Hardy & Ors v Pembrokeshire County Council & Ors

This application for permission to appeal against a decision of Sullivan J concerns two separate proposals for the construction of very large Liquefied Natural Gas (LNG) terminals at Milford Haven in Pembrokeshire. The application was adjourned by Chadwick LJ, dealing with the matter on paper, for an oral hearing on notice but limited to certain grounds. Since his decision the applicants have indicated that they wish to renew the application on the remaining grounds and the court has therefore heard argument on the grounds generally.

The applicants before Sullivan J were seeking permission to apply for judicial review of 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”) to two of the interested parties, Dragon LNG Limited and South Hook LNG Terminal Company Ltd. By his decision dated 26 July 2005 Sullivan J refused permission. He did so on the basis that the challenge had not been made promptly, that there had been undue delay, that even the granting of permission to seek judicial review would cause very substantial prejudice to those two interested parties 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.

Although only one judicial review claim form was filed, the proposals for the LNG terminals concerned two quite separate sites, located some 6 kilometres apart on the opposite sides of the town of Milford Haven. The sites are in different ownerships and the proposals were put forward by separate commercial companies. Both proposals involve land-based facilities for the storage and handling of LNG, with a jetty protruding out in the Haven itself. Inevitably the applications for the necessary planning permissions and hazardous substances consent were made separately for each of the two developments.

The more westerly of the proposed terminals, known as South Hook, is located partly within the area for which Pembrokeshire County Council is the responsible local authority under both the Planning Act and the Hazardous Substances Act and partly within the area for which the Pembrokeshire Coast National Park Authority is responsible under those Acts. The more easterly site, where the Dragon terminal would be located, lies wholly within the County Council’s jurisdiction.

As will be already apparent, developments such as LNG terminals require both planning permission and hazardous substances consent. The latter represents a separate system of control applicable where a proposal involves the presence of a hazardous substance on, over or under land unless the quantity is less than a prescribed figure: see section 4 of the Hazardous Substances Act. This additional system of control was brought in by Parliament because it was possible to introduce a new hazardous use on a site without there necessarily being a “development” within the meaning of the Planning Act requiring planning permission. In general, the authorities charged with granting or refusing hazardous substances consents are the same as the local planning authorities.

The claim form in the present case challenged a number of planning permissions and hazardous substances consents granted by the County Council (the first defendant below) or by the Park Authority (the second defendant below). The decisions in question in respect of each site are:

(A)

South Hook Site

(1)

A planning permission granted by the second defendant on 12^th November 2003.

(2)

A planning permission granted by the first defendant on 18^th December 2003.

(3)

A hazardous substances consent granted by the first defendant on 2^nd April 2004.

(4)

A hazardous substances consent granted by second defendant on 19^th August 2004.

(B)

Dragon Site

(1)

A planning permission granted on 19^th March 2003.

(2)

A planning permission granted for an extension on 10^th September 2004.

(3)

A planning permission granted for an amended scheme on 10^th September 2004.

(4)

A hazardous substances consent granted on 7^th December 2004.

The claim form was filed by the applicants, local residents in Milford Haven, on 4 March 2005. CPR 54.5(1) provides that in judicial review proceedings:

“The claim form must be filed:

(a)

promptly; and

(b)

in any event not later than 3 months after the grounds to make the claim first arose.”

CPR 54.5(2) makes it clear that the parties may not extend this time limit by agreement between themselves, a provision which underlines the importance attached to the need to observe CPR 54.5(1). Indeed, the House of Lords in Caswell v. Dairy Produce Quota Tribunal for England and Wales [1990] 2 AC 738 held that, where the application for permission to seek judicial review is not made in compliance with those provisions, the delay is to be regarded as “undue delay” within section 31(6) of the Supreme Court Act 1981. That subsection reads as follows:

“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.”

I refer to these provisions because it will already be evident from the dates set out earlier that all the decisions which it is sought to challenge in these proceedings were, with one exception, made more than three months before the claim form was filed. The one exception is the hazardous substances consent granted on 7 December 2004 for the Dragon site. Even then, as Sullivan J pointed out, the claim form was filed on the last working day before the three month period in respect of that decision expired: paragraph 46 of the judgment below. The latest of the decisions concerning the South Hook site was dated 19 August 2004, more than six months before the filing of the claim form.

