Gregan & Ors, R (on the application of) v Hartlepool Borough Council & Anor

This is an application for judicial review of a "decision" contained in a letter dated 30th September 2003 from Mr Green, the defendant Council's Head of Planning and Economic Development, to Mr Stephenson, the Chairman and Chief Executive of the interested party, Able UK Ltd ("Able"). The letter referred to recent discussions and said that, as requested, the writer was:

The Town and Country Planning Act 1990 ("the Act") enables persons wishing to use their land for any purpose, or to carry out operational development on their land, to make an application to the Local Planning Authority for a certificate that the proposed use, or operations, would be lawful: see section 192. Able did not make an application for a certificate of lawfulness of proposed use or development (a "CLOPUD"). It would appear that Able requested the Council's officers to express an informal view. I say "it would appear" because the precise circumstances in which the letter came to be written have not been explained in evidence before the Court.

Although the letter purports to indicate "the Council's view", the matter was not referred to members and the letter represents an officer's view, acting, it is said, under delegated powers. There is no evidence as to what "relevant documentation" was before Mr Green. It is common ground that the 2002 planning permission referred to in the letter merely permitted the "continuance of use of site without complying with conditions 9 and 10 of [an earlier planning permission which was granted on 1st October 1997] relating to activity close to the sea wall and noise from activities at the TERRC [Teeside Environmental Reclamation and Recycling Centre] site, Graythorp."

It is therefore necessary to go back to the planning permission granted on 1st October 1997 ("the 1997 planning permission") in order to ascertain what activities are permitted at Able's TERRC site. Various documents, including an Environmental Statement which had accompanied the application for planning permission were expressly incorporated into the 1997 planning permission. It is not clear whether Mr Green had regard to all of those documents, in particular the Environmental Statement, or whether he had regard to other documents, which would not have been admissible for the purposes of construing the 1997 planning permission.

Mr Lowe QC, who appeared on behalf of the Council, told me that Mr Green had obtained legal advice from the Borough Solicitor, and that the Borough Solicitor had obtained advice from junior counsel. I do not know what documents had been placed before junior counsel or whether he or she gave a formal written advice. It should be noted that the letter does not explain why "the Council" considered that (in effect) the 1997 planning permission permitted the dismantling and refurbishment of ships. Later that day, 30th September, after discussions with, amongst others, Council officers, the Environment Agency ("the Agency") modified the conditions attached to Able's Waste Management Licence. In judicial review proceedings by FOE against the Agency last week, I decided that the modification notice was legally flawed and had to be quashed.

Whether or not Mr Green's letter dated 30th September is a judicially reviewable decision, there is clearly an issue between the Claimants on the one hand and the Council and Able on the other as to the proper interpretation of the 1997 planning permission which needs to be resolved by the Court. The background to this matter is set out in my judgment dealing with FOE's challenge to the modification of the licence conditions.

The site which has the benefit of the 1997 planning permission, and which is now known as the TERRC, is a large site of 48.39 hectares on the north bank of the Seaton Channel, a dredged channel which runs into the River Tees, at Teesmouth, a short distance to the east. The site is located within a heavily industrialised area, between a power station to the east and a chemical plant to the west-southwest. To the north there is a railway line and an access to the A178 Tees Road. The southern boundary of the site fronts the Seaton Channel.

The principal feature within the site is a 7.31 hectare flooded basin, formerly a dry dock. The basin is open to the Seaton Channel, the huge gates which formerly enclosed it (the entrance to the Seaton Channel is 120 metres wide) were dislodged and damaged in a storm in about 1989, before Able acquired the site. I have taken the dimensions set out above from the Environmental Statement which accompanied the application for planning permission which was made in August 1996. They differ slightly from the dimensions given in my earlier judgment, dealing with the modification to the site licence conditions. I had taken those measurements from Mr Stephenson's witness statement in those proceedings. The discrepancies are of no significance for present purposes.

The TERRC is located near to the Teesmouth and Cleveland Coast Special Protection Area ("the SPA") which has been classified by the Secretary of State under Article 4 of Council Directive 79/409 on the Conservation of Wild Birds ("the Birds Directive"). SPAs are given special protection under Council Directive 92/43/EEC on the Conservation of Natural Habitats and Wild Flora and Fauna ("the Habitats Directive"), as implemented in Great Britain by the Conservation (Natural Habitats etc.) Regulations 1994 ("the 1994 Regulations"). Part of the SPA, known as the Seal Sands, is on the south side of the Seaton Channel, directly opposite the entrance to the flooded basin.

