Humber Oil Terminals Trustee Ltd., R (on the application of) v Marine Management Organisation

It is true that as regards the object under paragraph 5, section 14(4) of the 1964 Act provides that:

As already indicated, it is conceded by the defendant that the Act does provide machinery for the establishment of a new harbour authority to replace part only of the existing authority but this is under the mechanism of a Harbour Empowerment Order under section 16 which however, as already set out, has a critical and significant additional hurdle over which any applicant has to over come if it is to satisfy the section: it not only has to satisfy a purpose test (see section 16(5)) similar to that in section 14(2)(b), but the effect of the wording of s16(1) is that he must demonstrate that the existing harbour authority does not have the powers or sufficient powers to secure (the stated object) or to do so effectively.

In other words the defendant does not dispute that in some circumstances it might be justified to subdivide large harbours and empower a new harbour authority to have jurisdiction over it but that is something for which, through section 16 of the 1964 Act, Parliament has enabled an HEO to be obtained, but only when an applicant is able to show that ‘neither he nor any other person has powers or sufficient powers to secure it or to do so effectively’.

Mr Straker however submits that if this is the only statutory machinery available for this purpose, this produces a lacuna in the statutory provisions since it would not allow for division, and the creation of a new harbour authority for part, of an existing harbour, where notwithstanding the adequacy of the powers residing in the existing harbour authority, this is considered desirable in the interests of efficiency and economy and even if the existing harbour authority were agreeable or where it could be shown that a new harbour authority formed from a body with a substantial interest would better serve the interests of efficiency and economy.

Ultimately I have concluded that the construction put by the defendant upon paragraph 1 of the Schedule 2 must be correct, in other words it does not provide a power to divide an existing harbour by establishing a new harbour authority in respect of part only of the geographical extent of the existing harbour. This is for two basic reasons.

First there is the language of the paragraph. It speaks of ‘the’ harbour authority by whom ‘the’ harbour is being managed etc. and then as an alternative to reconstituting the harbour authority or altering their constitution, establishing as ‘the’ harbour authority in lieu of the existing one, an existing body or a body constituted for that purpose.

The natural meaning of these words in my judgment is the wholesale replacement of the existing harbour authority by another in respect of the whole of the harbour (‘the’ harbour) managed etc. by that existing authority. I agree with the submission made by the defendant and the other interested parties that the ordinary meaning of ‘in lieu of’ is ‘instead of’ or ‘in place of’ and that to provide something ‘in lieu of’ of something else is to provide a substitute or alternative for it in its entirety, not merely to replace it in part. In this context I was referred to various dictionary definitions of ‘in lieu of’ (Burton’s legal Thesaurus (4^th.ed) 2006) –‘as a substitute for, as an alternative, as a proxy for, in place of, instead of …’; Oxford English Dictionary, 2011 ‘in the place, room, or stead of, in exchange or return for, …’). I was also referred to the observation of Lewison J in Ultraframe v Fielding [2005] EWHC 1638(Ch) in the context of a company law dispute, that the ‘ordinary meaning’ of the phrase ‘in lieu of’ is ‘instead of’.

I would in this context agree with the submissions developed by Mr Drabble QC on behalf of ABP that further support for this interpretation can be found when considering the context in which the words falling for interpretation appear. They do so as an alternative to the reconstituting of the harbour authority or the altering of its constitution. These prior objects to which the establishment of a new authority in lieu is an alternative, plainly do not concern geographical division of the harbour managed by the existing authority, a proposition reinforced by the provisions of section 15(1) (a) of the Act to which I have already referred under which the Minister is enabled of his own motion to make a HRO for the purpose of achieving either or both of those prior objects. I agree with Mr Drabble that no part of paragraph 1 can sensibly be interpreted as being concerned with the geographical division of the existing harbour managed by the existing harbour authority. As he put it, the power to establish a new body in lieu of the existing authority is merely a somewhat radical way of altering the constitutional arrangements under which the harbour is managed.

