Magnohard Ltd v United Kingdom Atomic Energy Authority
| Jurisdiction | Scotland |
| Judgment Date | 15 August 2003 |
| Docket Number | No 14 |
| Date | 15 August 2003 |
| Court | Court of Session (Outer House) |
OUTER HOUSE
Lady Paton
Administrative law - Judicial review - Nuclear particles on beach - Whether order for specific performance of statutory duty appropriate remedy - Nuclear Installations Act 1965 (cap 57), sec 7
Energy law - Nuclear particles on beach - Whether occurrence causing injury to persons or damage to property - Whether order for specific performance of statutory duty appropriate remedy - Nuclear Installations Act 1965 (cap 57), sec 7
Process - Application for specific performance of statutory duty brought by judicial review petition - Whether competent - Court of Session Act 1988 (cap 36) sec 45(b), Rules of the Court of Session (SI 1994 No 143) rule 58.3
Words and phrases - 'Occurrence' - 'Injury' - 'Damage' - Nuclear Installations Act 1965 (cap 57), sec 7
Section 7 of the Nuclear Installations Act 1965 provides that the UK Atomic Energy Authority has a duty to secure that no occurrence involving nuclear matter causes injury to any person or damage to any property arising out of the radioactive properties of that nuclear matter. Section 45(b) of the Court of Session Act 1988 provides that the court may on application by summary petition order the specific performance of any statutory duty. Rule 58.3 of the Rules of the Court of Session provides that an application to the supervisory jurisdiction of the court, including an application under sec 45(b) of the 1988 Act, shall be made by petition for judicial review.
The petitioners owned property near the UK Atomic Energy Authority nuclear power station at Dounreay. They brought a petition for judicial review, averring that particles of nuclear matter from the power station had been found on Sandside Beach, and that this was material damage to the first petitioners' land and had caused injury by way of stress and anxiety to the other petitioners. They sought a declarator that the UKAEA were in breach of sec 7 of the Nuclear Installations Act 1965. They also criticised the monitoring and particle-removal programme conducted by the UKAEA's contractors acting in compliance with conditions imposed by the Scottish Environment Protection Agency and sought to have the UKAEA ordained to implement an alternative monitoring and particle-removal programme specified by the petitioners in a schedule to the petition. The UKAEA argued that (1) the petition was incompetent as judicial review procedure was restricted to applications to the supervisory jurisdiction relating to the exercise of administrative decision-making powers where the manner of the exercise of the power was challenged; (2) the petition was irrelevant in that the UKAEA (a) had no statutory duty to monitor or clean up and (b) had caused no injury, property damage or infringement of human rights; (3) the case was not suitable for an order for specific performance under sec 45(b) of the 1988 Act as it was not sufficiently clear and precise; (4) in any event, the court should not exercise its discretion under sec 45(b) by granting an order for specific performance as (a) the UKAEA would be subject to two monitoring regimes and (b) an order imposing a more rigorous monitoring regime would not achieve the petitioners' aim as particles would continue to arrive on the beach; and (4) the interim order should be refused as it was impracticable. The petitioners argued that (1) the application for specific performance of a statutory duty was a separate remedy from judicial review but had been incorporated, for administrative reasons, into judicial review procedure; and (2) there had been a change in the physical characteristics of property and damage and injury.
Held that: (1) it was competent to seek specific performance of a statutory duty by way of a petition for judicial review (paras 118-131); (2) the arrival of a radioactive particle at the beach and the fact of its remaining on the beach were each an 'occurrence' within sec 7(2)(c) of the 1965 Act (paras 137-141); (3) the stress and anxiety averred by the petitioners did not constitute an injury (paras 148-153); (4) the property of the first petitioners, ie the beach, had suffered physical damage (paras 154-158); and (4) the petitioners were not entitled to an order for specific performance in the terms sought as sec 7 of the 1965 Act did not impose any clear statutory duty to monitor, or to attempt to cure or clean up, any damage or contamination caused by an occurrence involving nuclear matter (paras 162, 163) and declarator granted, order for specific implement refused, and continued first hearing ordered.
MAGNOHARD LTD and others brought a petition for judicial review against the UK Atomic Energy Authority and the Scottish Environment Protection Agency seeking, inter alia, a declarator and an order for specific implement of a statutory duty.
The cause called before Lady Paton for a first hearing, on 11 to 14 and 18 to 19 February 2003.
