The challenge brought by the Great Yarmouth Port Authority and Great Yarmouth Port Company was against the decision of the Marine Management Organisatin 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 principal ground of challenge turned on the proper interpretation of those words and also well known principles of judicial review
Mr Justice Cranston held that the MMO had a discretionary power, not a duty, to make a Harbour Revision Order when it was sought. That discretion must be exercised in the public interest and could only be exercised if certain pre-conditions are met, but the MMO had a discretion. The Court held that “ “Securing” connotes something more than simply having an object, something with a goal which is hoped to be achieved” and rejected the Claimants’ argument that “desirability” meant simply something that could be desired, holding that “the statutory intention cannot have been that desirability means simplycapable of being desired, might be desirable, or worth having at some point in the future. It does not follow that something capable of being the object of desire is desirable in fact. The mere fact of the making of an application, and falling within [the section…]), indicates a desire for an order. Quite obviously that is not enough. Desirability [..in the section…] is something more, a judgment about outcome. And it is a judgment to be made in light of the evidence. The statutory requirement is that the MMO be satisfied that the making of the order is desirable, on the evidence, in securing the interests spelt out there. A range of considerations will enter from the evidence into the calculus of desirability. These need to be weighed to reach a conclusion on desirability vis a vis securing the interests set out in [the section]…”
The Claimants had also had a ground of challenge seeking the Marine Management Organisation’s internal legal advice based on Strasbourg case-law. Mr Justice Cranston rightly rejected this argument robustly as “not even arguable”, noting that the Claimants had overlooked both legal professional privilege and how the machinery of government functioned, and applied the judgment of Lord Diplock in Bushell v Secretary of State for the Environment  AC 75.
James Maurici QC and Sasha Blackmore appeared for the Defendant, instructed by Browne Jacobson.