It is not in my judgment necessary for the purpose of upholding the defendant’s construction of paragraph 1 to read into it, words such as ‘in respect of the entirety of the harbour’ since this in my judgment is implicit both in the expression ‘the’ harbour and the expression ‘in lieu of’.

Indeed, and this is my second basic reason, it is reasonable to assume that had Parliament intended to provide for a ‘partial’ replacement it would have included words to that effect such as ‘or establishing as the harbour authority, in lieu of the existing one, in respect of all or part of the harbour, …’. The absence of such words is made the more significant by consideration of other aspects of the statutory scheme which has more than one example of Parliament making express provision, where it considered appropriate, for the revision of part only of an existing harbour and for the possible division of property as between harbour authorities. Thus paragraph 8A Schedule 2 refers to ‘enabling the authority to close part of the harbour or to reduce the facilities available to the harbour’; paragraph 16A refers to ‘Imposing or conferring on the authority duties or powers … for the conservation of the natural beauty of all or any part of the harbour.’ Section 14(2A) of the Act allows, as already set out, for the closing of part of the harbour.’

The fact that paragraph 5 so heavily relied upon by the claimant itself, by reference to words ‘all or any of the property’ expressly contemplates the division of property as between harbour authorities and, having regard to section (14)(4), a division as between an existing authority and the body established by the HRO, far from assisting the claimant in its contentions of construction under paragraph 1, in fact in my judgment has the opposite effect. As already explained, it is not suggested that paragraph 5 is a free standing provision under which a new authority can be established, and paragraph 5 only comes into play if the body has properly established the HRO. This, as far as express provisions are concerned, can only be pursuant to paragraph 1 in which the draftsman chose to make no reference to possible division of the harbour managed by the existing authority. The absence of such express provision only reinforces in my judgment the correctness of the interpretation of paragraph 1 adopted by the defendant. Nor do I consider the insertion of the words in section 14(4) ‘to which the order relates’ in the sentence ‘In the case of a harbour revision order that provides for the establishment of a body as the harbour authority for the harbour to which the order relates’ can, absent any express words in paragraph 1 allowing for a partial replacement of an existing harbour authority, have the significance which Mr Straker would give it, in support of his contrary construction of paragraph 1.

Nor do I find the other examples of objects in Schedule 2 relied on by the claimant (paragraph 3 (variation or abolition of powers); paragraph 7A (extinguishment of public rights of way); paragraph 7B (extinguishment of public rights of navigation) or paragraph 9A (development of land)) as carrying the significance contended for in the construction of paragraph 1. Their very wording enables the objects to be pursued in the way contended for by the claimant without the need to imply words such as ‘all or any’. They are not in my judgment examples of implied provision for only partial achievement of a stated object.

Nor do I consider that Mr Straker’s submission that the objects in Schedule 2 allow for the partial replacement of an existing harbour authority by a newly constituted authority, can be rescued by reliance on the provisions of paragraph 17 (‘Any object which, though not falling within any of the foregoing paragraph, appears to the appropriate Minister to be one the achievement of which will be conducive to the efficient functioning of the harbour’). No reliance upon this paragraph was made in the claimant’s application for the HRO, and I agree with the contrary submission that this paragraph has to be construed as a ‘sweeping-up’ provision to be interpreted ejusdem generis to paragraphs 1 to 16. It cannot be read to allow the achievement of any object in relation to the functioning of a harbour irrespective of the limitations imposed on the objects in the remainder of the Schedule for otherwise it would render the preceding paragraphs of the Schedule otiose. The only paragraph of the Schedule expressly providing for the establishment of a new harbour authority in substitution for an existing one is that contained in paragraph 1. If, as I have held, this cannot be construed as allowing for only the partial replacement of an existing harbour authority, paragraph 17 cannot in my judgment be used wholly to undermine what I consider to be the express intention of Parliament to allow such an object to be achieved only through the mechanism of a Harbour Empowerment Order.