Cases referred to:
Alcock v Chief Constable of South Yorkshire PoliceELR [1992] 1 AC 310
Annan v Leith Licensing Authority (1901) 9 SLT 63
Black v The Braer Corp 1999 SLT 1401
Blair v Lochaber District Council 1995 SLT 407
Blue Circle Industries plc v Ministry of DefenceELR [1999] Ch 289
Carlton Hotel Co v Lord AdvocateENR 1921 SC 237
Davidson v Scottish MinistersSC 2002 SC 205
Docherty (T) Ltd v Monifieth Town CouncilSC 1970 SC 200
Guerra v ItalyHRC (1998) 26 EHRR 357
Hardie v City of Edinburgh Council 2000 SLT 130
Hatton v United KingdomHRC (2002) 34 EHRR 1
Haydon v Kent County CouncilELR [1978] QB 343
Highland and Universal Properties Ltd v Safeway Properties LtdSC 2000 SC 297
Hunter v Canary Wharf LtdELR [1997] AC 655
Lafarge Redland Aggregates v Scottish MinistersSC 2001 SC 298
Lopez Ostra v SpainHRC (1994) 20 EHRR 277
McLoughlin v O'BrianELR [1983] 1 AC 410
Mcnaughton v Mcnaughton's TrsSC 1953 SC 387
Marcic v Thames Water Utilities LtdELR [2002] QB 929
Merlin v British Nuclear Fuels plcELR [1990] 2 QB 557
Monckton v Lord Advocate 1995 SLT 1201
Rorrison v West Lothian CouncilUNK 2000 SCLR 245
S v France (1990) 65 DR 250
Stannifer Developments Ltd v Clydeport, Lord Macfadyen, 1 February 2000, unreported
Walker v Strathclyde Regional CouncilSC 1986 SC 1
West v Secretary of State for ScotlandSC 1992 SC 385
White v Chief Constable of South Yorkshire Police [1999] 2AC 455
Textbooks etc referred to:
Lord Clyde and D Edwards, Judicial Review (1999, Scottish Universities Law Institute/W Green, Edinburgh), paras 1.02, 1.04, 8.48, 23.03
D M Walker Civil Remedies (1974, W Green, Edinburgh), p 273
At advising, on 15 August 2003 -
LADY PATON -
[1] The petitioners own property situated near the United Kingdom Atomic Energy Authority (UKAEA) power station at Dounreay in the north of Scotland. The first petitioners are a limited company, owned by the Minter family. The company owns Sandside Estate, including Sandside Beach lying adjacent to the power station, together with fishing rights extending 22.2 kilometres out to sea. The second and third petitioners are a married couple, Geoffrey and Michelle Minter. They own and occupy Sandside House, situated near the beach. The fourth petitioner is the mother of the second petitioner. She owns and occupies Fresgoe House, situated at one end of the beach.
[2] In this petition for judicial review, the petitioners aver that particles of nuclear matter have been found on Sandside beach, the source of the particles being the atomic energy power station at Dounreay. The particles are thought to come from a sea-based cache, with the result that they are moved and deposited by wind and tide.
[3] The petitioners complain that their land has been materially damaged by the deposit of the particles. In para 16 of the petition they aver that (p 39C-E):
'The heritable property of the first petitioners has been materially damaged by the deposit of the particles thereon The [second, third and fourth] petitioners' respective properties have been damaged by the release of radioactive particles from the site, and their deposit on parts of Sandside estate. The sand on the beach and on other parts of Sandside estate has become intermingled and admixed with radioactive particles from the site. The contamination of the petitioners' land by the said radioactive substances has rendered their property less useful and less valuable. The [Food Protection (Emergency Prohibitions) (Dounreay Nuclear Establishment) Order 1997 (SI 1997/2622)] has reduced the commercial return on the estate.'
[4] The second, third, and fourth petitioners further complain that they have suffered injury. In para 16 of the petition, they aver (p 39D-E):
'The second, third and fourth petitioners have suffered stress and anxiety caused by the deposit of the particles on Sandside estate, by the continuing uncertainty surrounding the origin, nature and extent of nuclear contamination on Sandside estate, and by the lack of information about the contamination and risks posed thereby.'
In para 17 of the petition, they aver:
'(d) The respondents' failures have caused the petitioners to suffer anxiety and stress. The presence of nuclear matter on the beach, and the likelihood of similar nuclear matter being present on other parts of Sandside estate, has caused the petitioners to alter their pattern of land use, and to avoid parts of the estate which they previously used to enjoy. For example, the petitioners no longer walk on the beach with their dogs, as they used to do.'
[5] As a result of the damage and injury complained of, the petitioners seek, inter alia, a declarator that the UKAEA are in breach of sec 7 of the Nuclear Installations Act 1965, in terms of which the UKAEA have a duty to secure that no occurrence involving nuclear matter causes injury to any person or damage to any property arising out of the radioactive properties of that nuclear matter.
[6] The petitioners...
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