to play; certainly no part to play in the delay issue. The point is made, properly by my learned friend Mr Maurici, to limit his application to the acknowledgment of service. In my respectful submission we were right in the outset not to serve them. It is not their decision. They have no commercial interest that I am aware of that would be directly affected, even if that was to justify an award of costs, and I certainly would not concede that. They are a further step removed. In my respectful submission, the only role they might have is providing a witness statement if they were asked to by the claimants, or by the defendants, or by the properly interested party. In my respectful submission, there is no ground whatever for the application that has been made.
140. My Lord, I was not going to say anything more on costs, but I do have an application for permission to appeal.
141. MR JUSTICE SULLIVAN: Yes.
142. MR PURCHAS: Is it convenient to go on to that at this stage?
143. MR JUSTICE SULLIVAN: I would have thought it was probably better, yes.
144. MR PURCHAS: It is always rather invidious, my Lord, after your Lordship's persuasive judgment, and I think I have run to seven grounds. I am going to deal with them rather shortly for reasons that will not escape your Lordship. My Lord, the first, we would respectfully submit, is the error in principal approach. We put it in two ways: first, it is, as it were, the pure Article 2 point and the obligation on the state to preserve life; and the second is the presumption in favour of ensuring that those rights should be protected and that is Wells and the other matters I submitted to your Lordship. So that is the first broad ground we would rely upon.
145. I would add as this sub-text: in our respectful submission, to balance the commerciality and economics of gas supply with human life, it is not the sort of balance one would, in other circumstances, make with perhaps an ordinary planning case.
146. My Lord, the second ground, which is related to that, my Lord, we would seek to challenge your Lordship's approach in the context, again, of Article 2, in comparing the rights of the individual to life with the democratic decisions that are often affected with local authority or government action or indeed pressure groups. Your Lordship used the memorably attractive expression "the standard bearer of the Safe Haven group". My respectful submission is that ought to be approached on the basis of my clients' rights to life and its protection.
147. The third is a more limited point in the sense that it goes to Dragon expressly. My Lords, we would wish to challenge, based on the European decisions in Guygee(?), Dulifernanzai(?) and Preston, that promptness, as a procedural requirement, offends the principle of certainty, in that it is neither certain nor predictable in advance as a condition of accessibility. That is particularly important in cases of this kind. We can only know when we come to see your Lordship whether or not we are too late.
148. I would add to that, that in a case where the interested parties made no point on the effect of the passage of time, notwithstanding the letters that have been sent, that that is further reinforced. That is a matter that your Lordship did not refer to in your Lordship's judgment.
149. My Lord, the fourth point is partly Dragon, but to an extent the South Hook decisions. Your Lordship expressed the conclusion that the grant of planning permission was plainly a most material consideration in determining the hazardous substances consent. In my respectful submission that was both wrong in approach and on the facts here; that on the evidence it was plain that the Authority were properly approaching the question of the risk, insofar as they considered the risk, at the time of the hazardous substances consent. I will not go into all the evidence on that.
150. But in any event, my Lord, in my submission, your Lordship, I would be submitting, erred in relying on the March 2003 consent for Dragon particularly, and the resolution to grant the hazardous substance consent at that time, as in some way predicating, or being highly material, in the context of the later hazardous substances consent. If nothing else, the question of risk has and properly ought to be considered in the light of all the evidence, all the advice, and of particular opinion at the time the decision was made.
151. Fifthly, in my respectful submission, and a ground I rely upon, is that in a case such as this, where the interested parties proceeded whether or not there was a hazardous substance consent, or, as your Lordship effectively found, almost irrespectively of that, had a momentum of its own, that is a matter that your Lordship and a court ought properly to place or take into account as being highly material; whether or not plainly there was prejudice or hardship arising out of the additional delay.
152. Sixthly, my Lord, we would submit, with deference, that your Lordship's approach to the merits was not the correct approach. Where a court decides, simply, to look at delay, then it should assume that the case of the claimants is well made and that it should not determine delay on any other basis. In other words, it should see whether delay should rule out the claim in any event. Your Lordship's comparison with Greenpeace No 2, in our respectful submission, was not the appropriate approach.
153. Finally, my Lord, your Lordship said that if there had been a challenge to the permission issued in September 2004, then it was -- I think your Lordship said "highly probable", I do not have the words in mind -- that the authority would not have proceeded to deal with the hazardous substances consent. Your Lordship we do not believe that there was evidence to that effect or that that was a proper conclusion. But, my Lord, that is a very minor point.