Mr Purchas Q.C., who appears on behalf of the applicants, contends that the key consent in each case was the hazardous substances consent, since without that the terminal could not be operated. That may very well be so, but it does not mean that the granting of the earlier planning permissions is not relevant to a consideration of promptness or lack of it in respect of the hazardous substances consents. The earlier planning decisions must have alerted those in the Milford Haven area, including the applicants, to the terminal proposals and to how those proposals were progressing, and one could therefore have properly anticipated more rapid challenges to the hazardous substances consents, once granted. In any event, Sullivan J dealt fully with the facts relevant to the issue of promptness and undue delay in the present case at paragraphs 26 to 47 of his judgment, and his analysis and conclusion on this issue are ones with which I agree. In those circumstances I do not propose to cover that same ground in this judgment.

The only further point to be emphasised is that CPR 54.5(1) contains two requirements: first, that a claim form be filed promptly, and secondly that in any event it be filed not later than three months after the grounds first arose. The first of those requirements exists independently of the second. It is therefore, as has been stressed many times, quite wrong to assume that filing within three months amounts to filing promptly. It may or may not, depending on the circumstances. As was said by this court in R v. Independent Television Commission, ex parte TV Northern Ireland Limited [1996] J.R. 60, [1991] TLR 606, it is not correct to proceed on the basis that applicants have three months in which to seek judicial review:

“In these matters people must act with the utmost promptitude because so many third parties are affected by the decision and are entitled to act on it unless they have clear and prompt notice that the decision is challenged.” – per Lord Donaldson, MR, page 61

The court there refused applications for judicial review because of a lack of promptness, even though the applications had been made within the three month period. The reasons for such an approach are clear from a large number of authorities. A public law decision by a public body in almost all cases affects the rights of parties other than the decision-maker and the applicant seeking to challenge such a decision. It is important that those parties, and indeed the public generally, should be able to proceed on the basis that the decision is valid and can be relied on, and that they can plan their lives and make personal and business decisions accordingly. As it was put by Sir John Donaldson, MR, in R v. Monopolies and Mergers Commission, ex parte Argyll Group plc [1986] 1 WLR 763, at 774 H – 775 B:

“Good public administration requires decisiveness and finality, unless there are compelling reasons to the contrary.”

The applicants, however, challenge the requirement in CPR 54.5(1) for an application for judicial review to be made “promptly”, on the ground that it offends against the principle of “legal certainty” in European law. It is argued that procedural time limits must be certain and predictable, so that a claimant is able to fix precisely in advance when and if the claim will be procedurally barred. CPR 54.5(1), insofar as it contains a requirement of “promptness”, creates legal unpredictability. In the present case the applicants are seeking to rely on Article 2 of the European Convention on Human Rights (ECHR) in respect of their concerns about their safety if the proposed terminals were built. Consequently the decision to grant the permissions and consents for the terminals engaged the protection of Article 6 of the ECHR and the principle of legal certainty comes into play when considering the applicants’ right of access to a court.

In support of these propositions reference is made by Mr Purchas to a passage in the speech of Lord Steyn in Burkett v. Secretary of State for the Environment [2002] UKHL 23, [2002] 1 WLR 1593 at paragraph 53, where it was said that

“… there is at the very least doubt whether the obligation to apply “promptly” is sufficiently certain to comply with European Community law and the Convention for the Protection of Human Rights and Fundamental Freedoms. It is a matter for consideration whether the requirement of promptitude, read with the three months limit, is not productive of unnecessary uncertainty and practical difficulty.”

Lord Hope shared those doubts, whereas Lord Slynn expressly did not comment for the reason that the question did not arise in the case. The other two members of the House of Lords were silent on this topic. Nonetheless, while conceding that Lord Steyn and Lord Hope’s comments were obiter, Mr Purchas places reliance on them.

