R (on the application of Great Yarmouth Port Company and Great Yarmouth Port Authority v Marine Management Organisation Bourne Leisure (Hopton) Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 24 March 2014 |
| Neutral Citation | [2014] EWHC 833 (Admin) |
| Docket Number | Case No: CO/14873/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 March 2014 |
[2014] EWHC 833 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Cranston
Case No: CO/14873/2013
and
Gregory Jones QC and Jeremy Pike (instructed by Burges Salmon) for the Claimants
James Maurici QC and Sasha Blackmore (instructed by Browne Jacobson) for the Defendant
John Howell QC (instructed by Hill Dickinson LLP) for the Interested Party
Hearing dates: 11, 12 March 2014
Introduction
This judicial review is a challenge to a decision of the Marine Management Organisation ("the MMO") not to make a Harbour Revision Order in respect of the port of Great Yarmouth. The decision of the MMO was that it was not satisfied that the making of the order was desirable in the interests of the improvement, maintenance or management of the harbour in an efficient and economical manner. That is the test set out in section 14(2)(b) of the Harbours Act 1964 ("the 1964 Act"). The challenge turns on the proper interpretation of those words and also well known principles of judicial review. The claimants are the Great Yarmouth Port Company Limited ("the Company") and the Great Yarmouth Port Authority ("the Authority"). The defendant is the MMO since it exercises delegated power from the Minister under the Harbours Act 1964 (Delegation of Functions) Order 2010, SI 2010 No 674 ("the Delegation Order"). The interested party, Bourne Leisure (Hopton) Ltd ("Bourne Leisure"), operate a significant leisure complex on the coast south of Great Yarmouth.
Background
Great Yarmouth, situated at the mouth of the River Yare, has been an important trading port for centuries. Statutory powers were granted to the commissioners of the port as early as the late 1600s. The port's jurisdiction once extended a considerable distance into the Norfolk Broads. However, it now comprises the river port, with berths on both sides of the river and extending to just upstream of Haven Bridge, and the deep water Outer Harbour. Although in close proximity these have distinct entrances from the sea.
The privilege of taking dues and tolls at harbours where customable goods were landed was part of the Royal prerogative. The Crown granted rights to make harbours over a person's own land or the land of another: see Coulson & Forbes, The Law of Waters, 6 th ed, 1952, 83. To facilitate the making of private Acts for particular harbours, Parliament enacted the Harbours, Docks, and Piers Clauses Act 1847, which contained model clauses. The Great Yarmouth Port and Haven Act 1866 constituted commissioners for the conservation and improvement of the port and harbour. That Act was amended over the following century. The Great Yarmouth Outer Harbour Act 1986 ("the 1986 Act") conferred power on the commissioners to construct works and to acquire lands in relation, as the name suggests, to the outer harbour. Section 41 of the 1986 Act empowers the commissioners to let the outer harbour for a term not exceeding 99 years and transfer powers to the lessee (except the power to make by-laws). Under section 43 the commissioners can invest in and form companies, although those companies cannot be delegated any of the powers of the commissioners. The Authority is the successor body to the commissioners, with 11 members, chosen on a representative basis.
The Company is a private limited company incorporated in 2006 under the Companies Acts. It is a wholly owned subsidiary of another private limited Company, International Port Holdings Ltd ("IPL"), also incorporated in 2006 under the Companies Act. IPL is the vehicle of Global Infrastructure Partners ("GIP") for investment in ports and their management. The lead director for these companies in this case is Eliza O'Toole, who in her evidence explains that she is also President of Exolgan, which has a container terminal in Argentina, and that IPL and GIP manage, as a consortium, the Port of Brisbane.
In 2007 the Authority granted the Company a 99 year lease of the port so that it is landlord for port tenants. The Authority appointed the Company to exercise its functions on an agency basis. The agreement is confidential. Since 2007 the Company has built a new Outer Harbour and invested more than $US 100 million in the business and port infrastructure. There was a 50 percent increase in port revenue 2007–2010. The Authority sets annual tariffs on the basis of recommendations by the Company. Although the Company is responsible for providing pilotage, the pilots themselves are employed by the Authority.
