R Great Yarmouth Port Company Ltd v Marine Management Organisation
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 19 September 2013 |
| Neutral Citation | [2013] EWHC 3052 (Admin) |
| Docket Number | CO/3338/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 September 2013 |
[2013] EWHC 3052 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Hickinbottom
CO/3338/2013
Mr Richard Drabble QC (instructed by Burges Salmon) appeared on behalf of the Claimant
Mr James Maurici QC (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
Introduction
The Claimant seeks to challenge the defendant licensing authority's decision of 20 December 2012 to vary its marine licence in relation to the construction of an outer harbour at Great Yarmouth (the Outer Harbour"), extending that licence to 31 December 2014 for the purposes of monitoring the effects of those works which were, by that time, otherwise complete.
The claim was lodged on 20 March 2013. On 18 June 2013, Dingemans J directed that the application for permission to proceed be adjourned to a rolled-up hearing, which has come before me today. In making that order, the judge observed that he considered the merits of the challenge to be arguable; but that the Defendant's submissions that the Claimant had failed to pursue an alternative remedy — a statutory appeal — and had delayed pursuing this claim were also arguable. He ordered a rolled-up hearing to preserve those procedural arguments.
At the hearing today, the Claimant has been represented by Richard Drabble QC, and the Defendant by James Maurici QC. In addition to their oral submissions, they have lodged extensive written submissions on both the substantive and procedural issues, for which I am grateful.
The Legislative Background
The Great Yarmouth Outer Harbour Act 1986 ("the Outer Harbour Act") empowered the Great Yarmouth Port and Haven Commissioners to construct the Outer Harbour. The Claimant is responsible for those construction works.
At all material times, such works have required a licence. Prior to 6 April 2011, licences for construction works in the sea or on the sea-bed were issued by the Secretary of State for the Environment, Food and Rural Affairs under Part II of the Food and Environment Protection Act 1985 ("the FEP Act"). Section 5 of that Act required a licence for "the deposit of substances or articles within the United Kingdom waters… either in the sea or on the sea-bed"; and, thus, for the deposit of concrete etc for the purposes of construction. Section 8 gave the Secretary of State a wide discretion as to the provisions of any licence granted.
The FEP Act was revoked on 6 April 2011, when Part 4 of the Marine and Coastal Access Act 2009 ("the MCA Act") came into force. This Act established and gave powers to a new public body, the defendant in this claim, the Marine Management Organisation ("the MMO").
One of this body's main functions is to regulate activities in the sea and on the sea-bed by a system of "marine licences". By section 65 of the MCA Act, no person may carry on a "licensable marine activity" except in accordance with a marine licence granted by the MMO. Section 66 defines "licensable marine activity" specifically to include activities "to construct, alter or improve any works within the UK marine licensing area either (a) in or over the sea, or (b) on or under the sea-bed", as well as simply depositing any substance or object within such an area. The site of the Outer Harbour at Great Yarmouth is within the UK marine licensing area.
Section 71(1)(b) enables the MMO to grant a licence "subject to such conditions as it thinks fit"; and section 71(2) provides that such conditions may relate to:
"(a) the activities authorised by the licence; (b) precautions to be taken or works to be carried out (whether before, during or after the carrying out of the authorised activities) in connection with or in consequence of those activities."
Section 71(4) enables a licence to be for a specific period or to remain in force indefinitely. Section 71(5) enables conditions to be made that "bind any other person who for the time being owns, occupies or enjoys any use of the works in question…." Section 72 gives the MMO wide powers to vary a licence for specified reasons and, under section 72(3)(d), "for any other reason that appears to the [MMO] to be relevant".
Schedule 9 to the MCA Act deals with transitional provisions. Paragraph 4 provides that an FEP Act licence in effect as at 6 April 2011 and which:
"(i) relates to anything which falls within section 5 or section 6 of [the FEP Act], and
(ii) is an activity which, on or after that date, must not be carried on except in accordance with a marine licence granted by [the MMO],
has effect on or after that date as if it were a marine licence granted by the [MMO] in relation to that activity (a 'deemed licence')."
The Factual Background
The Outer Harbour Act required the works for the construction of the harbour to be completed within ten years. In 2003, agreement was reached between the Claimant, the Environment Agency, English Nature, the Harbour Authority and relevant local authorities for monitoring and assessing the construction. The monitoring obligations were incorporated into the Great Yarmouth Outer Harbour Revision Order 2005 (SI 2005 No 2601) ("the Outer Harbour Order"), which also extended time for the works to commence.