Nor can the precedent orders relied on by the claimant lead to a contrary conclusion on the proper interpretation of paragraph 1. I have already set out the effect of these orders or proposed orders. As already indicated, they cannot begin to influence the court’s conclusions on interpretation unless it has decided that in principle the words permit of the construction submitted by the claimant. For the reasons already given, however, I do not consider they do.

I should record that I was at first blush impressed by the lacuna argument pressed upon me by Mr Straker. As he pointed out, there can be no dispute on the basis of the undisputed provisions of Schedule 2 that an HRO could in relation to the entirety of the existing harbour establish a new harbour authority in place of the existing authority, but under the terms of such an HRO the new body could end up with less than the existing one because of the objects provided for in Schedule 2 which allow for the closure of part of the harbour (see paragraph 8A; see also section 14(2B)) and for the alteration in the limits within which the harbour authority has jurisdiction (paragraph 6). There is moreover no dispute that an HRO (under paragraphs 5 and 6) could provide for the geographical division of an existing harbour between the existing harbour authority and another already existing harbour authority (as for example provided for in the Weymouth and Portland Orders). Why then, asks Mr Straker rhetorically, should Parliament not have provided for the establishment of a new authority for only part of the existing geographical harbour if such were justified in the interests of achieving efficiency and economy? The overall policy of the Act, he submits, must be the securing of the improvement, maintenance and management of harbours in Great Britain in an efficient and economical manner, a policy which is manifested in the remainder of the statutory provisions, such as those in section 19 allowing for the reorganisation and amalgamation of harbours and harbour authorities, and it would be an unexplained lacuna in the legislation not to have made provision for such partial replacement by a new authority and consequential geographical division, even where, for example, the existing authority had no objection.

Ultimately, however, I have been persuaded that this argument cannot assist in this court reaching a conclusion on the construction of paragraph 1 contrary to the ordinary meaning of its language and the indicators in the language of other objects in the Schedule in those paragraphs where Parliament has chosen expressly to contemplate their being applied to only part of the harbour. Moreover, if it is a lacuna it is only a partial one in that it identifies only the lack of a provision for such partial replacement which cannot be brought within the objects of and requirements of a harbour empowerment order (HEO) under section 16. Those requirements, as already explained, include the additional requirement not applicable to a HRO that the applicant be able to show that neither he nor any other person has powers or sufficient powers to secure the objects of the HEO or to do so effectively. The imposition of such a requirement of an inadequacy of powers in the existing harbour authority before a new authority may be established to take over part of the harbour, which I would accept will often be difficult to establish, does not however mean in my judgment that there is in truth any unexplained lacuna in the legislation at all. It seems to me that the defendant and the interested parties must be right when they submit that Parliament has expressly chosen to limit the circumstances in which this may occur. There is no illogicality in the adoption of a policy which is against the unnecessary proliferation of harbour authorities and requiring that a clear justification be shown by reference to the need for further powers if a new body is to come in and take over the management etc of part of an existing harbour. As Mr Drabble put it, on behalf of ABP, the statutory scheme on its proper reading requires that where an order is to be made transferring part of the geographical jurisdiction of a harbour authority to a body which is not an existing one, a case has to be made out that the powers of the existing authority are insufficient to secure the management etc of the harbour or to do so effectively. An example given was that of the need to open a wharf to transmit a specialist cargo such as nuclear waste.

Ultimately I have been persuaded that such a statutory scheme far from creating an explained or illogical lacuna is a perfectly sensible one.

It follows that the first ground of challenge – that of misdirection – must fail. It must further follow that the HRO sought in this case could never have been lawfully made, being one which did not seek to achieve any of the statutory objects.

I turn to the other grounds of challenge.