There seem to me to be a number of problems with this line of argument. First and foremost, this very point has been advanced before the European Court of Human Rights in the case of Lam v. United Kingdom, Application 41671/98, and rejected. That was a case concerning an application for leave to seek judicial review of a planning decision, where leave had been refused on the ground of lack of promptness. The applicant contended before the European Court of Human Rights that the terms of Order 53, rule 4(1) of the Rules of the Supreme Court (the predecessor to CPR 54.5(1)) were contrary to the principles of legal certainty, and reliance was also, as here, placed on Article 6. The Court held that this complaint was manifestly ill-founded, stating:

“In so far as the applicants impugn the strict application of the promptness requirement in that it restricted their right of access to a court, the Court observes that the requirement was a proportionate measure taken in pursuit of a legitimate aim. The applicants were not denied access to a court ab initio. They failed to satisfy a strict procedural requirement which served a public interest purpose, namely the need to avoid prejudice being caused to third parties who may have altered their situation on the strength of administrative decisions.”

It is to be observed that Lam does not appear to have been cited to the court in Burkett.

Secondly, in what is perhaps the leading case on the concept of certainty as part of the principle of legality, Sunday Times v. United Kingdom[1979-80] 2 E.H.R.R. 245, the European Court of Human Rights held that, while a citizen should be able to foresee to a reasonable degree the consequences which an action of his may entail,

“those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and where interpretation and application are questions of practice.” (paragraph 49).

Those comments are particularly applicable to a procedural rule in applications seeking judicial review, where the degree of promptness required will vary from case to case, depending on the subject-matter and other circumstances. For example, it is well-established that a challenge to a decision of an education authority affecting the school to be attended by a child must be brought with considerable despatch, so that the matter can be resolved before the start of a new school term (see R v. Rochdale Metropolitan Borough Council ex P B, C, and K. [2000] Ed CR 117).

Thirdly, the requirement in CPR 54.5(1) that applications for judicial review be brought “promptly” is no more uncertain than the wording of section 31(6) of the Supreme Court Act 1981, set out earlier in this judgment, with its reference to “undue delay”. As that provision makes clear, leave to make an application for judicial review (as well as relief at a substantive hearing) may be refused by the court if there is undue delay. It is perhaps worthy of note that this wording did not cause Lord Steyn any doubts in Burkett over its compatibility with the principle of certainty. On the contrary, at paragraph 18 of his speech in that case, Lord Steyn said this of section 31(6):

“… It is, however, a useful reserve power in some cases, such as when an application made well within the three month period would cause immense practical difficulties. An illustration is R v. Rochdale Metropolitan Borough Council Ex p B, C, and K [2000] Ed CR 117. Having referred to section 31(6), Mr David Pannick QC (sitting as a deputy judge of the High Court) stated, at p 120:

“In my judgment, it is absolutely essential that, if parents are to bring judicial review proceedings in relation to the allocation of places at secondary school for their children, the matter is heard and determined by a court, absent very exceptional circumstances, before the school term starts. This is for obvious reasons relating to the interests of the child concerned, the interests of the school, the interests of the other children at the affected school and, of course, the teachers at that school.””

Lord Steyn then added the comment:

“The good sense of this approach is manifest.”

Finally on this issue, it is to be observed that the European Convention on Human Rights itself employs the concept of “promptness” in its articles. Article 5(3) requires anyone arrested or detained to be brought “promptly” before a judge or other officer with judicial power; Article 6(3) confers the right on anyone charged with a criminal offence to be informed “promptly” of the nature and cause of the accusation against him.

Consequently, for all these reasons and despite the doubts expressed obiter in Burkett, it seems to me that there is no realistic prospect of the applicants successfully establishing that CPR 54.5(1), insofar as it requires a claim form to be filed “promptly”, is contrary to European law and unlawful.

Some issue is taken by the applicants as to Sullivan J’s conclusion that the grant of permission to seek judicial review would cause prejudice to third parties, namely Dragon LNG Limited and South Hook LNG Terminal Company Ltd. It is argued that, by the time when the contract for the Dragon terminal was entered into, there had already been two warning letters about possible proceedings sent to the planning authorities. As for the South Hook proposal, that was proceeding in any event.