Able has entered into a contract to dismantle and recycle a number of ships forming part of the United States National Defence Reserve Fleet (NDRF). There are in excess of 150 obsolete ships in the NDRF which is under the control of MARAD. MARAD has been attempting to dispose of the ships in the NDRF for some years. It has obtained consent from the United States Environmental Protection Agency for 13 ships in the NDRF to be exported to the United Kingdom so that they may be dismantled and recycled by Able at the TERRC. Following the letter dated 30th September and the modification of the conditions on the Waste Management Licence later that day, the first four ships set off on their voyages, under tow, from the United States across the Atlantic to the United Kingdom. The remaining nine ships are prevented from leaving the United States by (the equivalent of) an interim injunction granted by a court in the United States.

The Claimants are three local residents who live in Hartlepool. According to Mr Stephenson's witness statement, the TERRC is within three miles of the centre of Hartlepool. The Claimants are concerned about the environmental implications of bringing the ships from the United States to be dismantled at the TERRC.

On 5th September 2003 Public Interest Lawyers, acting at that stage on behalf of other local residents, wrote to the Council questioning, inter alia, whether there was a planning permission which permitted the dismantling of ships at the TERRC. Following a series of "chasing" letters from the Public Interest Lawyers, they were eventually sent a copy of the letter addressed to Mr Stephenson dated 30th September. On the following day they informed the Council that proceedings for judicial review would be commenced. In a letter dated 17th October the Council's Chief Solicitor explained the basis upon which officers had concluded that dismantling/refurbishing ships was permitted by the 1997 planning permission. By that time, the four ships were well on their way across the Atlantic.

When the Claimants' application for permission to apply for judicial review came before Maurice Kay J on 5th November, the first two ships had docked at the TERRC and the arrival of the remaining two ships was imminent. Maurice Kay J granted the Claimants' permission to apply for judicial review and ordered that:

All four ships have been moored in the flooded basin since early November.

The ships have been referred to as the "ghost fleet" or the "toxic fleet". The Claimants contend that by reason of their very poor condition, scrapping them at the TERRC would pose a significant environmental threat to the locality, including the SPA. Able strongly disputes this description of the ships and contends that their condition is no different from that of many ships currently sailing on the high seas. It maintains that they will be recycled at the TERRC in an "environmentally friendly" way, under the most stringent controls, and that these operations will therefore pose no threat to the SPA.

I mention these arguments solely for the purpose of emphasising that it is not the function of this Court to resolve the environmental dispute between the Claimants and Able. Nor, indeed, has the Council resolved that dispute. It has simply given an officer's informal view as to the meaning of the 2002 planning permission, which in turn depends upon the meaning of the 1997 planning permission. The letter of 30th September does not express any view on the planning merits of Able's proposal to dismantle the ships. Against this background, I turn to the sole question before the Court: What is the meaning of the 1997 planning permission?

It is common ground that the interpretation of the 1997 planning permission is a question of law for this Court to determine. The parties are agreed that the relevant legal principles are set out in the judgment of Keene J (as he then was) in R v Ashford Borough Council ex parte Shepway DC (1999) PLCR 12 at pp 19C-20B. Omitting references to the authorities cited by Keene J, the relevant propositions are as follows:

Applying those principles, the relevant documents are, firstly, the 1997 planning permission which was granted to Able by the Teeside Development Corporation ("the Corporation") which was at that time the Local Planning Authority for the area which included the application site. The Corporation has been disbanded and its planning functions have now passed to the Council. The material parts of the 1997 planning permission are as follows:

Conditions 3 and 13 are as follows:

The reason given for imposing Condition 3 was "In order to define the permission ...", and Condition 13 was imposed "In order to safeguard wildlife conservation interests in the adjacent SSSI and SPA." It will be seen that the application for planning permission, the Environmental Statement and the two letters dated 19th September and 2nd December 1996 are expressly incorporated into the permission in order to define it.