I deal with these remaining grounds together since they inevitably overlap. Complaint is made that that the claimant’s application was rejected (in the sense that the defendant decided ‘that the application is not to proceed further’) at a preliminary stage before the normal procedures laid down in the Act had been completed without any consideration of its merits, and without any or any fair opportunity being given to the claimant to make any representations to the defendant before any decision to reject the application summarily was made. Specific complaint is made as to the lack of reasons given for the decision.

There are in effect two distinct complaints. The first is as to a lack of power. The second, which inevitably embraces the other of the remaining grounds, goes to the unfairness of the procedure adopted before the exercise of the power.

I have already set out the outline of the procedural provisions contained within Schedule 3 of the Act as applied by section 17 of the Act. I have no doubt that the power to reject an application in the sense of a power to decide that the application is to proceed no further, without considering its merits and without proceeding to the stage of Inquiry contemplated by paragraph 18 where, as here, objections to the application have been made, must reside in the defendant. I would accept that such a power is not conferred in terms, that is say expressly, by paragraph 18(1A)(a) since that provision simply recognises that that there may be situations in which such a decision that the application is not to proceed further has been taken. However that subparagraph self evidently proceeds on the basis that such a power exists and I do not consider that the only circumstances in which it can be exercised are those set out in paragraph 9 of the schedule under which there is a duty on the Secretary of State (and accordingly the defendant) not to consider an application for a harbour revision order unless the applicant has complied with the specified procedural requirements as to the giving of notices and so forth. If necessary I would rule that such a power is impliedly conferred by paragraph 18(1A) (a) of Schedule 3.

It is unnecessary for me to delineate the circumstances in which such power can be lawfully exercised by the defendant save to say that it has to be subject to the constraints of rationality and I do not rule that it can be exercised (by analogy with the provision for the disregard of objections in paragraph 18 (1A)(b)) only if an application is plainly, frivolous or vexatious. However, for present purposes I have no doubt that one of those circumstances must be where on the face of the application, the order applied for cannot be lawfully made, whatever the status of the applicant and whatever the merits of the application in terms of the public interest purpose test in section 14(2)(b), because it cannot be brought within any of the objects for which an HRO can be made under the Act. If there is no power in the defendant to make the order sought whatever the outcome of further consideration, then the defendant in my judgment must be entitled to decide not to allow the application to proceed further to the next stage of what could be a costly Inquiry and investigation of the merits of the application.

But of course in taking such a decision on the basis that it considers that the application on any view without any further investigation, cannot be brought within any of the statutory objects, the defendant always runs the risk that a court may yet set aside that decision on the grounds that such a conclusion was wrong in law or other wise irrational.

Thus I have no doubt that the defendant did have the power to make the decision it did in this case, it being on the basis that the application did not seek any of the objects for which a Harbour Revision Order could be lawfully made.

Given the decision I have come to, namely not only that the defendant had the power to make the decision it did, but that it did not misdirect itself as to the construction and interpretation of the material statutory provisions, and was correct in deciding that the order sought whereby the applicant was to be established as a new harbour authority for part only of the harbour within the jurisdiction of an existing harbour authority, could not lawfully be made, it must follow in my judgment that the grounds of challenge based on unfairness of procedure in failing to give the claimant prior notice of the decision the defendant was minded to make and further based on the inadequacy of reasons given for the decision, even if made out in principle, could not justify the quashing of the decision absent any prejudice to the claimant.

