The Queen (on the application of Humber Oil Terminals Trustee Ltd) (Claimant) Marine Management Organisation (Defendant) Associated British Ports and Another (Interested Parties)

JurisdictionEngland & Wales
JudgeMr Justice King
Judgment Date01 November 2012
Neutral Citation[2012] EWHC 3058 (QB)
CourtQueen's Bench Division
Date01 November 2012
Docket NumberCase No: CO/2386/2011

[2012] EWHC 3058 (QB)




Royal Courts of Justice

Strand, London, WC2A 2LL


The Honourable Mr Justice King

Case No: CO/2386/2011

The Queen (on the application of Humber Oil Terminals Trustee Limited)
Marine Management Organisation
(1) Associated British Ports
(2) Oil and Pipelines Agency
Interested Parties

Mr Timothy Straker QC and Jonathan Moffett (instructed by DLA Piper LLP) for the Claimant

Mr James Maurici and Gwion Lewis (instructed by Browne Jacobson LLP) for the Defendant

Mr Richard Drabble QC for the 1 st Interested Party

Mr Richard Moules for the 2 nd Interested Party

Hearing dates: 6, 7 and 17 October 2011

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Mr Justice King

By this claim for judicial review, the claimant seeks to challenge the decision of the defendant, the Marine Management Organisation, given by letter dated the 23 December 2010, refusing to allow the claimant's application for a Harbour Revision Order ('HRO') to be made under the material provisions of the Harbours Act 1964 (as amended) ('the Act') 'to proceed further'. A draft of the order sought headed 'Immingham (Humber Oil Terminal) Harbour Revision Order 2011' was contained within the application.


The application concerned the Immingham Oil Terminal ('the Terminal') on the Humber Estuary, the major part of which currently falls within the statutory harbour for the Port of Immingham ('the Port') for which the first interested party (ABP) are the statutory harbour authority and the freehold owners of the land making up the Terminal. The Terminal itself principally comprises a jetty, pipelines and an oil terminal. Hitherto the Claimant has been the tenant of the land in question under leases granted by ABP.


The defendant is an executive non departmental body recently established under the Marine and Coastal Access Act 2009 which since April 2010 has exercised the decision making powers and functions of the Secretary of State in relation to harbour orders, these having being delegated to it by the Secretary of State by the Harbours Act 1964 (Delegation of Functions) Order 2010 (SI 2010/674). These functions were previously exercised by the Department for Transport. As will be seen the DfT became involved in this case originally as the prospective decision maker (on 1 October 2009 there was a meeting between the claimant and the department regarding the possibility of seeking an HRO in respect of the Terminal) but latterly was playing a new role as consultee, sending the defendant a letter of objection to the claimant's application, dated 27 September 2010, asserting amongst other things that ' an HRO cannot be used to create a new harbour from within an existing one, by turning a body which is not currently a harbour authority into a harbour authority' and ' there is then the issue of the principle of a forcible takeover of a harbour authority jurisdiction. This being an unusual occurrence to say the least.'


The claimant company is a joint venture company operated by two oil companies, namely Total UK Limited (Total) and ConocoPhillips Limited (CoP) who respectively operate two nearby oil refineries serviced by the Terminal, namely the Lindsay Oil Refinery and the Humber Oil Refinery. The evidence is that the refineries account for 25% of the refining capacity of the United Kingdom and a significant proportion of the country's oil supplies are handled through the facilities of the Terminal. It is part of the claimant's case that the maintenance of supplies to and from the refineries is of critical national importance. Hitherto, for the past 40 years or so, the Terminal has been operated by the claimant, through another joint venture company of the two oil companies, Associated Petroleum Terminals (Immingham) Limited ('APT') exclusively to service these oil refineries by facilitating via the Terminal the transportation of crude oil and fuel/petroleum products to and from the refineries. This has been achieved pursuant to leases, easements and wayleaves granted by ABP and Network Rail to the Claimant.


