Hardy & Ors v Pembrokeshire County Council & Ors

On 17 March 2006 this court as presently constituted handed down reserved judgments, by which it refused permission to appeal from a decision of Sullivan J dated 26 July 2005. The decision of this court was unanimous. There is now before us an application on behalf of the unsuccessful applicants for permission to apply under CPR Rule 52.17 to reopen the determination of 17 March 2006. By order dated 8 May 2006, Chadwick LJ adjourned this application for an oral hearing on notice to all the respondents, limiting the hearing to the question of whether the appeal should be reopened in the light of information provided by the Treasury Solicitor, as solicitor to the Health and Safety Executive (“HSE”), in a letter to the Civil Appeals Office dated 27 April 2006. It was clearly implicit in that order that permission would not be granted in respect of other issues canvassed in the application to re-open – see CPR 52.17(6). On 13 June 2006 Chadwick LJ declined to widen the scope of this hearing.

CPR 52.17(1) provides as follows:

“The Court of Appeal or the High Court will not reopen a final determination of any appeal unless –

(a)

it is necessary to do so in order to avoid real injustice;

(b)

the circumstances are exceptional and make it appropriate to reopen the appeal; and

(c)

there is no alternative effective remedy.”

There is no doubt that those requirements set out in sub-paragraphs (a) to (c) are cumulative, that is to say, they all have to be met. The procedure under this provision is intended to be used only in rare cases, as was made clear in Taylor v. Lawrence [2002] EWCA Civ 90, [2003] QB 528, the decision of this court which was subsequently reflected in CPR 52.17. It was there decided that this court possesses a residual jurisdiction as a court of justice to re-open a determination in order “to avoid real injustice in exceptional circumstances”: paragraph 54. That reference to “exceptional circumstances” is reflected in paragraph (b) of CPR 52.17(1), and it is a requirement which has been emphasised subsequently in a number of decisions: see Matlaszek v. Bloom Camillion [2003] EWCA Civ 154.

The type of cases which has so far been identified as potentially capable of giving rise to a need to exercise this residual jurisdiction tends to have been that in which the process of justice leading to the determination under challenge has itself been vitiated by bias or fraud, though the jurisdiction cannot be specifically confined to that. Thus in Couwenbergh v. Valkora [2004] EWCA Civ 676 an application for permission was granted where there was a real prospect of successfully showing that an earlier decision had been obtained by fraud and by perverting the course of justice. I say that the jurisdiction cannot be entirely confined to cases where the process of justice has been corrupted: that reflects the fact that this is a residual jurisdiction to correct a real injustice in exceptional circumstances and the categories of such circumstances cannot be predicted in advance for all time. That was noted in this court’s decision in Re Uddin (A child) [2005] EWCA Civ 52; [2005] 1 WLR 2398.

However, in that same case the court in its judgment gave helpful guidance as to the approach to be adopted towards the exercise of this jurisdiction. At paragraph 18 of its judgment it said this:

“But the Taylor v Lawrence jurisdiction can in our judgment only be properly invoked where it is demonstrated that the integrity of the earlier litigation process, whether at trial or at the first appeal, has been critically undermined. We think this language appropriate because the jurisdiction is by no means solely concerned with the case where the earlier process has or may have produced a wrong result (which must be the whole scope of a fresh evidence case), but rather, at least primarily, with special circumstances where the process itself has been corrupted. The instances variously discussed in Taylor v Lawrence or in other learning there cited are instructive. Fraud (where relied on to reopen a concluded appeal rather than found a fresh cause of action – Wood v Gahlings); bias; the eccentric case where the judge had read the wrong papers; the vice in all these cases is not, or not necessarily, that the decision was factually incorrect but that it was arrived at by a corrupted process. Such instances are so far from the norm that they will inevitably be exceptional. And it is the corruption of justice that as a matter of policy is most likely to validate an exceptional recourse; a recourse which relegates the high importance of finality in litigation to second place.” (original emphasis)

The court subsequently repeated, at paragraph 22, its formulation of the test as being one of demonstrating

“that the integrity of the earlier litigation process, whether at trial or at the first appeal, has been critically undermined.”

As has been repeatedly emphasised in the authorities, the hurdle to be surmounted by an applicant seeking to invoke this jurisdiction has to be a very high one, since it is a jurisdiction which if exercised undermines the important principle that there has to be finality in litigation. Moreover, as was made clear in Taylor v. Lawrence at paragraph 55, the effect on others of re-opening the appeal is an important consideration on any such application.

