Oil terminal – Termination of lease – Harbour revision order (HRO) – Claimant applying for HRP transferring of ownership to itself of part of port – Defendant refusing application – Claimant seeking judicial review – Whether defendant having power to grant HRO in respect of part of port only – Application dismissed
The claimant was a joint venture company operated by two oil companies which leased land on which a terminal, comprising a jetty, pipelines and an oil terminal, was situated. The first interested party was the statutory harbour authority and the freehold owner of the land. The claimant had been the tenant of the land under leases granted by the first interested party. The defendant was an executive non-departmental body established under the Marine and Coastal Access Act 2009 which exercised the decision-making powers and functions of the secretary of state in relation to harbour orders.
In 2009, the first interested party served on the claimant notices, under section 25 of the Landlord and Tenant Act 1954, to terminate the leases and announced its intention to oppose the grant of new tenancies. Accordingly, the claimant applied for a harbour revision order (HRO) under the Harbours Act 1964, the effect of which would be to bring about a geographical division of the existing Port of Immingham and remove the terminal from the jurisdiction of the first interested party as harbour authority and establish the claimant as a new harbour authority for the terminal and associated landside infrastructure, leaving the first interested party as the harbour authority for the remainder of the port.
The first interested took part in the proceedings as there would be important property consequences as the land making up the terminal would be compulsorily transferred to and acquired by the claimant. The second interested party was an executive non-departmental body responsible, as managing agent, for the government’s pipelines and storage systems. It took an active part in the proceedings because it was concerned that the 1964 Act was being used to expropriate part of the port and that the establishment of multiple harbour authorities for the port in these circumstances might jeopardise the effective operation of the jetty.
The defendant refused the application. The claimant applied for judicial review of that decision. An issue arose whether the objects in Schedule 2 of the 1964 Act permitted the establishment of a new harbour authority in place of an existing one for part only of the harbour.
Held: The application was dismissed.
Paragraph 1 of Schedule 2 to the 1964 Act did not provide a power to divide an existing harbour by establishing a new harbour in respect of part only of the geographical extent of the existing harbour. The natural meaning of the words used in the paragraph was 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. The ordinary meaning of “in lieu of” was “instead of” or “in place of” and to provide something in lieu of something else was to provide a substitute or alternative for it in its entirety, not merely to replace it in part: Ultraframe v Fielding [2005] EWHC 1638(Ch) considered.
It was 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 was made the more significant by consideration of other aspects of the statutory scheme which had 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 of Schedule 2 referred to “enabling the authority to close part of the harbour or to reduce the facilities available to the harbour”; paragraph 16A referred 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 allowed for the closing of part of the harbour.
It followed that the defendant had power to make the decision it had on the basis that the application did not seek to achieve any of the statutory objects for which an HRO could lawfully be made.
Timothy Straker QC and Jonathan Moffett (instructed by DLA Piper LLP) appeared for the claimant; James Maurici and Gwion Lewis (instructed by Browne Jacobson LLP) appeared for the defendant; Richard Drabble (instructed by Associated British Ports) appeared for the first interested party; Richard Moules (instructed by the Oil and Pipelines Agency) appeared for the second interested party.
Eileen O’Grady, barrister