The relevant parts of the application for planning permission are as follows. The site is described as:

The particulars of the proposed development are given as:

The site was said to be vacant and its last previous use was described as:

In response to various questions on the application form seeking "additional information" the reader was referred to the Environmental Statement. The list of drawings and plans submitted with the application comprised the plans and illustrations scheduled in the Environmental Statement.

In its skeleton argument the Council asserted that the two letters did not bear on the issue before the Court, because they dealt with another topic, stricken vessels. It is true that the letter dated 19th September 1996 modified the planning application by withdrawing proposals which had been described in the Environmental Statement, for handling leaking stricken vessels. English Nature had objected to those proposals.

However, the letter dated 2nd December 1996 does not deal with stricken vessels and is plainly relevant. It was written by Able's Planning Consultant to the Corporations's Chief Planning Officer and said this:

The Environmental Statement is a lengthy document, (running to over 100 pages excluding Appendices). To avoid unnecessary repetition I will set out the relevant extracts, together with my comments thereon, in my Conclusions (see post).

On behalf of the Claimants, Dr Wolfe submitted that, in ordinary language, ships were not marine structures, and that when the Environmental Statement wished to refer to "ships" or "vessels" it did so, thus treating them as distinct from marine structures. When read as a whole, the Environmental Statement, which purported to describe the proposed development and assess its environmental implications, while it did describe the dismantling or refurbishment of marine structures such as oil platforms or modules, did not describe the dismantling or refurbishment of ships.

On behalf of the Council, Mr Lowe (whose submissions were adopted by Mr Martin QC on behalf of Able) submitted that both as a matter of "ordinary English" and in the context of the 1997 planning permission "marine structures" included ships. Marine structures was a collective noun that embraced "all those structures (ie, man-made objects) made for use at sea, including ships". He submitted that no real assistance as to the meaning of the words "marine structures" in the planning permission was to be gained from either the terms of the application or the letter dated 2nd December 1996. Even if a ship was not a marine structure in ordinary language, in the context of the 1997 planning permission the term "marine structures" was capable of bearing an extended meaning so as to include all structures made by man for use on or in the sea, including ships. The Environmental Statement should be read as a whole, and not subjected to minute textual criticism, since it was prepared, not by lawyers but by environmental consultants as a tool to assist the Local Planning Authority in determining the planning merits of the application. He conceded that the Environmental Statement did not describe the dismantling or refurbishment of ships (as opposed to the dismantling or refurbishment of marine structures such as North Sea Oil Rig modules), nor did it assess the environmental implications of dismantling or refurbishing ships, but the Council's approach to the interpretation of the Environmental Statement had been that it did not positively exclude the dismantling or refurbishment of ships.

This last concession was not accepted by Mr Martin, who submitted that the activities involved in dismantling or refurbishing ships would not be materially different from the activities (dismantling or refurbishing modules) described in the Environmental Statement. In his witness statement Mr Stephenson had said that it was always his intention to be able to dismantle and refurbish ships at the TERRC and that in the demolition and waste industry the words "marine structure" are used to include ships. In support of this proposition he relied upon a number of documents, principally the International Maritime Organisation's draft guidelines on ship recycling, contained as an Annexe to the Report of the Drafting Group on Ship Recycling, dated 17th July 2003, in which "ship" is defined as:

Mr Martin also relied upon the definitions of "ship" in other legislative contexts, such as the Merchant Shipping Act 1995, and the Waste Management Licensing Regulations 1994. In paragraph 36(3) of Schedule 3 to the latter, a ship is defined as:

Section 24(1) of the Food and Environment Protection Act 1985 contains the only statutory definition of a "marine structure". In that Act, unless the context otherwise requires, it "means a platform or other man-made structure at sea, other than a pipeline."

Although Mr Martin submitted that a ship is a man-made structure at sea, it is to be noted that in the same enactment vessel "has the meaning assigned to ship in the Merchant Shipping Act 1995." This is one of those unhelpful circular definitions, since the 1995 Act provides that a ship "includes every description of vessel used in navigation." Thus, we are told that a vessel is a ship and vice versa.

Although it is necessary, in the interests of clarity, to deal separately and in turn with the planning permission and each of the documents incorporated therein, it is important to bear in mind that all of the documents forming part of the planning permission should be read and understood as a whole. Thus, if a word or phrase is used in a particular sense in the application, for example, it is to be expected that (absent any indication to the contrary) it will have been used in the same sense in the planning permission itself.

