R v Coventry Airport [QBD]
| Jurisdiction | England & Wales |
| Judge | Simon Brown LJ,Popplewell J. |
| Judgment Date | 12 April 1995 |
| Date | 12 April 1995 |
| Court | Queen's Bench Division |
Queen's Bench Division (Divisional Court).
Simon Brown LJ and Popplewell J.
Lord Kingsland QC and Karen McHugh (instructed by Beachcroft Stanleys for Clarke Willmott & Clarke, Taunton) for Phoenix Aviation.
Stuart Isaacs QC, Clive Lewis and Paul Brown (instructed by Sharpe Pritchard for Andrew H Pitts, Coventry) for Coventry City Council.
David Pannick QC and David Anderson (instructed by Mowll & Mowll, Dover) for Dover Harbour Board.
David Vaughan QC, David Lloyd-Jones and Philip Moser (instructed by Cole & Cole, Oxford) for Peter Gilder & Sons.
Richard Gordon QC and Nicholas Green (instructed by Michael J H Bownes, Plymouth) for Plymouth City Council.
Richard Field QC, Nigel Giffin and Nigel Porter (instructed by Reginald V pearce) for Associated British Ports.
Charles Haddon-Cave (instructed by Richard Vidal, National Farmers Union) for the National Farmers Union, intervener.
Nigel Plender QC and Peter Duffy (instructed by Bindman & Partners) for Compassion in World Farming, intervener.
Mr Hockman QC (instructed by R A Crabb, Maidstone) for the Chief Constable of Cent, intervener.
The following cases were referred to in the judgment:
Aiton v StephenELR (1876) 1 App Cas 456.
Almelo (Gemeente) & Ors v Energiebedriff ljsselmij NVECAS (Case C-393/92) [1994] 2 CEC 281; [1994] ECR I-1445.
Apple and Pear Development Council v KJ Lewis LtdECAS (Case 222/82) [1983] ECR 4083.
Associated Provincial Picture Houses Ltd v Wednesbury CorpELR [1948] 1 KB 223.
British Trawlers Federation Ltd v LNERELR [1933] 2 KB 14 (CA); [1934] AC 279 (HL).
Cullet & Anor v Centre Leclerc Toulouse & AnorECAS (Case 231/83) [1985] ECR 305.
Duncan v JonesELR [1936] 1 KB 218.
EC Commission v BelgiumECAS (Case C-80/92) [1994] ECR I-1019.
EC Commission v FranceECAS (Case 42/82) [1983] ECR 1013.
Fairfax (John) Ltd v Australian Postal Commission [1977] 2 NSWLR 124.
Foster v British Gas plcECAS (Case C-188/89) [1991] 2 AC 306.
Garland & Flexman v Wisbech CorpELR [1962] 1 QB 151.
Groenveld (P B) BV v Produktschapvoor Vee en VleesECAS (Case 15/79) [1979] ECR 3409.
Holdijck & Ors, Re (Joined Cases 141-143/81) [1982] ECR 1299.
Jongeneel Kaas, B V & Ors v Netherlands & AnorECAS (Case 237/82) [1984] ECR 483.
Meade v Haringey London Borough CouncilWLR [1979] 1 WLR 637.
Oebel, ReECAS (Case 155/80) [1981] ECR 1993.
Peterhead Towage Services Ltd v Peterhead Bay Authority 1992 SLT 593.
Pigott (J H) & Son v Docks and Inland Waterways ExecutiveELR [1953] 1 QB 338.
Pigs & Bacon Commission v McCarren & Co LtdECAS (Case 177/78) [1979] ECR 2161.
Pigs Marketing Board v RedmondECAS (Case 83/78) [1978] ECR 2347.
Procureur du la Republique, Besancon v Bouhelier & OrsECAS (Case 53/76) [1977] ECR 197.
Procureur du Roi v Dassonville & AnorECAS (Case 8/74) [1974] ECR 837.
R v CairdUNK (1970) 54 Cr App R 499.
R v Chief Constable of Devon and Cornwall, ex parte Central Electricity Generating BoardELR [1982] QB 458.
R v Horseferry Road Magistrates' Court, ex parte BennettELR [1994] 1 AC 42.
R v Immigration Appeal Tribunal, ex parte SinghWLR [1986] 1 WLR 910.
R v. International Stock Exchange of the United Kingdom and Republic of Ireland Ltd, ex parte Else (1982) Ltd & AnorUNK [1993] BCC 11; [1993] QB 534.
R v Metropolitan Police Commissioner, ex parte BlackburnELR [1968] 2 QB 1.18.
R v Ministry of Agriculture, Fisheries & Food, ex parte Jaderow LtdECAS (Case 216/87) [1989] ECR 4509.
R v Royal Pharmaceutical Society of Great BritainUNK [1989] 2 CMLR 751.
R v Somerset County Council, ex parte FewingsWLR [1995] 1 WLR 1037.
R v University of Liverpool, ex parte Caesar-GordonELR [1991] 1 QB 124.
Rewe-Zentral AG v Bundesmonopolverwaltung fur Branntwein (“Cassis de Dijon”)ECAS (Case 120/78) [1979] ECR 649.
