Case No: C1/2007/1518
Neutral Citation Number:  EWCA Civ 1403
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION, ADMINISTRATICE COURT
(MR JUSTICE BEATSON)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: Friday, 30th November 2007
LORD JUSTICE TOULSON
LORD JUSTICE BUXTON
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THE QUEEN ON THE APPLICATION OF HARDY
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MILFORD HAVEN PORT AUTHORITY & ORS
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(DAR Transcript of
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Mr D Wolfe (instructed by Messrs Richard Buxton) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS REPRESENTED.
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(As Approved by the Court)
Lord Justice Toulson:
1. This is a renewed application for permission to appeal against Beatson J's refusal to give permission for judicial review of the respondent Port Authority's refusal to disclose documents relevant to the safety of proposals for the construction and operation of two liquefied natural gas terminals at Milford Haven. The construction of those terminals is now either complete or in its closing stages and they will shortly come into operation.
2. The litigation has a long and complex background. In paragraph 3 of his judgment, Beatson J summarised it as follows:
"The claimant is a resident of Milford Haven. She has previously sought permission to apply for judicial review of the grant in 2003 and 2004 of planning permission for the terminals under the Town and Country Planning Act 1990, and hazardous substance consents under the Planning (Hazardous Substances) Act 1990. The permission and consent were granted to Dragon and South Hook. The claimant's application, launched on 4 March 2005, was refused, as were applications to the Court of Appeal for leave to appeal and, pursuant to CPR 52.17, to re-open the refusal of leave to appeal: see  EWCA Civ 240 and 1008. The defendants in those proceedings were the Pembrokeshire County Council and the Pembrokeshire Coast National Park Authority. The Milford Haven Port Authority, Dragon, South Hook and the Health and Safety Executive were interested parties."
3. The decision to refuse judicial review in those earlier proceedings was given by Sullivan J in a reserved judgment. To understand the background issues and the context in which the present application is made it is necessary to refer to quite a bit of the judgment given by Sullivan J:
"1. 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 contended in their claim form that, first, 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....
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 acknowledgements of service also contended that permission to apply for judicial review should be refused on the ground of delay....
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 mattes 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...'"...
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 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....
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....
[Headings between paragraphs 58 and 59]
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...
67. ...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 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 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...
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."
The judge went on to consider the arguments based on article 2 before coming to his conclusions, which were as follows:
"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."
4. As is apparent from the judgment, the central points upon which the application were made was that there had been a failure to carry out a proper assessment of the potential environmental impact of the proposals and of the maritime risks.
5. Prior to the issue of that application, the appellant had asked for disclosure of documents of the kind which are the subject of the present application and, during the course of the judicial review proceedings, the request was renewed. Indeed, at one stage an application was made for disclosure of documents of that kind. The time when that application was formally made to the court was when the decision of Sullivan J was under consideration by the Court of Appeal. As Beatson J indicated in paragraph 3 of his judgment, there were two separate challenges to this court against Sullivan J's judgment, each of which failed. The contention advanced in relation to the documents in which we are currently concerned, was that, if those proceedings went ahead, these documents would be plainly material; and that, for my part, seems to me to be obviously correct, given the nature of the challenge to the planning authority's decision and the invocation of article 2 in support of the judicial review challenge.
6. Separately and apart from the request for disclosure of those documents in the course of those proceedings, the appellant sought disclosure by order of the Information Commissioner. He ruled that the Port Authority was a public authority for the purposes of the environmental information regulations, and directed that the Port Authority should disclose certain risk assessments to the appellant. An appeal was brought by the Port Authority to the Information Tribunal, but subsequently withdrawn and the documents which the Information Commissioner had ordered to be disclosed were thereafter disclosed.
7. In the present proceedings, Beatson J held that, in relation to environmental information, not only did the claimant have an alternative remedy, but that to allow the judicial review application to proceed in relation to such information would be duplicative and would risk circumventing the regulatory system. For my part, that seems to me to be plainly right. What of the non-environmental information sought by the appellant, if I can describe it in that way?