With those principles in mind, I turn to the facts of the present case.

The decision of Sullivan J dated 26 July 2005 was one in which he refused permission to the present applicants to apply for judicial review of the grant of planning permissions and hazardous substances consents for two very large Liquefied Natural Gas (LNG) terminals at Milford Haven in Pembrokeshire. He did so on the basis that the challenge had not been brought promptly, that there had been undue delay, that even the granting of permission to seek judicial review would cause very substantial prejudice to the two developers and would be very detrimental to good administration, and that there was no public interest which outweighed those considerations so as to justify the grant of permission.

In dealing with the application for permission to appeal against that decision, this court agreed with Sullivan J that the challenge had not been made promptly and that there had been undue delay. It follows that the time limits set out in CPR 54.5(1), dealing with judicial review proceedings, had not been met. Likewise this court upheld the judge’s finding that the grant of permission to seek judicial review would cause prejudice to third parties, namely the developers of the two sites.

In this situation it was incumbent on the applicants to show that there was a good reason to extend the time for such a challenge to be brought. The reason advanced before Sullivan J was that there had been an inadequate consideration of issues of public safety by the local authority decision-makers, the respondents to the appeal. In my own judgment on the appeal, with which the other members of this court agreed, I stressed at paragraph 26 that a judge hearing an application for permission to apply for judicial review cannot be expected to conduct what would amount to a substantive hearing of the merits and that Sullivan J had clearly applied his mind to the public safety issues to the extent appropriate at such a stage in the proceedings. Amongst other things he had referred in his judgment to the evidence from the Milford Haven Port Authority, the statutory body responsible for controlling the use of the Haven and for ensuring the safety of operations and navigation within the Haven.

It is necessary to set out part of my judgment which then followed, because that sets the context for the present application. After referring at paragraph 27 to the evidence from the Port Authority giving details of how it had assessed the marine traffic implications of the proposals, I said this:

“27.

… That is of particular relevance, because the thrust of the applicants’ case was and is that there has been an inadequate assessment of the marine risks associated with the terminal proposals. The Milford Haven Port Authority is a statutory body required to ensure the safety of waters within its jurisdiction. The evidence before Sullivan J made it clear that the Port Authority was satisfied as to the safety of the terminal proposals, so far as its own sphere of responsibility was concerned, while the Health and Safety Executive had advised that it was content so far as the land-based activities were concerned. Both these bodies had so advised the decision-makers, the County Council and the Park Authority, who were entitled to rely on the specialist advice received from those bodies.

28.

In those circumstances, it seems to me that it was open to Sullivan J to conclude that the merits of the applicants’ claim did not outweigh the undue delay and the prejudice which permission to proceed would produce. This court has held that striking such a balance is a matter of discretion for the judge dealing with the application, and that this court will not intervene unless there has been an error of principle: R v. Vale of Glamorgan Borough Council, ex parte James [1997] Env. L.R. 195. I am not persuaded that any such error in Sullivan J’s approach has been shown, nor is his decision obviously wrong. He was entitled to reach the conclusion which he did.

29.

That being so, it is strictly speaking unnecessary to scrutinise in greater depth the decisions of the County Council and Park Authority, who granted the planning permissions and hazardous substances consents. But we have had detailed submissions addressed to us about those decisions and the alleged deficiencies in them, and I therefore propose to address briefly the issues raised.”

I then did so. It is in my view of the greatest importance to note that the error of fact now relied on by the applicants is to be found within the brief consideration of those issues which then follows. It is I believe clear from the structure and wording of the judgment that those following paragraphs were not a necessary part of the reasoning which led to this court’s conclusion that Sullivan J had been entitled to refuse to extend time. Nonetheless, given the basis of the present application, it is necessary to identify the error of fact now relied on.

It is as follows. The applicants’ contention was that the risks to those in the Milford Haven area from an escape of LNG from a ship had not been adequately assessed. In particular, it was argued that there had been no assessment of the consequences for the local population of a vapour cloud, were there to be an escape of LNG from a ship because of a collision. That was said to be in contrast to the assessment of land-based risks carried out by the HSE.

The relevant paragraphs in my judgment are then paragraphs 32 and 33, which read as follows:

“32.