The application for the Harbour Revision Order was made on the 30 June 2010. The effect of the proposed order would be to bring about a geographical division of the existing Port of Immingham. It would remove the Terminal from the jurisdiction of ABP as harbour authority and establish the claimant as a new harbour authority for the Terminal and associated landside infrastructure, leaving ABP as the harbour authority for the remainder of the Port. As the Decision Letter of the defendant expresses it ' The proposed order seeks to transfer ownership of part of Port of Immingham from (ABP) to (the Claimant)'. The power of the defendant to grant an HRO to this effect is at the centre of the controversy between the parties in these proceedings. There would be important attendant property consequences in that land making up the Terminal, currently owned by ABP, would be compulsorily transferred to and acquired by the claimant.


The second interested party, the Oil and Pipelines Agency (' OPA') is an executive non-departmental body, created by the Oil and Pipelines Act 1985, sponsored by the Ministry of Defence and is responsible as managing agent for the government's pipelines and storage systems, ('GPSS'), a strategic defence asset. Its functions are said to include overseeing all aspects of the operation and maintenance of the GPSS, ensuring that UK military requirements for aviation fuel are met. Its particular interest for present purposes is in the South Killinghome Jetty within the Port although not within the terminal to be the subject of the HRO. This is described by the OPA as the only direct marine access controlled by the Secretary of State for Defence into the GPSS, hence it is an essential means of access for imported oil product and of considerable strategic importance. It is said that the OPA has taken an active part in these proceedings because (to quote its skeleton argument at paragraph 4) ' it is concerned that the (1964 Act) is being used to expropriate part of the Port and that the establishment of multiple harbour authorities for the Port in these circumstances might jeopardise the effective operation of the Jetty'.



The background to the claimant's decision to make such application was the breakdown in negotiations between the claimant and their landlords, ABP, for the terms upon which the leases and wayleaves were to be renewed. This failure to agree terms led to the claimant's leases and pipeline wayleaves coming to an end on 31 December 2009, which in turn led to the commencement of separate and ongoing proceedings under the Landlord and Tenant Act 1954 between the claimant as tenant and ABP as landlord, during which the claimant's leases and wayleaves have been held over by operation of law.


These proceedings were still ongoing as at the date of the hearing before me although by then there had been a judgment by Vos J reported as Humber Oil Terminals Trustee Ltd v Associated British Ports [2011] EWHC 2043(Ch) determining a preliminary issue, in ABP's favour, arising under the defence raised by ABP as landlord under section 30(1)(g) of the 1954 Act, that it intended to occupy the holding ' for a purpose or partly for purposes of a business to be carried on by them'. If this defence were to be successful, the outcome would be that the claimant would be denied a new lease, an outcome not to the liking of the claimant and its parent oil companies not least because the first interested party it seems is minded to occupy and manage the terminal itself with a view both to the maintenance of supply to the refineries and to opening the Oil Jetty to third party users, whereas the Claimant has been anxious to renew the leases and maintain the status quo.


The critical finding of Vos J at paragraph 146 is in these terms:

'(i) ABP intends to occupy the IOT for the purposes or partly purposes of a business to be carried on by it at the IOT;

(ii) ABP intends to occupy the IOT for the purposes or partly for the purposes of a business to be carried on by it at the IOT at the termination of the Lease, whenever that occurs. The most likely circumstances of that occupation involve ABP entering into a commercial arrangement with HOTT (the claimant) whereby HOTT pays ship and cargo dues and APT operates for ABP the cargo facilities at the IOT. But even if that does not occur, it is likely that ABP will occupy the IOT from the termination of the Leases for the purposes of providing port facilities to third party oil companies or traders.'


I should also record the parliamentary intention and policy of the 1954 Act, relating to the renewal of leases, in providing the exception under section 30(1)(g), as found by Vos J. in an analysis with which I agree. Parliament has in effect struck what it regards as a fair balance between the business interests of the tenant and those of the landlord. Thus at paragraph 143, Vos J. puts the matter thus:

'but here Mr Dowding brings the policy of the 1954 Act into play, submitting that the legislation cannot have been intended to allow a landlord to expropriate a tenant's businesses and assets. This is a pejorative way of putting the point. The 1954 Act was indeed enacted … to ' protect the business interests of the tenant in particular as regards his security of tenure' but section 30(1) (g) provides a significant exception to that protection. Tenants are to be allowed security of tenure if they have established themselves in business in leasehold premises so that they can continue to carry on...

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