I begin with the planning permission which grants permission for various activities on the site, including "Dismantling/refurbishment of redundant marine structures and equipment." I do not accept the Council's and Able's submissions that, as a matter of "ordinary English" a ship is a "marine structure". In ordinary English one calls a ship a ship, just as one calls a spade a spade and not a "garden structure", even though it is an object made by man for use in the garden. In ordinary language a ship is no more described as a "marine structure" than a car is described as a "highway structure", a narrowboat a "canal structure", or a steam locomotive a "railway structure". If a Local Planning Authority granting planning permission wished to refer to a ship or vessel, one would expect the Authority to describe it as such, and not as a "marine structure". A planning permission should be construed in a common sense, not a strained or artificial, manner.

In interpreting any document, the surrounding context will usually be of considerable importance. I accept that in other legislative and non-legislative contexts draughtsmen have sometimes chosen to give a wider meaning to the word "ship" so as to include some marine structures. But in each case the draughtsman has been in no doubt that it was necessary to make provision, in express terms, for such an extended definition.

There is nothing in the 1997 planning permission to indicate that the term "marine structures" should be given an extended meaning so as to include ships.

Indeed, setting aside the documents incorporated into the planning permission by Condition 3, the reverse is the case, even if consideration is confined to the remainder of the operative part of the planning permission. The permitted activities include "use of land for fabrication yard for offshore structures including structures for oil and gas exploration, exploration production platforms and accommodation modules and for the construction of marine-related structures and equipment and storage of civil engineering plant and equipment former John Laing Offshore construction facility."

There is no hint that shipbuilding, or shipbreaking, is contemplated. The list of proposed activities is a lengthy one, and for a planning permission a relatively detailed description of the proposed activities is given. In this context there is nothing to suggest that "marine structures" was being used as a convenient shorthand to include ships in addition to the offshore and marine structures that are mentioned.

I turn to the application for planning permission. The application describes the site and its previous use as a former "offshore construction facility" used for "construction of oil rigs and associated marine structures". Again, there is nothing in the application to suggest that it was used for shipbuilding, or that "marine structures" was intended to include ships. The application refers one to the Environmental Statement for a detailed description of the proposals.

The letter dated 2nd December 1996 contends that the operations involved "in fabricating such structures or in refurbishing or dismantling them must be regarded as being very similar." The structures referred to are "offshore structures, principally oil and gas exploration/production platforms and accommodation modules ... and other marine-related structures and equipment."

This letter does not suggest that the "offshore structures" or "marine-related structures" included ships.

Finally, I turn to the Environmental Statement. I accept Mr Lowe's submissions (which were not disputed by Dr Wolfe) that the Environmental Statement should be read as a whole, in a common sense and not in a legalistic way and bearing in mind its underlying statutory purpose. It is a document prepared by environmental consultants, not by lawyers, for the purpose of assisting the Local Planning Authority in its consideration of the planning merits of the proposals. The Environmental Statement was prepared by a reputable firm of environmental consultants, RPS Clouston. In paragraph 1.1.4 they explained that its format, in dealing with the issues identified in the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 then in force was:

Pausing there, if it had been intended to dismantle or refurbish ships under the umbrella of "marine structures", one would have expected the Environmental Statement prepared by these experienced consultants to describe the activities involved in dismantling or refurbishing ships, the environmental implications of such activities, and any appropriate mitigation measures.

In the Statement, the former use of the site is said to have been "for the construction of oil rigs and associated marine structures", or for "rig construction".

Under the heading, "Access by sea", paragraph 2.3.4 says this:

It will be noted that "vessels" and "barges" are mentioned separately and distinctly from "marine structures". I would accept that to rely on this paragraph alone as justifying the conclusion that the authors of the Environmental Statement did not treat vessels as though they were included within the term "marine structures" would be an over-legalistic approach. It is necessary to read further to see whether the distinction between vessels/ships and marine structures is maintained. There is no doubt that vessels were intended to use the site for various purposes. It was proposed to offer facilities for stricken vessels with leaking contaminated cargoes. As mentioned above, this part of the proposals was in due course withdrawn following objections from English Nature. An import/export dock was also proposed.