8. Beatson J refused leave to bring judicial review of the authority's refusal to disclose such documents for two reasons. First, he did not consider that the appellant had an arguable case to be entitled to it. The basis of the claimed entitlement was that articles 2 and 8 gave rise to a positive obligation to disclose such materials. Beatson J reviewed the relevant Strasbourg court decisions and rejected the argument. He considered that any article 2 and 8 rights were, in the relevant context, sufficiently protected by the statutory processes which had taken place for planning permission and Hazardous Substances' consent. The appellant, in a lengthy skeleton argument, suggested that he was wrong. For my part, I do not think that he was, but Dyson LJ, who considered this application on paper, accepted that it was arguable that articles 2 and 8 were engaged. The fact that he considered this point to be arguable means that, if this were the only obstacle in the appellant's path, I think that they should have the opportunity of seeking to persuade the full court that Beatson J was wrong on that point. But there was a second point: Beatson J noted that the request for information had been made prior to the previous judicial review application of Sullivan J, and that article 2 arguments featured strongly in that application. He concluded, in paragraph 38:
"The claimants have made a multifaceted challenge to all aspects of this development [...] I am not satisfied that the reformulation of the reasons for seeking the information now are sufficiently different or sufficiently compelling to justify these proceedings. Despite Mr Wolfe's valiant attempts to persuade the court that Beatson J was arguably wrong in taking that view I am not persuaded."
9. It is to be noted, as Buxton LJ pointed out in argument, that, if the present argument is sound, it was available in the earlier judicial review proceedings because it could and should have been submitted to Sullivan J that leave ought to be granted precisely in order to enable the documents then and now being sought to be produced, and which, if produced, would potentially have a relevant bearing on those proceedings.
10. But the matter does not stop there. Those proceedings were rejected on wider grounds, which Sullivan J set out in his judgment. The disclosure of documents material to that application was an integral part of the application, albeit that it necessarily failed because the whole application failed. One has to ask in this context, against the background of this multi-faceted challenge to all aspects of the development, as Beatson J described it, what is the true objective of the present proceedings? The appellant's solicitor has sought to counter the second ground on which Beatson J refused permission to appeal in a further witness statement. In it he makes reference to the documents which have now been disclosed by the Port Authority, pursuant to the Information Commissioner's direction. He says in the statement as follows:
"10. The Court should be aware that despite, so I understand, the terminals being in an advanced state of construction, production of the information sought now is of real and practical importance, so that residents can decide for themselves what steps and precautions to take in the light of what danger they may assess faces them, despite the decision by the authorities to allow the project permitting the terminals to proceed. I can do no better than to ask the Court to consider the witness statements that were originally prepared for the Information Tribunal, [...] but never used because MHPA withdrew its appeal to the Tribunal on that day."
"11. It may also be that the residents can persuade the authorities that there is a serious problem and albeit belatedly they should do the necessary checks that the developments do not pose risks to the public, or require appropriate changes, before the terminals begin operations."
Then he goes on to refer to the disclosed documents, as follows:
"14. The documents disclosed are two of the ten documents that were behind MHPA's submissions in its summary grounds of resistance in the judicial review proceedings that came before Sullivan J in 2005 and the Court of Appeal in January 2006 and which were relied upon to show that relevant assessments have been carried out [...] These were believed to be the ‘best' documents in this respect - in other words, if any relevant assessments had been carried out, these would be they."
"15. It will be seen that the first document, the so-called Milne Report, [...] is a generalised description of the risks of LNG operations and is not specific to the proposals at Milford Haven. It could not sensibly have been relied upon as a risk assessment of the terminals proposed, particularly as (contrary to the guidance) they were to be placed in expressed locations."
"16. The second report, so-called Qatargas II Report, [...] is surprisingly scant for such a hugely important and potentially dangerous project."