The first FEP Act licence (Licence No 33497/07) was issued on 19 March 2007. That authorised the depositing of concrete etc on the sea-bed required for the construction works. An amended licence was issued on 9 July 2007, which included authority for the construction of two breakwater arms. It also contained monitoring conditions. Paragraphs 9.2–9.4 required the Claimant as licence holder (i) to devise a baseline and post-construction monitoring programme, the details of which had to be agreed with the licensing authority (the Secretary of State) prior to commencement of the works; and (ii) to ensure that mitigation measures were undertaken to maintain the sand supply to adjacent beaches, and to remove sand trapped on the northern breakwater arm. Construction commenced later that month, July 2007.
The MCA Act having come into force on 6 April 2011, the first marine licence under that Act in respect of the works was issued on 20 April that year (Licence No L/2011/00017/1). The Claimant says that, although some modifications to the breakwater arms were necessary, all of the construction works had by that time been completed; although the MMO does not concede that that was the case. The amended licence itself recorded that:
"The majority of the construction has now been completed but the Licence Holder has identified a need to modify the design of the breakwater arms" (emphasis added).
Under section 3.3 of the licence, "Licence Conditions: Conditions upon completion of the works", it said:
"The conditions upon completion of the works will be confirmed once the MMO has undertaken the review set out at section 3.1.2."
Section 3.1.2 read as follows:
"The Licence Holder may not commence or undertake any works until the MMO has:
(i) undertaken a review of coastal processes in the area surrounding the works, and
(ii) given confirmation in writing to the Licence Holder that the Licence Holder may commence works.
Reason: The MMO wishes to establish what effect, if any, the works to date may have had or may have on coastal processes in the area."
The licence was amended seven times between 27 June 2011 and 21 November 2012, all of the amended licences being valid until 31 December 2012.
During this period, there was correspondence between the MMO and the Claimant with regard to the monitoring that the Claimant had done, and additional monitoring that the MMO wished them to do. Requests for additional monitoring were made at fairly regular intervals from 2006.
On 20 December 2012, pursuant to its powers under section 72(3) of the MCA Act, the MMO served the Claimant with a notice varying the marine licence by extending its end date from 31 December 2012 to the end of 2014, expressly "for the purposes of monitoring". The MMO proposed to consider the position further and, if it considered it necessary to do so, impose monitoring conditions in due course during the extended period of the licence. It is, of course, this decision to extend the period of the licence for those purposes that is the subject of challenge in these proceedings. I shall refer to this decision simply as "the decision to extend".
Since then, the correspondence has continued. The most recent letter was only yesterday. The current position is that, over and above any issue as to the power of the MMO to impose monitoring conditions at all, there remains a dispute between the parties as to whether there is scientific justification for additional monitoring and, if there is, the monitoring that would be appropriate.
The Claim
Through Mr Drabble, the Claimant challenges the decision to extend on three interrelated grounds, as follows.
Ground 1: Mr Drabble submitted that there was no power under the FEP Act that allowed the Secretary of State to impose post-construction conditions. Any post-construction conditions purportedly imposed under that Act are therefore invalid. The MCA Act gives the MMO such a power; but no power retrospectively to impose conditions in relation to activities that were licensed under the FEP Act which had been completed before the commencement of the new Act in April 2011. Thus, the MMO cannot...
To continue reading
Request your trial
-
Hamnett v Essex County Council
...other remedies, as here; the judicial review jurisdiction was a "long-stop": Hickinbottom J, in R (On the Application of Great Yarmouth Port Company Ltd v Marine Management Organisation) [2013] EWHC 3052 (Admin), at [41] – [42]. DISCUSSION 21 As foreshadowed, two principal Issues arise on t......
-
Watch Tower Bible & Tract Society of Britain & Others v The Charity Commission
...36. I would also refer to the helpful and comprehensive summary of the relevant principles by Hickinbottom J in R (Great Yarmouth Port Co Ltd) v Marine Management Organisation [2013] EWHC 3052 (Admin) at paras 35 to 72. The first issue: the decision to initiate the Inquiry 20 The case advan......
-
R Tarian Hafren Severn Shield CYF v Marine Management Organisation
...Ltd) v Environment Agency [2019] EWCA Civ 1962; [2020] Env LR 16, CAR (Great Yarmouth Port Co Ltd) v Marine Management Organisation [2013] EWHC 3052 (Admin); [2014] LLR 361R (Jones) v Mansfield District Council [2003] EWCA Civ 1408; [2004] Env LR 21, CAR (National Association of Health Stor......
-
R Veolia Es Landfill Ltd and Another (1st Respondent) v Viridor Waste Management Ltd and Others (2nd Respondent) FCC Environment UK Ltd and Another (3rd Respondent) Alpha Resource Management Ltd (4th Respondent) Sita UK Ltd and Others (5th Respondent) HM Commissioners for Revenue and Customs
...authorities in her favour on this application. She also cited R (o/a Great Yarmouth Company Ltd) v Maritime Management Organisation [2013] EWHC 3052 (Admin) but this did not add materially on the question whether the tax appeals route provided a remedy which had to be exhausted first before......