Paragraph 4.2 is headed, "Importation of Redundant Marine Structures". Paragraph 4.2.1 gives an "outline of (the) activity." The outline is as follows:

Pausing there, there is nothing in this outline of the proposed activity of importing redundant marine structures to suggest that ships are to be "imported" so that they can be dismantled.

The "Operations Envisaged" in the activity described in outline are then set out in paragraph 4.2.2, which is as follows:

It will be seen that "ships" are referred to separately from "redundant North Sea structures, modules." Both the Council and Able place considerable reliance upon this reference to "ships" (and a reference in paragraph 4.3.2 to services being provided for "merchant shipping") in support of the proposition that it was intended to import ships under the heading of "Redundant Marine Structures", and therefore it must have been contemplated that, having been so imported, the ships would be demolished or refurbished. This emphasis upon a single reference to "ships" in the context of importing redundant marine structures ignores the fact that even in this paragraph, which can fairly be described as the high water mark of the Council and Able's case on the Environmental Statement, ships are mentioned separately from marine structures. Perhaps more importantly, the submission plucks out a single word without looking at the remainder of paragraph 4.2 of the Statement. The Environmental Statement describes ten proposals, including the importation of redundant marine structures, the refurbishment of redundant marine structures, the disposal of redundant marine structures, sea dredged aggregates and import/export dock, et cetera.

In respect of each proposal an "outline of the proposed activity" is followed by a description of the "Operations Envisaged". The resources required for carrying out those operations, both in general terms and in terms of the site facilities and the operational plant and equipment required, are then described in some detail. In the case of some of the proposals "Sources of Supply" are also identified. Under the heading, "Resources - General", paragraph 4.2.3 says this:

The site facilities are listed in paragraph 4.2.4 and include following:

Other facilities for dealing with solid and liquid wastes and foul and surface water drainage are also mentioned. The list of operational plant and equipment is set out in paragraph 4.2.5 and includes the following:

Pausing there, when read as a whole, paragraph 4.2 of the Environmental Statement describes in more detail the activity outlined in paragraph 4.2.1: the importation of redundant North Sea structures, principally modules, loaded on barges; the unloading of such structures from the barges; and their being stored, pending dismantling, on the quayside.

It does not describe the activities involved in dismantling a ship, which will have been floated into the basin either under its own power, or perhaps more likely if it is to be dismantled, under tow by tugs. Although Mr Martin submitted that no other site facilities or operational equipment would be required to dismantle a ship that had been brought into the basin, that begs the question whether the ship would be dismantled in wet or dry dock conditions, or conceivably hauled out of the water by some means onto a slipway or the quayside. There is nothing in the passages from paragraph 4.2 referred to above which suggests that the marine structures are to be dismantled in the basin, as opposed to on the quayside, having been unloaded from barges.

The view that the Environmental Statement is not describing the dismantling or refurbishment of ships is reinforced by paragraph 4.3 which deals with the refurbishment stage under the heading, "Refurbishment of Redundant Marine Structures". Paragraph 4.3.1, which contains the outline description of this proposed activity, says, in part:

Under "Sources of Supply", paragraph 4.3.2 says this:

Again, it is to be observed that "merchant shipping" is mentioned in addition to "other marine structures". The Council and Able submit that the "services" to be provided to merchant shipping could include dismantling or refurbishment. If that was the case, one would have expected the activities involved in dismantling or refurbishing "merchant shipping" in the basin, or the equipment required to haul it out of the basin onto the dockside, would have been described and the environmental implications of wet dock working would have been considered. I refer to the implications of wet dock working because there is nothing in the Environmental Statement to suggest that the flooded basin will be reconverted into a dry dock. Indeed, when describing the construction phase of the proposals, paragraph 4.1.1 of the Statement says that:

Just as there is nothing describing ship dismantling in Part 4.2 of the Statement, so there is nothing describing the refurbishment of ships in Part 4.3 of the Statement, which does, however, describe the refurbishment of North Sea modules in some detail.