Thoresen Car Ferries Ltd v Weymouth Portland Borough CouncilUNK [1977] 2 Ll Rep 614.
Webster v Southwark London Borough CouncilELR [1983] 1 QB 698.
Wheeler v Leicester City CouncilELR [1985] 1 AC 1054.
Judicial review — Public administration of ports and airports — Export of livestock — Public protests disrupted operations at ports and airports — Port and airport authorities refused to accept livestock for export — Whether authorities had discretion to refuse lawful trade — Whether ban on livestock exports contravened EC law — Harbours, Docks and Piers Clauses Act 1847, s. 33; Harbours Act 1964, s. 40(1); Transport Act 1981, s. 9;Civil Aviation Act 1982, S. 78(6). — EC Treaty, art. 90(2).
These were three applications for judicial review. Two were brought by exporters of live animals seeking to compel Coventry Airport and Dover Harbour to accept their trade. The third was brought by Plymouth City Council against its own harbour authority to require it to ban livestock exports.
As a result of public protests at the export of live animals for slaughter considerable disruption occurred at ports and airports through Which livestock were transported. In response to the actual and threatened activities of protesters the public authorities responsible for Coventry Airport and Dover Harbour sought to ban live animal exports.
Livestock exporters, who were permitted to operate two trial flights from Coventry Airport in November 1994, applied for and were granted an interlocutory injunction restraining the council from suspending the flights. The airport authority's application to discharge the injunction was refused. The exporters applied for judicial review of the authority's decision to ban the livestock trade, subject to the court lifting the injunction. Transporters of livestock seeking to export live animals via Dover sought judicial review of the harbour board's refusal to permit a proposed cross-channel service carrying live animals to dock at Dover. The refusal was on disruption and capacity grounds on the basis of a 1992 appropriation, by which the board appropriated the use of the part of the docks for operators of regular cross-channel services. Plymouth City Council, having failed to persuade the city's harbour board that it had a discretion to refuse to allow the port to be used for livestock exports, sought judicial review of the harbour board's refusal to ban the trade.
The applications raised three central questions. First, each port operated under a statutory regime, in the context of which it fell to be determined whether the port authorities had any discretion to refuse to accept the lawful trade of the animal exporters. Secondly, assuming the authorities had a discretion to refuse trade which was within their physical capacity to handle, whether they could properly refuse it in order to avoid the disruptive consequences of threatened illegality. Thirdly, whether a refusal to accept livestock exports contravened EC law.
Held, granting the exporters' applications for judicial review in relation to Coventry Airport and Dover Harbour Board, and refusing the application of Plymouth City Council:
1. The requirement in s. 78(6) of the Civil Aviation Act 1982 that an airport licensed for public use should be “available to all persons on equal terms and conditions” obliged Coventry Airport to accept all lawful trade within its capacity, and precluded it from refusing any given trade. Similarly s. 33 of the Harbours, Docks and Piers Clauses Act 1847 gave a right of access to the docks “to all persons for the shipping and unshipping of goods”. Section 40 of the Harbours Act 1964, which entitled Dover Harbour Board to make the use of the harbour services and facilities subject to terms and conditions they saw lit, could not be invoked inconsistently with the board's overriding duty under s. 33 of the 1847 Act, so as to deny access to those who had a legitimate right to it. Sections 33 of the 1847 Act and 40 of the 1964 Act applied likewise to Plymouth Docks. Further, s. 9 of the Transport Act 1981 imposed on the port authority a non-justiciable duty to provide port facilities, the nature and extent of that provision being within its discretion, but not a discretion to withhold those facilities from particular users so as to destroy their ability to use the port and thereby derogate from their s. 33 rights.
2. All existing or intending operators of a regular cross-channel service at Dover were to be treated equally in accordance with s. 33 of the 1847 Act. The proposed operation of a regular cross-channel service at Dover fell squarely within the 1992 appropriation, required approval by the board of the applicant company by reference to its financial standing and status rather than its service, and accordingly the board was not entitled to refuse approval of the proposed service on the ground of disruption or, on the evidence adduced, incapacity.
3. Port and airport authorities had no general discretion to discriminate between those seeking to use their facilities for the purposes of lawful trade. Even if such a discretion existed, it could not be properly exercised to ban trade in livestock to avoid disruption. Although the authorities were entitled to respond to unlawful threats and might properly vary or suspend services on occasion, they were not justified in surrendering to the dictates of unlawful pressure groups since the rule of law had to prevail.
4. Article 90(2) of the EC Treaty, which applied to Dover Harbour Board as an undertaking entrusted with the operation of services of general economic interest, did not empower the board to refuse to allow the transport of live animals for slaughter through Dover to promote free trade and competition for the vast majority of its customers, but on the contrary stipulated that the board was required to be open to the rules on competition so long as that would not obstruct its operation. It followed that Community law did not entitled the board to bah the livestock trade.
Simon Brown LJ:
The export of live animals for slaughter is lawful. But many think it immoral. They object in particular to the shipment of...
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