R Dean v Secretary of State for Business, Energy and Industrial Strategy
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 15 December 2016 |
| Neutral Citation | [2016] EWHC 3775 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4951/2016 |
| Date | 15 December 2016 |
[2016] EWHC 3775 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mrs Justice Lang
CO/4951/2016
Mr D Wolfe (instructed by Friends of the Earth Rights and Justice Centre) appeared on behalf of the Claimant
Mr E Metcalfe (instructed by the Government Legal Department) appeared on behalf of the Defendant
Mr J Maurici QC (instructed by Eversheds) appeared on behalf of the Interested Party
This is a renewed application for permission to apply for judicial review of the defendant's decision to enter into a deed, dated 28 June 2016, to vary the terms of a petroleum exploration and development licence previously granted to the interested party. Permission was refused on the papers by Dove J.
Some preliminary matters: I grant the application to substitute Dart Energy West England Limited as an interested party. I consider that the claimant does have standing to bring the claim, he is a resident of the area in which the licence has been granted and he is concerned about the environmental impact of potential fracking operations which could follow on from the exploration carried out under the licence. He is a parish counsellor who sits on the Neighbourhood Plan Steering Committee and these factors are sufficient to give him standing, in my view.
The defendant submits that the decision is not susceptible to judicial review because the licence and the deed of variation are governed by the private law of contract. In my judgment, the legislative framework under EU and Domestic Law which now regulates the Crown's grant of such licences means that it is arguable that the decision-making process is subject to challenge on public law grounds.
I therefore do not agree with Dove J on this issue, although I note he did not have the benefit of seeing the claimant's reply to the defendant's arguments which I have had.
The claimant's ground of challenge is that in the absence of any express power to vary the licence in the statutory scheme, the defendant had no power to vary and so acted ultra vires. The claimant points to model clauses incorporated in the licence which provide for other types of extensions but not for extensions of the initial term.
The claimant submits that the controls afforded by the statutory regime would be defeated if the defendant retained power to vary the claims of the licence after it came into force.
Against that, the defendant submits the statutory framework does not set out an exhaustive code for the exercise of the defendant's powers. The defendant has, on many occasions, exercised its contractual power to vary the licences and it would produce an unworkable and unduly restrictive regime if it could not do so.
In this case, the variation did not have the effect of altering the overall length of the licence, as while the initial term was extended, the second term was correspondingly shortened and the production period was left unaffected.
In my view, these competing arguments both have force, particularly the defendant's. However, I am not deciding the claim but only deciding whether or not it is arguable.
In my view, it is arguable and if the claimant is correct the outcome will be likely to be different. Subject, therefore, to the question of delay, I would grant permission.
So turning now to the question of delay, the application was made on 29 September. There was no pre-action protocol letter.
The Oil and Gas Authority announced the variation online on 30 June. The deed was not posted online but an unexecuted draft of the deed was provided to another individual, a Mr Roxburgh, upon an earlier request and he passed a copy to the claimant on, or very soon after, 30 June. The claimant made a formal request for the full deed on 15 September, and duly received it on 19 October.
The reason for the delay, I am told, is that the claimant only became aware of the possibility of bringing a claim late in the 3 month period, leaving no time for the pre-action protocol procedure; and he or his solicitors were aware from another pre-action letter on the same point but in relation to a different licence that the Secretary of State did not agree with the challenge that the claimant wished to raise.
Arguably, the Uniplex principles apply as EU directive 94/22/ EC implemented by the Hydrocarbons Licencing Directive Regulations are engaged, and so the court ought not to rely upon the requirement to act promptly as it offends EU principles of certainly and effectiveness.
Time runs from when the applicant knew or ought to have known of the decision according to Uniplex. Taking the 3 month period as running from the date the variation was published, which was 30 June, the application was issued just within the 3 month period.
But if I am wrong about that, and the Uniplex principles do not apply because the outcome of the claim does not ultimately turn on a point of EU law, then time would run from the date of the decision which is calculated under the CPR from the day after the decision, see R (Berkey) v Newport CC, [2012] EWCA Civ 378, per Lord Justice Moore-Bick at [48]. So, applying those principles here, the application was issued one day late.
If that is the correct analysis, I would exercise my discretion to extend time because the delay in issuing and the lack of promptness has not caused any significant prejudice to the defendant or interested party.
Clearly, there would be prejudice to the interested party if the claim succeeds but that has to be weighed against the public interest raised by the claim in ensuring that the licencing regime has been lawfully operated.
If the claim were to succeed the question of appropriate relief (declaratory, or a quashing order) could be considered then in the light of the implications for the interested party.
So I decide the issues of delay in favour of the claimant and grant permission.
As you know, there are standard directions.
(To counsel): Are you content for the standard directions to apply? That gives 35 days for the defendant and any other person served with a claim form to file evidence and detailed grounds, and then the 21 days for reply by the claimant.
MR WOLFE: My Lady, we are.
I think I would like to first hear from Mr Metcalfe.
MR METCALFE: Thank you, my Lady. We are just very quickly doing the maths, but as I understand it, 35 days from today, and making allowance for the Christmas period would take us to approximately 20 January?
Well, I am not so concerned with the actual dates now, but I just want to know whether that is enough time for you bearing in mind Christmas.
MR METCALFE: Well, it was necessary to do the calculation.
To see if there was enough time, yes.
MR METCALFE: To see if there was enough time. I will take further instructions, but —
I mean, you said something about making allowance for Christmas. I am open to that, but you would have to —- normally the 35 days just runs, so are you —
MR METCALFE: — yes, I am just seeing.
How much do they want off for Christmas?
MR METCALFE: Due to a loss of client availability over the Christmas period, we would ask for a term of 35 days. That would be 50 days.
So you want 15 days off for Christmas?
MR METCALFE: We would ask for an additional 15 days to allow for the judicial review.
That is going to be a very good Christmas
MR METCALFE: It is not unusual, of course, around the Christmas period for different individuals to take their leave at different times.
Yes.
MR METCALFE: Some may be before Christmas, and some may be after.
Yes.
MR METCALFE: It is making allowance for everyone to be in the same place at roughly the same time.
Yes, Mr Maurici, do you have a —
MR MAURICI: — I am not going to ask for more than that, my Lady, so I am content with that.
But you do want more than 35 days?
MR MAURICI: My Lady, we would, yes, we would ask, for the same reasons to have the extra time off and 15 days is sufficient.
All right.
MR WOLFE: My Lady, we are content with 35 days after that and we do not oppose their request for a number in the first phase.
You are content with 50 days, are you?
MR WOLFE: We are content with their 50 day request, yes.
All right. Time estimate: day and a half?
MR WOLFE: Yes.
Two days?
MR METCALFE: Day and a half.
MR MAURICI: Day and a half, yes.
MR WOLFE: The question, my Lady, of the Aarhus?
Yes, coming to that next. So, obviously, the costs order made by Dove J has to be set aside, but I need to determine for the future conduct of the claim whether the Aarhus Convention provisions apply.
MR WOLFE: Indeed.
Do you want to go first on that that, it is resisted, is it not?
MR WOLFE: My Lady, the question under the CPR is whether it is within Aarhus Convention, I will not take you through the CPR, and you have the Aarhus Convention at the back of the legal material bundle.
Really, at 5 to 1, I am not going to be able to...
To continue reading
Request your trial