Services for merchant shipping, for stricken vessels, for crane and transport barges, and for ships wishing to use the import/export dock, were proposed in the remainder of the Environmental Statement. It will be remembered that the planning permission refers to the dismantling or refurbishment of "marine structures and equipment". Some indication of what was meant by marine structures is to be found in Part 4.4 of the Statement which deals with "Refurbishment of Redundant Plant and Equipment". Under "Outline" the description of the proposed activity is as follows:

Under the heading, "Disposal of Redundant Marine Structures and Equipment", paragraph 4.5.1 says this:

Section 5 of the Statement describes the Construction, Production and Operational processes that are proposed. Paragraph 5.5.1 refers to "marine structures" and says this:

Paragraph 5.20 deals with the issue of Marine Traffic and contains a table showing the maximum levels of marine traffic likely to be generated by the proposed uses at the TERRC. Various movements are shown, including movements by the barges carrying the modules for dismantling and refurbishment, but the table does not appear to include any movements for ships coming in for dismantling or refurbishment, whether under their own power or towed by tugs.

Section 6 of the Statement explains the "Need for TERRC". Paragraph 6.2 sets out why there is a need for a facility to deal with the "Refurbishment and Dismantling of Offshore Structures". If ship dismantling was envisaged, one would have expected the need for such an activity to be described here. Paragraphs 6.2.1 to 6.2.5 are as follows:

Paragraph 6.10 describes Able UK Ltd as follows:

Having described the different elements of the proposed development, the Statement then assesses their effects in Part C. Mitigation measures are set out in Part D. I can deal with these parts of the Environmental Statement quite shortly. Since there has been no description of any activities involved in the dismantling or refurbishing of ships, it is not surprising that Part C does not discuss the environmental effects of such activities. By way of contrast, the effects of the movements of the barges laden with modules are considered in terms of their possible impact upon the wintering waterfowl and the seals at Seal Sands. Finally, among the plans there is a site layout drawing which shows the "Module Dismantling Area", and the "Module Recycling Area" on the quayside, and the derelict dock gates used as barge moorings in the basin. There is nothing on the plan to indicate that ships might be dismantled or refurbished in the basin or on the quayside.

Although I have referred to the Environmental Statement in some detail, it is important not to lose sight of the need to stand back and to form an overall view of the document and to consider the implications of incorporating it, read as a whole, into the planning permission for the express purpose of defining the permission. It is common ground that a "structure" may have different meanings depending upon the particular legislative, or other contexts in which the word is being used. The Environmental Statement provides the context (an unusually detailed and comprehensive context) for the interpretation of the 1997 planning permission into which it is expressly incorporated.

If there was any basis for suggesting that the words "marine structure" in the planning permission should be given an extended meaning so to as include ships (which there is not) the Environmental Statement makes it plain beyond any possible doubt that those words do not include ships.

I say that for two reasons: Firstly, when the Environmental Statement wishes to refer to "ships", or "vessels", or indeed to "merchant shipping", it does so, in terms. Thus, we find the references in paragraphs 2.3.4, 4.2.2 and 4.3.2 to:

These separate references to ships, vessels and merchant shipping would have been unnecessary if the Environmental Statement (and hence the planning permission) had been using the term "marine structures" to refer to ships.

I acknowledge that that is a lawyers's approach, but it accords with a common sense reading of the Environmental Statement as a whole.

Secondly, the purpose of the Environmental Statement, as set out in the Assessment of Environmental Effects Regulations then in force, and in paragraph 1.1.4 of the Environmental Statement itself, was to describe the environmental implications of the activities that were being proposed on the site, and to propose mitigation measures where appropriate. While the Environmental Statement describes the activities involved in dismantling and refurbishing structures, such as modules from North Sea oil rigs, it contains no description whatsoever, much less any assessment of the environmental implications of the dismantling or refurbishment of ships. There is simply no suggestion in the Environmental Statement (beyond the single reference to "ships" in paragraph 4.2.2) that such activities might be contemplated. There is no discussion of whether dismantling or refurbishing ships would take place in the basin in wet or dry dock conditions, or after the ships have been in some way hauled out of the basin, the first questions that would have to be answered before the environmental implications of dismantling or refurbishing ships could begin to be considered.

The Council, rightly, concedes that the Environmental Statement does not deal with these matters, but it nevertheless submits that term "marine structures" in the planning permission must be interpreted as including ships because the dismantling or refurbishing of ships is not expressly excluded in the Environmental Statement.