He then goes on to make more detailed criticisms of that report, and continues:
"17. These proceedings are not the place to detail what this report might be expected to have shown including as to how its conclusions were drawn, and indeed how little can be gleaned from what we have been provided. However I would ask the Court to appreciate why Mrs Hardy and other residents are, to say the least, alarmed that this and the Milne report should have been the best basis for approving the projects, inter alia when they are advised by the pilots who know the port that the risk in question is ‘a real everyday possibility' [...] and would therefore not fall into the definition of [...] practically impossible [and so on]."
11. When he says that these proceedings are not the place to detail what the report might have been expected to show, the obvious question presents itself: what proceedings are in mind? And the answer is not difficult to see. This is one more step in a continuing battle, in respect of planning applications which have been granted. As it seems to me, the plain and obvious purpose is to endeavour to elicit material which could have been, and indeed to a point was, asked for in the earlier proceedings, in order to present continuing argument that those previous consents ought not to have been granted. This is exactly the sort of endeavour which the court ought not to support. This appellant has had the opportunity to seek these documents at the time of the earlier proceedings, and it seems to me that the conclusion arrived at by Beatson J was entirely apposite: that this is indeed a reformulation of what was being sought in those proceedings. Those proceedings have already occupied the time of the Administrative Court for a lengthy leave hearing, followed by two considerations by the Court of Appeal and it would be wholly wrong that permission should now be granted to bring judicial review in the present form. For those reasons I would refuse this renewed application for permission to appeal.
Lord Justice Buxton:
12. I agree. My Lord has drawn attention to what was said by Dyson LJ in respect of the question of whether articles 2 and 8 are engaged on the facts of this case. In view of the approach taken by Dyson LJ to that point, like my Lord I would not feel available to refuse permission on that basis, even though, also like my Lord, I consider, on the really quite substantial argument on paper that we have heard; that Beatson J was correct on that aspect of his judgment.
13. The substantial difficulty is, however, that which my Lord has pointed out in his judgment. There is little or nothing I need to add, but by way of footnote or summary I would simply say this. After the hearing before the Court of Appeal, in which it was sought to challenge the conclusion of Sullivan J, the applicant's solicitor wrote to this court, enclosing a formal application for disclosure, addressed to the Milford Haven Port Authority as an interested party in those proceedings, and seeking the disclosure of material of the same order as is in issue in this case. He said, in his covering letter, inter alia:
"We do not believe that further evidence on this point is necessary: the evidence as to the materiality of the documents has already been aired before the court."
14. That demonstrates, as clear as could be, that the material sought in this application was viewed as relevant to the application before Sullivan J, and was an integral part of that application. It was an integral part because, amongst other things, in an attempt to avoid the difficulties about delay that Sullivan J had perceived, leading counsel then representing this applicant made it a positive part of his case that permission should nonetheless be granted, despite the delay, because of the implication of the claimant's rights under article 2, and extensive submissions appear to have been made on that basis. That means that the court was seized of the article 2 issues and of the documents in that context. If it had been thought then that there was a separate and free-standing reason why the documents should be produced -- that is to say, the grounds now relied on in this case -- that case should have been made before Sullivan J and the Court of Appeal. In the event that the application before Sullivan J failed. I quite accept that that failure did not involve any concluded judgment on the issue that is before us, but that is not the point. The point is that disclosure was sought in the context of those proceedings and those proceedings, for whatever reason, failed; and it is not now open to this applicant to reinstate that question in further and collateral proceedings, when it had been an issue in a previous case before the administrative court. And that is quite without prejudice to the points that my Lord has underlined as to what is going to happen next, if this present application were to succeed. Again, it is absolutely clear from the material that has been put before us that what is sought to happen is not only the production of these documents, but a rerun (if I may put it in that way) of the arguments that failed in the previous proceedings.
15. For these reasons, therefore, I will not be sufficiently discourteous to describe this application as abuse of the process of the court, but it is certainly not open to the applicant to renew this application in the light of the previous proceedings that have taken place. I therefore, like my Lord, would refuse permission.
Order: Application refused