The claimant can point to no statutory requirement under the Act as to the giving of notice or the giving of reasons. Hence the failure to meet any such requirement of notice or the giving of reasons cannot render the decision unlawful by reason of any statutory breach of duty. I would accept of course that the general principles of natural justice and fairness will often require the giving of notice and the giving of adequate reasons, and as Mr Straker submitted there is a long standing principle that the courts will supplement a statutory procedure where necessary to ensure the requirements of fairness are met (citing for example Lloyd v McMahon [1987] AC 625,702-703 per Lord Bridge). However, if in fact no prejudice has been suffered by the party who alleges such unfairness, then no authority was cited to me to justify the quashing of what otherwise was a lawful decision. Thus for example in the context of a ‘reasons challenge’ in the context of a planning decision, see the judgment of Lord Brown in South Bucks District Council and another v Porter [2004] 1 WLR 1953, [2004]UKHL 33, at paragraph 36 (‘… A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision’). See too the rationale of the decision in R v SSHD ex parte Doody 1994 AC 551 that the prisonerclaimant in that case was entitled to know the gist of the case against him since otherwise he would be unable to make worthwhile representations. Thus Lord Mustill at page 560:

The difficulty for the claimant is that on the question of the construction of the paragraphs in Schedule 2 in particular that of paragraph 1, on the basis of the ruling I have made, there is, as the defendant submitted, by definition nothing which the claimant could have said which would have made a difference to the decision not to proceed to consider the application further. If it is correct – as I have held – that the HRO applied for cannot lawfully be made under section 14 and Schedule 2 of the Act then no prejudice can be demonstrated caused by any failure to give the opportunity to make representations.

Similarly whatever the position as to the adequacy of the reasons given in the Decision Letter, any lack of reasoning has caused no prejudice, if, as I have held, the HRO could not be made in law, then again as the defendant submitted, any absence of proper reason for not progressing the application by the decision maker in respect of it, becomes an irrelevance. I was referred in this context to a like approach adopted by the Court of Appeal in Berry & Marshall (Bolton Wood) Ltd v Secretary of State for the Environment, Food and Rural Affairs [2011] EWCA Civ 636 in disposing of a challenge to the adequacy of a planning inspector’s reasoning when dealing with an argument which the Court agreed was in any event wrong. Carnwath LJ put the matter thus:

Thus I reject these additional grounds of challenge as a basis for quashing the decision under challenge.

It follows that this claim must fail.

However for the sake of completeness I should record my views on the fairness issues raised by the claimant as a matter of principle.

In principle I do consider that fairness would normally demand that the defendant should give prior notice to an applicant that it was minded to not to progress the application further on grounds that it could not lawfully be made, with an explanation giving at least the gist of why it was minded to reach that conclusion so as to enable the applicant to make such representations as it thought appropriate and, had the claimant been able to demonstrate any prejudice by the failure to do so in this case, then relief in these proceedings might well have been appropriate. Although I appreciate the point made by the defendant that the claimant was self evidently already aware of the point being taken by the DfT that the proposed HRO could not be brought within the objects provided for by the statute (see again its letter to the defendant of the 20 December 2010 in which it expressly declined to comment on the DfT’s views as to the use of section 14 and its objects) and had been copied into the letters of objection from the first and second interested parties as well as the DfT representing in effect that the proposed HRO was not consistent with section 14 of the 1964 Act and the objects under schedule 2, this is not the same as the claimant being made aware that the defendant was about to accept any of these representations without more and in any event it might be thought that the claimant was entitled to notice of which particular parts of those representations were about to be accepted.

Had for example the decision been made on the ‘improper purpose’ ground (which, already indicated, it is now conceded it was not), then undoubtedly in my judgment the claimant was entitled to prior notice that this was being proposed since in these circumstances the claimant would necessarily have been in a position to make representations on what on any view is a fact sensitive issue (on this, see further this court’s more detailed consideration of this ground of defence below).

Equally I am satisfied that on general grounds of fairness an applicant in the position of the claimant is entitled to be given reasons for a decision made that the application is not to proceed further. Such reasons have however to be no more than is necessary to be within the ambit of the principles set out by Lord Brown in South Bucks at paragraph 36 namely that the reasons have to be intelligible and adequate and enable the reader to understand why the matter was decided as it was but bearing in mind always that ‘decision letters must be read in a straightforward manner, recognising that they are addressed to the parties well aware of the issues involved and the arguments advanced’. In other words I accept that this obligation to give reasons is not an onerous one and the adequacy of any reasons has to be judged from the point of view of the informed reader, that is to say, in this case, the claimant informed by that which had already been brought to its attention by being copied into the letters of objection from amongst others the DfT and the other interested parties.