In 2010 the Company applied for the making of the Great Yarmouth Harbour Revision Order 2010 ("the Revision Order"), the subject matter of this judicial review. The objective was to establish the Company as the harbour authority in lieu of the Authority. Articles 3 and 4 of the draft order would have established the Company as the Harbour Authority and transferred the Authority's statutory functions to it. Reconstitution of the Authority was to be dealt with in Article 8 and Schedule 1. The reconstitution date as defined in Schedule 1 was to be the first day of the sixth month after the expiry of the month of the operative date, the operative date being when the order came into effect.
The proposal for the Revision Order was published in February 2010. There was significant delay as the Company attempted to accommodate the range of objections which followed. Some of the delay was also attributable to the MMO, which had only recently assumed delegated powers under the 2010 Delegation Order. At the hearing I expressed concern about the delay. Given that certain objections were not resolved, ultimately the MMO caused a public inquiry to be held pursuant to the Harbours Act 1964, Schedule 3, para 18(1)(b). The task was entrusted to Mr L Rodgers, an engineer ("the Inspector").
The Inquiry
The Inspector held a pre-inquiry meeting on 1 March 2013 and heard evidence and submissions on 9, 10 and 12 April 2013. There was a site visit on 11 April. There is no need to rehearse all the evidence and submissions received by the Inspector at the public inquiry. Of significance to this judicial review, however, is the claimants' case, the submissions of two of the objectors (the Great Yarmouth Port Users Association and Bourne Leisure) and the stance of the Department of Transport.
The claimants' case for the Revision Order was set out in Ms O'Toole's evidence to the Inquiry and in the submissions of Gregory Jones QC. Ms O'Toole explained the rationale of the Revision Order, that the current arrangements for the port were hindering its growth. The success of the port was dependent on the understanding and confidence of its customers. By transferring the statutory powers from the Authority to the Company there would be an entity readily understood within the industry. The Company's customers were confused by the existing structure, which was different from other ports. Much time and expense (including legal expense) were wasted because of the unorthodox arrangements. Potential customers could be put off. In the very heavily competitive environment the complexity of the existing structure was economically disadvantageous and a hindrance in enabling the smooth, economic and efficient consummation of commercial transactions. It resulted in the port becoming less attractive and more expensive when compared to other competing ports. The Revision Order would introduce normal commercial arrangements and put the Company in the same position as other major commercial ports in England, which are also statutory harbour authorities. In addition to transferring the undertaking and functions of Authority to Company, the Revision Order provided for the consequential rationalisation of Authority's Board. In doing so it brought the Authority into closer compliance with the government's guidance in Modernising Trust Ports.
The Great Yarmouth Port Users Association, representing some 20 of the main businesses operating in the port, appeared before the Inquiry. Their evidence was of a concern with the Company's operation of the port. As to the Company's case, they knew of no confusion whatsoever with regard to the port structure. The Company's website was plain and simple and without confusion, including berthing arrangements and tariffs. Since the Company had leased the port for 99 years what could be clearer. Consequently the Port Users Association believed that this could be easily explained to both existing and potential customers. Their case was that the Company's Revision Order was unique in as much as it have already been gifted the assets of the Authority and Great Yarmouth Borough Council, together with over £19 million of public money, without any direct financial return.
At the Inquiry Bourne Leisure was represented by John Howell QC. He submitted that Ms O'Toole's evidence had eschewed any attempt to show that the Revision Order was required. Nor had she made any attempt to show that the order, if made, would be desirable in the interests of facilitating the efficient and economic transport of goods by sea. What she appeared to contend was that the position at Great Yarmouth was anomalous. In her answer to the Inspector's questions, Ms O'Toole cited as an example of people's confusion about the existing arrangements the misunderstanding on the MMO's part about whether the Company or the Authority set...
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...but does not require it to do so”. See also, by analogy, R (Great Yarmouth Port Company) v Marine Management Organisation & Anor [2014] EWHC 833 (Admin) [39]–[40]: “The statutory language is that the MMO “may” make an order, and in the ordinary way that means that the MMO has a discretiona......