Harbour authority – Harbour revision order – Harbours Act 1964 – Second claimant port authority granting lease of port to first claimant company to act as agent – First claimant applying for harbour revision order establishing it as port authority supported by second claimant – Defendant marine management organisation rejecting application – Claimants applying for judicial review – Whether defendant misdirecting itself on relevant test – Whether defendant failing to take account of relevant considerations – Whether defendant acting unfairly – Application dismissed.
The second claimant port authority granted the first claimant company a 99-year lease of the Great Yarmouth Port to act as landlord for port tenants and exercise its functions on an agency basis. The first claimant subsequently applied for the making of the Great Yarmouth Harbour Revision Order to establish the first claimant as the harbour authority in lieu of the second claimant. The defendant, which exercised delegated power from the minister under the Harbours Act 1964, appointed an inspector who, following a public inquiry, recommended that the order should not be made. The defendant accepted that recommendation and decided not to make the order on the basis that it was not satisfied that the making of the order was desirable in the interests of procuring the improvement, maintenance or management of the harbour in an efficient and economical manner, as required by section 14(2)(b) of the Harbours Act 1964. The interested party operated a significant leisure complex on the coast south of Great Yarmouth.
The claimants applied for judicial review of that decision contending that: (i) there had been a misdirection or error of law by the defendant as to the meaning of section 14(2)(b) of the 1964 Act; (ii) the defendant had failed to take account of relevant considerations; (iii) the procedure adopted had been unfair because the claimants had been deprived of an opportunity to present their arguments fully and it had been procedurally and substantively unfair for the defendant to take account of legal advice from an unspecified source of which the claimants had no knowledge and which they had had no opportunity to consider.
Held: The application was dismissed.
The statutory language of section 14(1) of the 1964 Act was that the defendant might make an order subject to certain preconditions in schedule 2 being met, which meant that it had a discretionary power, not a duty. It was not just a matter of deciding whether or not an object in schedule 2 was capable of being met, and whether the making of an order was desirable in the interests specified in section 14(2)(b). The statute conferred on the defendant a residual discretion which had to be exercised in the public interest. Desirability in section 14(2)(b) was not confined to whether a harbour revision order would achieve any of the objects in schedule 2. The fact that application could be said to be for achieving an object under paragraph 17 of schedule 2 would not necessarily get it home in terms of desirability. Desirability within section 14(2)(b) was something more than being capable of being desired. The statutory requirement was that the defendant be satisfied that the making of the order was desirable, on the evidence, in securing the interests spelt out there. A range of considerations would enter from the evidence into the calculus of desirability. Those needed to be weighed to reach a conclusion on desirability vis a vis securing the interests set out in section 14(2)(b). There was nothing in the language or design of the statute to suggest that the defendant was confined in the course it could take. If Parliament had not intended to confer a discretionary power, it could have made that plain, but it had not done so. It did not follow that something capable of being the object of desire was desirable in fact. There had been no arguable misdirection or error of law on the part of the defendant and it could not be said that making the order had definitely not the only rational course open to the defendant; nor that the order would inevitably have resulted in operational and business improvements in the harbour: Julius v Lord Bishop of Oxford (1874-80) 49 LJQB 580 considered.
(2) The defendant had not failed to take account of relevant matters. The question with a complaint of inadequate reasoning was whether the decision letter left room for genuine as opposed to forensic doubt as to what the decision maker had decided and why. The defendant had reached a decision on the facts of the present case and the evidence in support. None of the previous decisions referred to by the claimants had meant that the only rational decision that could be made in the instant case had been to make the order: R (on the application of Rank) v East Cambridgeshire District Council [2002] EWHC 2081 (Admin); [2002] PLSCS 209 and R (on the application of Havard) v South Kesteven District Council [2006] EWHC 1373 (Admin) distinguished; Clarke Homes Ltd v Secretary of State for the Environment and East Staffordshire District Council (1993) 66 P & CR 263 and South Bucks District Council v Secretary of State for Transport, Local Government and the Regions [2004] 1 WLR 1953 applied.
(3) As regards the fairness of the procedure, the defendant had simply been applying a correct interpretation of section 14 and expressing that in lay terms. The claimant had had every opportunity, which they had taken, to advance their interpretation of section 14 and how they said the prerequisites to the making of the revision order had been met. There was no general requirement for an inspector to reveal any provisional thinking. The inspector and the defendant had come to clear conclusions about the case advanced for the claimants and had explained why they had done so. A general principle of fairness required that parties should see the documents and advice which decision-making bodies utilised. However, that did not apply to internal legal advice to ministers. In the present case, the claimants had overlooked both legal professional privilege and how the machinery of government functioned: Bushell v Secretary of State for the Environment [1981] AC 75 applied. Castleford Homes Ltd v Secretary of State for the Environment, Transport and the Regions [2001] EWHC 77 (Admin); [2001] PLSCS 30 and Van Orshoven v Belgium (Application 20122/92) 26 EHRR 55 considered. Ruiz-Mateos v Spain (Application 12952/87) 16 EHRR 505 distinguished.
Gregory Jones QC and Jeremy Pike (instructed by Burges Salmon) appeared for the claimants; James Maurici QC and Sasha Blackmore (instructed by Browne Jacobson) appeared for the defendant; John Howell QC (instructed by Hill Dickinson LLP) appeared for the interested party represented.
Eileen O’Grady, barrister