In these circumstances given that the claimant was well aware from the prior correspondence that the point being taken by the DfT was that a HRO which sought to ‘create a new harbour from within an existing one by turning a body which is not currently a harbour authority into a harbour authority for just part of the existing harbour’ could not be brought within any of the objects relied on by the claimant, in particular paragraph 1 of schedule 2 and hence could not be lawfully granted, (see again the DfT letter of 27 September 2010), I consider that the present Decision Letter did give adequate and intelligible reasons when, having first rehearsed that the proposed order sought to transfer ownership of part of the Port of Immingham from ABP to the claimant, and that the application was for a harbour revision order under section 14 of the Act which allows an order be made for achieving all or any of the objects specified in schedule 2, and having expressly identified the particular objects which the claimant’s own statement of justification accompanying the application had said the proposed order was to achieve, (viz those in paragraphs 1, 5 and 7), it stated the ‘MMO considers that the proposed order does not seek to achieve the objects within these three paragraphs nor any other of the objects under schedule 2’ and ‘for the reasons outlined above the MMO considers the proposed order cannot lawfully be made’. It was not necessary in my view for the defendant to go further and explain in detail why it considered the construction it had put upon the paragraphs relied on by the claimant was the correct one.

However, as I have indicated whether or not the reasons given were adequate, this ground of challenge cannot be the basis for relief absent any prejudice to the claimant caused thereby.

Given the decision I have reached that this claim must fail on the grounds of challenge put forward by the claimant, it is strictly unnecessary for me to rule upon the further grounds of defence raised relating to improper purpose and alternative remedies.

However, again for the sake of completeness I set out my views upon them.

I would accept as an established principle of public law that statutory powers must be exercised in a manner that promotes the policy and objects of the statute and if the dominant purpose of the decision maker was not to promote that policy but to promote a purpose outwith the policy and the statute’s objects and/or to frustrate those objects, then the decision is an unlawful one. The leading authority is the decision of the House of Lords in Padfield v Minister of Agriculture Fisheries and Food [1968] AC 997 but I was cited a number of authorities exemplifying the application of that principle in the context of different statutes (see for example the decision of Brooke J in R v National Rivers Authority, ex p. Haughey (1996) 8 Admin LR 567 in the context of the statutory power to grant fishing licences under the Freshwater Fisheries Act 1965).

I use the expression ‘dominant’ purpose advisedly since it is not enough to rescue a decision with such a purpose outwith the objects of the statute that a collateral consequence of the decision is one within it. On this see the decision of the Court of Appeal in the Queen (on the application of P Richards and G Richards) v Pembrokeshire County Council [2004] EWCA Civ 1000 where it was held that Directions directed at the control of parking, the power to make which ultimately derived from the very same section 14 and schedule 2 of the 1964 Act with which this case is concerned, could be justified only if they could be shown to have been adopted for one or more of the purposes identified in Schedule 2, that is to say for harbour operational purposes and that it was fatal to their lawfulness that they were not in fact adopted ‘at least primarily’ for the operational purposes of the harbour but for a different primary purpose, namely to alleviate congestion and improving pedestrian safety in the centre of Tenby. At paragraph 44 Neuberger LJ said as follows:

As already set out, the defendant seeks to build upon these principles and seeks to argue that based on that which is openly set out in the Statement of Justification in the paragraphs I have already identified (see paragraphs 12 and 13 above), that the claimant’s application for the HRO has been motivated for an improper purpose out with the purposes of the 1964 Act, and that it would not in any event be lawful for the defendant to make the HRO which is sought, even if it had the power to do so, to facilitate this dominant ‘improper purpose’ strategy of the claimant. Hence it is submitted the court should in any event deny the claimant any relief even if the claimant were to be correct on its construction argument.