In my judgment that is a wholly inappropriate approach to the interpretation of an Environmental Statement since it runs counter to the underlying statutory purpose that such a document is intended to serve. The purpose of an Environmental Statement is to describe the proposed EIA development so that its environmental effects can be better assessed by the Local Planning Authority. If activities are assumed to have been included, even though they have been not been mentioned at all in the Statement, merely because they have not been expressly excluded, there would be a very real danger that an Environmental Statement would fail to fulfil its statutory purpose.

I accept that there may be cases where an Environmental Statement has overlooked a particular aspect of a proposal which has then been granted planning permission. It may have become too late to challenge the validity of the planning permission on that ground. But the underlying approach to the interpretation of an Environmental Statement, having regard to its statutory function, should be that it if an activity is proposed to be carried out it will have been described, and the environmental implications of carrying it out will have been assessed in the Statement. If an activity is not described or assessed in an Environmental Statement, the proper inference to be drawn (absent any indication to the contrary) must be that it does not form part of the proposed development.

I bear in mind the observations of Keene J in the Ashford case (at page 22C) that:

In the present case not merely was this Environmental Statement incorporated into the planning permission, it was incorporated for the purpose of defining what was being permitted. It is plain that the Corporation was most anxious to tie that which it was permitting to that which had been assessed in the Statement. Since there is no conflict between the planning permission and the Environmental Statement (neither uses the term "marine structures" to include ships or vessels) there is no need to consider the question that might have arisen if there had been a conflict between what was described in the Environmental Statement and the description of the development in the operative part of the planning permission into which the Environmental Statement had been incorporated. Ashford does not deal with that issue, and neither do I in this judgment.

I can deal briefly with the remaining submissions advanced on behalf of Able. Mr Stephenson's intentions in applying for planning permission are not relevant. The question is, 'What was permitted by the Corporation?' and that is to be determined, objectively, by construing the planning permission and the documents expressly incorporated therein, as set out above. Given the importance of the context, legislative or otherwise, in which the word "structure" may be used, definitions in a variety of other contexts, statutory and non-statutory, are of no real assistance in construing the 1997 planning permission. The context for any consideration of the meaning of that planning permission is provided by the documents mentioned in Condition 3, and in particular by the Environmental Statement. Later definitions, such as that contained within the IMO's 2003 draft guidelines, are of no help in deciding what the Corporation meant when granting planning permission in 1997.

However, the IMO definition, and the other definitions mentioned by Mr Martin, do confirm the fact that there is, in ordinary language, a distinction between marine structures and ships. The draughtsman may choose to eliminate that distinction by adopting an extended meaning of "ship". The only statutory definition of "marine structure" contained in the Food and Environmental Protection Act 1985 does not include a "ship" (see above). In each case there is a recognition that express words must be used to achieve that objective. No such words are to be found in the planning permission or in any of the documents incorporated therein.

For the sake of completeness, I should mention that Dr Wolfe submitted, if his primary submissions as to the meaning of the planning permission were to be rejected, and I concluded that there was an element of ambiguity in the permission, that I could have regard to other extrinsic evidence, including letters written by or on behalf of Able to the Corporation, either accompanying, or further explaining the nature of the application. Since I have concluded that the planning permission, incorporating the documents referred to in Condition 3, is not ambiguous, I have not taken this correspondence into account. Where a planning permission does list the documents that are incorporated into the permission, it would require a very powerful case to justify the Court considering further documents under the heading of "Extrinsic Evidence". That said, it is of some comfort to note that, had I been able to take that correspondence into account, it would have shown that Able, and its planning consultant, were consistently referring separately to "vessels" and to "marine structures", and were not using the term "marine structures" to include vessels.

Dr Wolfe also referred to the views of the Agency. Prior to the modification of the Waste Management Licence Conditions on 30th September, Condition 2.1 of the Licence stated that:

The remaining types of waste listed in Condition 2.1 of the Licence are not relevant for present purposes.

In a letter dated 10th November 2003 the Agency explained to Able's Solicitors that, in its view, the term "offshore structures" did not refer to ships. It was submitted on behalf of the Claimants that there should be consistency between the approach adopted by the two regulatory authorities, the Council and the Agency.