I do not accept that the evidence before us, including the evidence submitted on behalf of the applicants since the oral hearing, demonstrates any such arguable lacuna. One has to bear in mind in this connection the very extensive assessments carried out by the Health and Safety Executive, because these provide the context for the Port Authority’s assessment. The Health and Safety Executive did assessments which considered both the consequences and the likelihood of an escape of LNG for all land-based and jetty-based activities. Those included the risks of catastrophic failure of an LNG storage tank at the terminal; the failure of a loading arm at the jetty while LNG was being transferred from ship to shore; and “major release from a delivery ship while tied up at a jetty”: see HSE responses to Park Authority, 5 March 2004, and the HSE Summary Grounds of Resistance, paragraphs 10 and 11. Having carried out these assessments the Health and Safety Executive did not object to the proposal for either terminal on safety grounds. The applicants do not criticise the work done by the Health and Safety Executive.

33.

That body made it clear in its response of March 2004 that it was not responsible for advising on accidents “whilst the ship is not attached to the jetty”. But the Port Authority, which is responsible for advising on such accidents, did participate in an assessment process which led to a risk assessment submitted by the South Hook LNG Terminal Company Limited in December 2002 “to identify hazards, consequences and possible mitigation measures” relating to the use of the port as proposed: see the Port Authority’s Summary Grounds of Resistance, paragraph 28(b) (emphasis added). It refers in those grounds to a number of other reports and exercises carried out, so that it could fulfil its statutory responsibilities for safety. In any event, once the Health and Safety Executive had concluded that there were no unacceptable risks to the local population arising from either a catastrophic storage tank failure on land or a major release of LNG from a tanker tied up at a jetty, the crucial element in any assessment of risk from a vessel not moored to the jetty must have been the risk of a collision. The risks to the population from a vapour cloud travelling over land or sea had already been considered by the Health and Safety Executive, since the jetties end far out in the Haven. What the Port Authority needed to concentrate on above all else was the risk of a collision, and that it seems to have done.”

Since the judgments in this appeal were delivered, it has become clear that the reference to the HSE having assessed the risk of a major release from a delivery ship tied up at a jetty was in error, even though taken from that body’s Summary Grounds of Resistance, paragraph 11(vi). By the letter dated 27 April 2006 referred to at the beginning of this judgment, the Treasury Solicitor acting on behalf of the HSE stated that that was an error and that risks from the presence of LNG on a ship, whether sailing or berthed, had not been taken into account in the HSE’s assessments. There was no suggestion that any of the other five events referred to in paragraph 11, namely (i) to (v) had not been assessed. It is this factual error which appears in paragraphs 32 and 33 of my judgment, concerning the extent of the HSE’s safety assessments, which forms the basis of this present application, which is in essence an application to reopen the appeal.

It is submitted by the applicants that the error as to the extent of the HSE’s assessments has given rise to a real injustice. Mr Wolfe on their behalf seeks to deal with the fact that the error occurred in part of the judgment said not to be strictly necessary by arguing that it is wrong to construe a judgment like a statute. It should be read as a whole. He concedes, however, that if he fails on that point, his argument is doomed.

On the basis, however, that that hurdle is overcome, Mr Wolfe turns to consider the significance of the factual mistake in terms of public safety. It is contended that the HSE has been “knocked out of the picture” so far as the assessment of any type of marine risk is concerned. That, of course, still leaves the advice tendered to the planning authorities by the Port Authority. So far as that body’s role is concerned, it is argued on behalf of the applicants that it only advised the planning authorities on the safety of navigation and did not advise as to the consequences, were there to be a major release of LNG because of a collision. Mr Wolfe has taken us to a large number of documents, to most of which it is unnecessary to refer. They include some which were not put before us at our earlier hearing, even though they were in existence at the time. On normal principles, we decline to admit those documents, whose admission would be quite inappropriate on such an application which is concerned with the integrity of the judgment already given. The gist of the submissions is that the Port Authority did not express a view on the overall safety of the proposals in terms of marine risks.

It seems to me that it may well be that the Port Authority was concentrating on the safety of navigation in order to advise the planning authorities on marine risk. But, it is clear that, in the light of the work it had done, it felt able to advise them in a letter dated 15 May 2003 that it had no concerns regarding safety or navigation in respect of the proposed developments. Its advice was thus in general terms. Mr Wolfe’s criticism is really that the Port Authority should not have expressed its satisfaction as to marine safety because it had not examined the consequences of a release of LNG from a ship, or at least had not done so beyond a conceptual study. It is argued that it is not enough to conclude that there is no real risk of a maritime collision leading to a major LNG release. A proper assessment of marine risks requires an examination of the consequences of such a release, were one to occur. Moreover, complaint is made about the unwillingness of the Port Authority to disclose all the reports on which they have relied.