This submission is supported by both interested parties.

This motivation or dominant purpose of the Claimant is put in different ways but, as already set out above, it can be summarised as being to circumvent the procedures under the 1954 Act relating to the renewal of leases and to obtain a commercial advantage over the claimant’s landlord in the dispute between them over the terms of its continuing use/occupation of the land on the expiry of the current lease. ABP speaks of the HRO being sought to gain a proprietary interest rather than seeking to establish a new harbour undertaking and (para 20 of its Detailed Grounds) ‘it is clear that the claimant’s purpose in applying for the HRO is not to secure the improvement, maintenance or management of the harbour in an efficient and economical manner in the public interest but rather to circumvent the 1954 Act by the expropriation of a valuable asset owned by ABP in order first to secure exclusive possession in disregard of ABP’s potential right to regain possession under the 1954 Act, and secondly to avoid having to make proper payment for its use’.

The OPA makes similar submission referring to the claimant’s application not being ‘for the dominant purpose of achieving any of the objects in Schedule 2 of the 1964 Act but rather for the dominant ulterior purpose to attain by statutory means that which the claimant has been unable to negotiate on terms that are commercially acceptable to it, viz an extension of its rights of exclusive possession as tenants of the terminal from ABP’ (detailed Grounds para 33).

The difficulty with these submissions is that it is the defendant who is the decision maker, not the claimant, and they beg the question of whether whatever the motivation of the claimant, the proposed HRO would in fact be desirable in the interests of securing the improvement, maintenance or management of the harbour in an efficient and economical manner, i.e. whether it would meet the public interest purpose test under section 14(2)(b) of the Act. As I have already set out, on the face of its Statement of Justification, the application can be said to be predicated on the express contention that it would be inefficient and uneconomic for ABP to assume the management and operation of the Terminal. But this question under section 14(2)(b) and this contention, has as yet never been addressed or investigated by the defendant as it conceded in its decision letter and it must not be forgotten that this submission of improper purpose only arises if it is accepted that the proposed HRO is seeking to achieve one or more of the objects provided for in section 14 and Schedule 2 to the Act.

I repeat moreover my observations in paragraphs 22 and 23 above, that the Terminal, the subject of the claimant’s application, is capable of constituting a harbour in its own right and the use to which the claimant has been putting, and the operations it has hitherto been carrying on at the Terminal through the leasing arrangements, have had as their fundamental purposes, purposes which are capable of being characterised as the use of the harbour for harbour purposes. I further repeat that there is nothing in the judgment of Vos J in the proceedings under the 1954 Act which goes to undermine the bona fides of the claimant or which assists on the questions of efficiency or economy if ABP were to assume the operation of the terminal.

Moreover the defendant does not now say that it ever decided not to proceed further with the application on this ground of improper purpose, and I have no doubt if – contrary to my ruling – the proposed HRO was in principle seeking to achieve the object in paragraph 1 of the Schedule (and in consequence paragraphs 5 and 7) that it would not be proper for any conclusions to be made as to the motivations of the claimant, without giving the claimant a proper opportunity to respond to the criticism being made. The claimant has put in evidence in these proceedings through the evidence of Mr Bassford which goes to contradict the assertion of an improper motive. See Mr Bassford’s statement at paragraph 5.

Ultimately I agree with the claimant’s submissions that it would be quite wrong for this court to make any finding as to improper motive or dominant purpose of the claimant in seeking the HRO. This in my judgment is a finding of fact which it would be quite impossible for this court to investigate. I agree moreover with the claimant that in making the submission at this stage the defendant is conflating the alleged motivation of the claimant in making the order application with the reasons why the defendant might make the order if it ultimately concluded – whatever the motivation of the claimant – that the statutory purpose provided for by section 14(2) (b) would be achieved by the order. I agree that the fact the claimant may have particular motives for making the application does not prevent the statutory purposes being achieved or the defendant lawfully deciding after due inquiry provided for in the statutory procedures, that it would be desirable to make the order for the purposes set out in section14(2) (b).