154. My Lord, I apologise for taking a little time just running through the points, but, my Lord, I would ask for permission to appeal on the basis that they disclose a reasonable prospect of success.
155. MR JUSTICE SULLIVAN: Thank you very much indeed. I do not need to trouble you. I will deal firstly with the application for permission to appeal. This is very much an exercise of the court's discretion and is highly fact sensitive. The Court of Appeal will interfere only if they discern some error of principle, or if the decision is plainly wrong. On the detailed criticisms raised in Mr Purchas' grounds I am not persuaded that there is a reasonable prospect of persuading the Court of Appeal that the decision was plainly wrong.
156. So far as the submission that there was some error of principle, I think I can merely say it would be for Mr Purchas to persuade the Court of Appeal of that proposition, certainly in respect of the argument about promptness. It is very much a matter for the Court of Appeal to decide whether it wishes that sort of challenge to go forward. But I am not persuaded that there is any argument relating to error of principle that has a reasonable prospect of success.
157. So for those short reasons, given that I have just given a very long judgment, I hope I will not be thought discourteous if I dismiss the application for permission to appeal to the Court of Appeal.
158. So far as costs are concerned, the first question is whether this is the kind of exceptional case where costs ought to be awarded at all in considering an application for permission to apply for judicial review. I am satisfied that it is such a case. Firstly, because the court itself ordered a hearing on the question of delay specifically, and, secondly, because it had been contended that the delay had been due to misleading information and also rolled in with that was the proposition that in some way these two applications had been kept quiet.
159. It seems to me it was, therefore, essential for the responsible planning authority to come along and explain what had actually happened, the extent to which the applications were public knowledge, and what information was or was not in the public domain. I also bear in mind that it was essential that the claims under challenge, and the basis on which they might be challenged, and the extent of delay in each case, was sorted out. Those certainly did not become clear until the claimant's skeleton argument had been provided.
160. Therefore, effectively, it was necessary to have a hearing at which the responsible decision-takers were present in order to sort out precisely what was being challenged when the decisions had taken place and the basis on which they had been taken. So, for those reasons, I am satisfied that it is an exceptional case which does justify the award of costs.
161. Although Mr Purchas says that there should not be two sets of costs, the fact is that the claimants chose to challenge a range of decisions which had been taken by two planning authorities and each of them had in fact, as it turned out, taken the lead in respect of a different application; one South Hook, one the Dragon application. So, in those circumstances, in my judgment, it is only reasonable that there should be two lots of costs in respect of the two decision-making bodies, the first and second defendants.
162. So far as the interested parties are concerned, either there are no applications for costs or we have the application for costs by the fourth interested party in respect of its acknowledgment of service. I can well understand why the fourth interested party put in evidence, and can well understand the proposition that it was right that it should have done so, nevertheless, I think one has to adopt a proportionate approach. We do have the two decision-making bodies here. They could have incorporated the material provided by one of the consultees, just one of many consultees, the Harbour Authority, in their material, and in all the circumstances I do not consider that it would be right to award costs even for the acknowledgments of service to the interested parties. It is very much a matter of discretion as to whether or not an interested party should get the costs of its acknowledgment of service when the decision-making body is responding in some detail.
163. So for those reasons the claimants must pay the costs, including the costs of today, to the first and second defendants; no order as to costs in respect of the interested parties, and I simply record, so it goes on the record, that the parties are agreed that the issue as to whether or not the claimants should have the protection that would normally be afforded to those who are in receipt of public funding, will be addressed at a subsequent stage. I simply place it on record that clearly, if on examination of all the relevant documents it is concluded that they are Legally Aided, then they must be afforded the appropriate protection, otherwise if they are not. That is the position. I have given the claimants 7 days to file the relevant certificates.
164. Is there anything else?
165. MR PURCHAS: My Lord, my learned junior just very sensibly is saying that your Lordship was kind enough to order on Friday that there should be Legal Aid Assessment, as I would call it, of our costs, simply to make sure that it is still getting on to the order.
166. MR JUSTICE SULLIVAN: Insofar as it is found to be appropriate, then Community Legal Aid assessment of the claimants' costs for the avoidance of doubt.
167. MR PURCHAS: I am very grateful.
168. MR JUSTICE SULLIVAN: Any more for any more? Right, thank you all very much.