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Marine Management Organisation succeeds in first judicial review

DATE: 01 Nov 2012

The Marine Management Organisation (“MMO”) has successfully defended the first of its decisions to be subject to judicial review since it was established in 2010.

In R (Humber Oil Terminal Trustees Ltd) v Marine Management Organisation (CO/2386/2011), oil interests in the Humber challenged the MMO’s decision not to allow their application for a harbour revision order (“HRO”) for the Port of Immingham to proceed further. The main issue was whether the MMO’s power to make a HRO under section 14 of the Harbours Act 1964 could be exercised so as to allow one harbour authority to be replaced by another, but only in respect of part of a harbour.

King J accepted the MMO’s argument that this would not be lawful. The most relevant provision was paragraph 1 of Schedule 2 to the 1964 Act, which enables a HRO to be made where it has the object of “establishing, as the harbour authority, in lieu of the existing one, an existing body designated in that behalf or a body constituted for the purpose” (emphasis added). King J held:

“73. The natural meaning of these words in my judgment is the wholesale replacement of the existing harbour authority by another in respect of the whole of the harbour (“the” harbour) managed etc.  by that existing authority.  I agree with the submission made by the defendant and the other interested parties that the ordinary meaning of ‘in lieu of’ is ‘instead of’ or ‘in place of’ and that to provide something ‘in lieu of’ of something else is to provide a substitute or alternative for it in its entirety, not merely to replace it in part. [...]”

As the proposed HRO did not achieve the object in paragraph 1, or any of the other objects described in Schedule 2 to the 1964 Act, the judge was satisfied that it had been lawful of the MMO to decide that the application should not proceed further. The judge also rejected the claimant’s other complaints about the fairness of the procedure adopted by the MMO and the adequacy of the reasons given for its decision.

Nevertheless, King J gave the claimant permission to appeal, observing that the proper construction of the statutory objects in Schedule 2 of the 1964 Act raises an issue of general importance that has not yet been considered in detail by the Court of Appeal.

Members of Landmark Chambers featured heavily in this litigation, which was also the first significant environmental judicial review to be heard by the Administrative Court in Leeds. James Maurici and Gwion Lewis acted for the Marine Management Organisation. Richard Drabble QC acted for the First Interested Party, Associated British Ports. Richard Moules acted for the Second Interested Party, the Oil and Pipelines Agency.