In my judgment, Sullivan J dealt with this aspect of the case in a way which cannot be criticised: see paragraphs 59 to 72 of his judgment. He examined the evidence about the financial commitment involved in these two very large projects and found that permission would cause very substantial prejudice. The two warning letters now relied on were couched in relatively tentative language, the first being one in which the applicants’ solicitors expressly said that they had yet to see “proper papers of the matter”, and the second giving only “a preliminary view” that legal challenge were likely. No commercial concern involved in preparing a major project of this kind could be expected to call a halt to its activities merely because there is such a tentative threat of judicial review. As for the South Hook site, the judge below found that a site preparation contract with a value of £9 million had already been let on 27 September 2004; a Phase 1 engineering, procurement, construction and commissioning contract had been concluded on 1 November 2004; and a Phase 2 contract concluded on 31 December 2004, all of those being after the grant of hazardous substances consent and before the claim form in this case had been filed. Indeed, by the time of the Phase 2 contract, the 3 months period for a judicial review challenge had expired. The combined contract value of Phases 1 and 2 exceeded £560 million. One needs little imagination to see how the uncertainty and delay involved in a substantive judicial review challenge would have given rise to prejudice in such circumstances.

The main arguments advanced on behalf of the applicants concern the issue of public safety, Article 2 of the ECHR and the consideration given to these matters by Sullivan J and the local authority decision-makers. In the applicants’ skeleton argument it seemed to be being contended that, whenever Article 2 is raised by an applicant for judicial review, it is not open to the court to refuse permission to proceed, whatever the degree of delay or prejudice, without considering whether Article 2 rights were or would be breached by the decision under challenge. In other words, the normal approach to the exercise of the court’s discretion under CPR 54.5(1) should be set aside because of the unqualified right to life provided by Article 2 and the “fundamental public interest in the protection of human life and public safety” (Ground of Appeal 1(e)). Delay in applying could not suffice for a rejection of the application for permission to proceed.

It is right that Article 2 is one of the unqualified rights in the ECHR. Article 2(1) provides:

“Everyone’s right to life shall be protected by law. No-one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”

That imposes an obligation on states to put in place measures to safeguard people’s lives against hazards. But the Strasbourg jurisprudence does not indicate that limitation periods cannot apply where complaints are brought under Article 2. Thus in Vo v. France [2004] FCR 577 the Grand Chamber held that, assuming that Article 2 applied, it did not prevent a four year limitation period in French domestic law from being reasonable and applicable. It noted that there was a public interest in legal certainty and finality, and that a balance had to be struck.

In the course of his oral submissions in the present case, Mr Purchas has accepted that claims raising Article 2 issues are subject to the procedural rules found in domestic law. That clearly includes CPR 54.5(1). But it is then submitted that the judge below gave inadequate consideration to the merits of the applicants’ claim that the decisions under challenge put public safety at risk. That risk should have overridden, it is said, the factors of delay and prejudice. While it is recognised that the judge had a discretion under CPR 54.5(1), it is argued that he gave inadequate weight to the substantive merits of the claim.

The context of these submissions is that a judge hearing an application for permission to seek judicial review has the undoubted power to extend time even where the application falls outside the three month time limit. This power used to be found in a procedural rule specific to judicial review, namely RSC Order 53, rule 4(1), which enabled an extension to be granted where

“the court considers that there is good reason for extending the period …”

That specific provision has disappeared in Part 54 of the Civil Procedure Rules, but the general powers of the court to extend time, contained in CPR 3.1(2)(a) may be exercised in such case, and in Burkett (ante) Lord Steyn remarked that there was no material difference between the provisions of RSC Order 53, rule 4(1) and CPR 54.5(1). I respectfully agree. It has also been held by Judge J (as he was then) in R v. Warwickshire County Council ex parte Collymore [1995] ELR 217 that the burden is on the applicant for judicial review, seeking such an extension, to show that there is good reason to extend time. That would seem to follow from the normal principles applicable when a party seeks an extension of time but has all the more force in judicial review cases, as was recognised in the Argyll Group case (see paragraph 10, ante).

There are a number of authorities which indicate that “the importance” of the subject matter of the judicial review claim may justify a grant of permission to proceed with the claim, even where there has been delay. This was recognised by Sullivan J in the present case at paragraph 77 of his judgment. One of the best known of those authorities is R v. Secretary of State for Foreign Affairs, ex parte World Development Movement Limited [1995] 1 WLR 386, though it has to be noted that that case dealt with the position at the substantive judicial review hearing, since permission to seek judicial review had already been granted. This court has in the past accepted the principle but emphasised that cases where the importance of the matter raised constitutes a good reason to extend time are likely to be exceptional: R v. Collins, ex parte M.S. [1998] C.O.D. 52.