The question of the claimant’s motivation might well be a very relevant consideration for the defendant when determining whether in the exercise of its discretion under section 14(1) to make the HRO if it otherwise decided that the merits test under section 14(2) (b) was satisfied (and it might arguably be a factor to be put into the balance when deciding whether the HRO met the ‘desirability of purpose’ test in that subsection), but before such factor could come into play the defendant would have to progress the application under the statutory procedures for the purposes of determining the merits test under that subsection. I accept in other words the overall submission of Mr Straker which I have summarised at paragraph 17 of this judgment. It is noteworthy that the DfT itself in its letter of 27 September 2010 anticipated, given the strength of the objections from ABP, that a public inquiry would follow.

Thus I would not – had I upheld the claimant’s construction arguments – have been prepared to refuse relief on this ‘improper purpose’ ground. And this too would have been the court’s reaction on the prematurity ground developed by Mr Moules although I accept that the point he makes in this context that the contingency of ABP assuming the operation of the Terminal upon which the application was based, has not yet materialised (given the ongoing proceedings under the 1954 Act), could again be relevant to the defendant’s consideration of the merits of the application under section 14(2) (b).

The ‘Alternative Remedy’ argument as a basis for denying relief in these proceedings is in my judgment misconceived. For relief to be denied on this basis it has to be demonstrated that there is or was some other remedy or route of redress available to the claimant to challenge the decision under challenge as for example where there is or was some statutory right of appeal against the decision, or an order made under the decision, which was suitable to determine the real issue to be determined between the parties, i.e. in this case as between the claimant and the defendant (not as between the claimant and ABP). See the analysis of the applicable principles given by Taylor LJ in R v Birmingham City Council, ex parte Ferrero Ltd [1993] 1 All ER 530, 538h-539j.

As between the claimant and the defendant the claimant seeks to challenge the decision of the defendant not to progress its application for a Section 14 Harbour Revision Order. I agree with Mr Straker that if there were another avenue by which the process of an HRO application could be supervised and the underlying issues as to the proper construction of the Act and whether the application should have been considered on its statutory merits, could have been determined, then there would be an alternative remedy. But no such avenue has been demonstrated. Proceedings under the Landlord and Tenant Act 1954 under which the issues are different could not provide that supervision although as I have indicated, it might well be a relevant consideration for the defendant to take into account when considering the application’s merits, and the application of the purpose test under section 14(2)(b), that the ongoing proceedings to obtain a new lease (relevant to whether ABP would be in a position to take over the operation of the Terminal), had not yet been concluded. Equally an application for a HEO under section 16 of Act cannot be characterised as an alternative remedy to judicial review proceedings seeking to challenge the refusal to consider making a HRO under section 14, when the requirements to be met for a HEO are different. Neither set of suggested proceedings could result in a court reviewing the correctness of the decision not to progress the HRO application. Neither set of proceedings could result in the claimant obtaining the grant of a Harbour Revision Order.

Put another way the 1964 Act provides that a person with a substantial interest may make an application for an HRO under the Act so long of course that it seeks to achieve all or any of the statutory objects. It does not provide that a person with such an interest may make such an application save where he could make an application for something else, such as an HEO or even a new lease under the 1954 Act.

Therefore had I concluded that the claimant’s application for an HRO was seeking to achieve a statutory object, then I would not have denied the claimant relief quashing the decision not to progress the application further, on the alternative remedy ground.

However for the reasons I have given I consider that the defendant was correct in concluding that the claimant’s application on its face could not achieve any of the statutory objects and the decision that the application was not to proceed further cannot be faulted. In these circumstances I dismiss the claim.

I will consider any submissions as to the form of the order and as to costs on the handing down of this judgment.