The necessity of reopening the hearing derives, it is said, from these considerations of public safety and from Article 2 of the European Convention on Human Rights. In addition, if necessary, it is submitted that prejudice to third parties should not stand in the way of reopening the appeal if it appears that public safety is at stake.

I shall take these arguments about public safety first. I cannot accept that they demonstrate that the very demanding test for a reopening of the application for permission to appeal has been met. Even assuming for the moment that the paragraphs in which this mistake of fact occurs had been a necessary part of the reasons for this court’s decision, which they were not, the factual error would not in my judgment amount to a critical undermining of the integrity of the earlier appeal process. The significance of the error in terms of public safety has to be seen in context.

That context is that both the HSE and the Port Authority had undoubtedly carried out a number of exercises and studies before advising the planning authorities that there was no objection on safety grounds. The HSE for its part had assessed the consequences of an escape of LNG from a land-based storage tank; from the failure of a loading arm at the jetty; and from the guillotine rupture of a thirty inch pipeline between the jetty and the storage tanks (SGR, paragraph 11). Those assessments have not been criticised. It is to be observed that the HSE assessments of the failure of a storage tank on land included that of a catastrophic failure, which would take place at a location not obviously more distant from the areas of population than the proposed jetties. Yet the HSE was satisfied that public safety would not be jeopardised, presumably because of the very low likelihood of such an incident.

The Port Authority for its part had carried out a range of studies referred to in its summary Grounds of Resistance at paragraph 28. Those were, as one might expect, largely directed towards an assessment of marine risks. They included a report from a Senior Risk Analyst at Lloyd’s Register of Shipping, commissioned to assess the risk of explosion and gas release from LNG carriers (see paragraph 28(j)). There was also evidence before the judge and before this court that there had never been an incident of major release of LNG from a ship to the external atmosphere: see Claimants Delay Evidence, page 256.

The Port Authority has statutory responsibilities for safety within the Haven and it advised the decision-makers, the County Council and the Park Authority, that there was no such risk to public safety as to warrant refusal of the applications. It was principally for the Port Authority to decide on what research was necessary for it to be so satisfied. It is not for this court or any court to try to second guess the Authority’s decision on what it needs by way of research in order to advise the decision-makers, unless it is obvious that it has neglected its statutory duties. The evidence falls far short of that. In short, the factual point now seen to be mistaken was of limited significance even on this aspect of the case. Moreover, as Mr Straker on behalf of the Port Authority submits, that Authority has powers, if at any time it should appear to it that the risks are likely to be greater than presently seem to be the case, to prevent the jetties being used for LNG unloading, and of course the planning authorities also have powers to revoke the consents with which these proceedings are concerned.

But in any event, I come back to the fundamental point, which I indicated earlier, namely that the mistake of fact now relied on by the applicants did not occur in an essential part of this court’s reasoning when it dismissed this application for permission to appeal. The crucial part of that reasoning, as set out earlier in this judgment, was that it was open to Sullivan J to conclude that the merits of the applicants’ claim did not outweigh the undue delay and the prejudice flowing from permission to proceed, that he made no error of principle, and that his decision was not obviously wrong. It is conceded by Mr Wolfe that Sullivan J did not make the same error of fact which forms the basis for the present applications. This court’s own reasoning that Sullivan J’s decision was open to him did not turn on any assumption about the precise studies carried out by the HSE. The mistake of fact occurred in a subsequent paragraph which formed no part of the crucial reasoning of this court in arriving at its decision, but was something of an addendum. To recognise that fact is not to construe my judgment as if it were a statute but merely to read it in a normal rational manner.

It seems to me that this is a case which falls far short of meeting the demanding test set out in Taylor v. Lawrence and subsequent authorities. There has been no corruption of the judicial process and no critical undermining of the integrity of the appeal as determined by this court. In those circumstances I for my part would dismiss this application and decline to reopen the appeal.

I agree.

I agree that the application to re-open the application for permission to appeal, made by notice filed on 10 April 2006, must be dismissed.