It is obvious that public safety is potentially an issue of importance and that, if there is evidence that it has been overlooked or not properly considered by the decision-maker, then that may justify permission to seek judicial review. Public safety must be a material consideration in the decision-making process carried out by the hazardous substances authority, irrespective of Article 2 considerations. Having said that, it is necessary to recognise that the judge considering such an application for permission is not expected to conduct what would amount to a substantive hearing of the merits. It is true that, even where there has been no breach of the requirements of CPR 54.5(1), the applicant has to show that the merits disclose an arguable case for relief. Where there has been a breach of those requirements, as in the present case, the applicant clearly has to go further and show that the merits are such as to justify an extension of time. But, as Lord Diplock pointed out in R v. Inland Revenue Commissioners, ex parte National Federation of Self-Employed Limited [1982] A.C. 617 at 643 H

“The whole purpose of requiring that leave should first be obtained to make the application for judicial review would be defeated if the court were to go into the matter in any depth at that stage.”

That is the context in which one has to approach Sullivan J’s statement at paragraph 81 of his judgment in the present case that he had not heard full argument on the substantive issues (my emphasis). That was not surprising. But it is clear that he was alive to Article 2 and public-safety issues, since he deals with these under the heading “Does the public interest require that the application should be permitted to proceed?” In paragraph 81 again, he specifically refers to the evidence from the fourth interested party, the Milford Haven Port Authority, giving details of the way in which it had assessed the marine traffic implications of the proposals. 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.

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.

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. The essence of the applicants case, as already noted, is that the decision-makers did not adequately consider what are called “marine risks”, namely the risks to those in the Milford Haven area from an escape of LNG from a ship. In particular, concern is expressed about the risk from the formation, in the event of such an escape, of a flammable gas cloud. It is stressed that a population of some 20,000 lies within a radius of just over 4 miles of the South Hook and Dragon sites. Our attention has been drawn also to representations made by some eight retired Milford Haven pilots, in which they refer to the difficulties involved in navigating with large ships in the Haven and to the risks of a collision. Those risks are said to include the risk of a large ship colliding with an LNG carrier moored at a jetty. The retired pilots very properly state that they cannot comment on whether a gas escape from a moored LNG carrier would pose a risk to local populations.

The risk of collision, however, was undoubtedly dealt with by the Port Authority, as Mr Purchas has conceded during argument. The Port Authority advised both the County Council and the Park Authority that risk assessments had confirmed that the Haven “has the capability of handling these vessels safely”: see letters of 27 September 2004 and 15 May 2003. In the latter, the Port Authority stated that it had “no concerns regarding safety or navigation in this respect”. It went on in the same letter to say that, as a result of the assessment carried out,

“the conclusion is that the identified and agreed means of navigation and operation more than adequately contain the risk associated with handling these vessels.”

It is submitted, however, by Mr Purchas that assessing the risk of a collision was not enough. A proper risk assessment has to have regard both to the risk of collision and to the consequences, were such a collision to occur. This, it is argued, is where the assessments carried out were deficient. There was a lacuna because of the absence of any assessment of those consequences for the local population of a vapour cloud, were there to be an escape of LNG because of a collision. That is contrasted with the assessment of land-based risks carried out by the Health and Safety Executive.

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.

That body made it clear in its response of 5 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.

I can see no basis on which it could realistically be suggested that the County Council and the Park Authority failed to take into account public safety when dealing with these applications. They had advice before them from the Health and Safety Executive and from the Port Authority to the effect that there was no risk such as would warrant a refusal of the applications. There was nothing before them to demonstrate that those two statutory bodies had failed in their responsibilities to carry out a proper investigation and appraisal of safety considerations. In those circumstances there is no realistic prospect of a successful challenge to the various decisions, including the grants of hazardous substances consent. It follows that, even were this court exercising its discretion at first instance under CPR 54, I would conclude that the substantive merits fail to justify a permission to proceed, given the undue delay and prejudice to third party interests. This conclusion reinforces my view that the decision reached by Sullivan J was one which fell within his discretion.

I can see no real prospect of a successful appeal in this case. For my part, I would refuse permission to appeal.

I agree.

I also agree.