On behalf of the Council and Able it was submitted that the Agency's views as to the meaning of offshore structures in the Waste Management Licence were not relevant to the interpretation of the 1997 planning permission. I accept those submissions. Whilst it might be desirable that the two authorities should adopt a common approach, the Agency's views are not relevant for the purpose of deciding what was permitted by the Corporation in 1997. That said, it will be apparent from the reasoning set out above, that if the Agency's views had been relevant for the purposes of this application for judicial review, I would have been in full agreement with its view that a ship is not an "offshore structure" any more than it is a "marine structure".

I should also mention the fact that in his skeleton argument Dr Wolfe advanced two further submissions, in the event that his primary submission as to the meaning of "marine structures" was not accepted. The first of those submissions related to the effect of Condition 3 which requires that the development shall be "carried out in strict accordance with ... the Environmental Statement." It has not been necessary to consider in this judgment the combined effect of Conditions 3 and 13 upon any proposal to introduce a new activity onto the site in circumstances where it was being contended that to do so would not amount to a material change of use. That would be a matter for the Council to consider if an application was made for a CLOPUD. Before me, the parties' submissions have been confined to the meaning of "marine structures" in the 1997 planning permission.

The second subsidiary submission contended that there was, in any event, an obligation to interpret the planning permission so that it did not extend the development permitted beyond that which had been assessed in the Environmental Statement, in order to give effect to the requirements of Directive 85/337/EEC (as amended) (the EIA Directive). Given my conclusions as to the proper construction of the 1997 planning permission, I did not find it necessary to consider this further submission.

For these reasons the application for judicial review must be granted. Although the Claim form sought in addition to declaratory relief, an order quashing the "decision" dated 30th September, it is now agreed that since the decision was merely an informal expression of an officer's view, a quashing order is not required and declaratory relief will suffice. I am prepared to grant a Declaration to the effect that the words "marine structures" in the 1997 planning permission do not include ships. The Order made by Maurice Kay J preventing the carrying out of any work to the ships (other than work necessary to make and keep them safe) must be continued until further order.

A final word: It is a matter of grave concern that for more than a month four redundant ships from the United States NDRF have been moored in the TERRC basin at Hartlepool. They have been brought all the way across the Atlantic by Able, with the intention of dismantling them as part of what has been described on its behalf as a multi-million pound contract. Yet, during the course of these two hearings I have not been shown either a planning permission or a Waste Management Licence which authorises Able to dismantle these four ships, or indeed any ships, at the TERRC.

Of greater concern, I have not seen an environmental assessment which describes how the dismantling of the ships will take place and what the environmental implications of such dismantling might be. I do not say that there is no such document, merely that I have not been shown such an assessment during the course of these two judicial review proceedings.

Able contends that its proposals for dismantling the ships are both lawful and environmentally acceptable. It appears to have given certain assurances to MARAD as to the existence and/or availability of the necessary permissions and licences in the context of the contractual negotiations. Despite the importance and size of the contract, Able did not apply to the Council for a CLOPUD and, for whatever reason, it has chosen not to apply for a fresh planning permission and a fresh Waste Management Licence (as opposed to an application to modify the conditions of the existing Licence). Had an application been made for planning permission and/or for a Waste Management Licence to authorise the proposed dismantling of the ships, it would have been possible for the Council and/or the Agency to give proper consideration as to whether an Environmental Impact Assessment under the Town and Country Planning (Environmental Assessment) (England and Wales) Regulations 1999 and/or an "appropriate assessment" under Regulation 48 of the 1994 Regulations should be carried out. As matters stand, the environmental dispute between the local residents (and FOE) and Able has not been resolved by the responsible regulatory authorities and yet the ships remain moored in the basin.

The present position is highly unsatisfactory from the point of view of the Council, the Agency, local residents, environmental groups such as FOE, and, indeed, Able itself. I conclude by expressing the hope that the regulatory agencies, including the Council and the Agency, will urgently conduct a thorough investigation into the decision-making processes that have so conspicuously failed to prevent this most unsatisfactory situation from arising and, perhaps more importantly, that they will take all necessary steps to decide what they now propose to do in order that the fate of these ships may be determined in a manner that is both lawful and seen to be environmentally acceptable.