Factual and Procedural Background
This opinion concerns an application for permission to appeal a decision by Judge Sullivan regarding two separate proposals for the construction of large Liquefied Natural Gas (LNG) terminals at Milford Haven in Pembrokeshire. The applicants sought judicial review of planning permissions and hazardous substances consents granted to two companies, referred to as Company A and Company B, under the Town and Country Planning Act 1990 and the Planning (Hazardous Substances) Act 1990. The initial application was refused by Judge Sullivan on grounds of undue delay, prejudice to the companies, and lack of overriding public interest. The LNG terminal proposals involve two distinct sites approximately six kilometres apart, each under different local authorities' jurisdiction. The claim form challenged multiple planning permissions and hazardous substances consents granted between 2003 and 2004. The claim form was filed on 4 March 2005, with most challenged decisions made more than three months prior, raising issues of promptness and delay under the Civil Procedure Rules (CPR) 54.5.
Legal Issues Presented
- Whether the applicants’ judicial review claim was made promptly and within the statutory time limits under CPR 54.5.
- Whether the procedural requirement of promptness under CPR 54.5(1) conflicts with the principle of legal certainty under European law and the European Convention on Human Rights (ECHR).
- Whether granting permission to seek judicial review would cause substantial prejudice to third parties (Company A and Company B) and be detrimental to good administration.
- Whether the applicants’ Article 2 ECHR right to life and public safety concerns override the procedural bars of delay and prejudice in granting permission to proceed with judicial review.
- The adequacy of risk assessments conducted by statutory bodies regarding the safety implications of the LNG terminal proposals.
Arguments of the Parties
Appellant's Arguments
- The key consents for operation of the terminals are the hazardous substances consents, which justified challenge despite delay in respect of earlier planning permissions.
- The requirement of promptness under CPR 54.5(1) is incompatible with the principle of legal certainty in European law, creating unpredictability in procedural time limits.
- The applicants rely on Article 2 of the ECHR concerning the right to life and argue that this right requires the court to consider public safety issues notwithstanding delay or prejudice.
- The judge below gave inadequate weight to the merits of the public safety claim and the applicants’ concerns that the decision-makers failed to properly assess marine risks associated with the LNG terminals.
- Assessing collision risk alone was insufficient; the consequences of such collisions, including vapour cloud formation and risks to local populations, were not properly evaluated.
- Previous warning letters to planning authorities should have alerted the companies to possible legal challenges, mitigating prejudice claims.
Respondent's Arguments
- The applicants’ delay was undue and not promptly made in accordance with CPR 54.5, justifying refusal of permission to proceed.
- Precedent and statutory provisions support strict enforcement of time limits to protect third parties’ interests and good administration.
- The procedural requirement of promptness does not conflict with European law, as confirmed by the European Court of Human Rights in similar cases.
- The statutory bodies, including the Health and Safety Executive and the Port Authority, carried out comprehensive risk assessments addressing both collision risks and consequences, finding no unacceptable safety risks.
- Prejudice to the companies was substantial due to large financial commitments and advanced contractual arrangements made after the expiry of the judicial review period.
- The judge below correctly exercised discretion balancing delay, prejudice, and public interest, including Article 2 considerations, without error of principle.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Caswell v. Dairy Produce Quota Tribunal for England and Wales [1990] 2 AC 738 |
Delay in judicial review applications constitutes "undue delay" under section 31(6) of the Supreme Court Act 1981 |
Supported refusal of permission due to undue delay and prejudice to third parties |
| R v. Independent Television Commission, ex parte TV Northern Ireland Limited [1996] J.R. 60 |
Requirement of promptness in judicial review applications is independent of the three-month limit; promptness essential to protect third parties |
Reinforced importance of promptitude and finality in public law decisions |
| Burkett v. Secretary of State for the Environment [2002] UKHL 23 |
Obiter comments on uncertainty created by "promptly" requirement and its compatibility with European law |
Considered but ultimately found insufficient to undermine promptness requirement |
| Lam v. United Kingdom (ECtHR Application 41671/98) |
Promptness requirement in judicial review does not violate Article 6 ECHR; procedural rules are proportionate |
Rejected applicants’ argument against promptness requirement, supporting court’s approach |
| Sunday Times v. United Kingdom [1979-80] 2 E.H.R.R. 245 |
Legal certainty requires reasonable foreseeability, but absolute certainty is unattainable; laws may be necessarily vague |
Supported view that promptness requirement is sufficiently certain despite some vagueness |
| R v. Rochdale Metropolitan Borough Council ex parte B, C, and K [2000] Ed CR 117 |
Promptness requirement must be adapted to circumstances; some cases require very rapid challenge |
Used to illustrate varying degrees of required promptness |
| R v. Secretary of State for Foreign Affairs, ex parte World Development Movement Limited [1995] 1 WLR 386 |
Importance of subject matter may justify extension of time or grant of permission despite delay |
Recognized importance of public interest claims but noted such cases are exceptional |
| R v. Inland Revenue Commissioners, ex parte National Federation of Self-Employed Limited [1982] AC 617 |
Leave stage should not involve substantive merits hearing; leave is a screening process |
Supported limited scope of judicial review permission stage |
| R v. Vale of Glamorgan Borough Council, ex parte James [1997] Env. L.R. 195 |
Discretion in judicial review permission decisions will not be disturbed absent error of principle |
Confirmed that the judge’s balancing of delay, prejudice, and public interest was within discretion |
| R v. Warwickshire County Council ex parte Collymore [1995] ELR 217 |
Burden on applicant to show good reason for extension of time in judicial review |
Applied to reinforce strict approach to delay and extensions |
| R v. Monopolies and Mergers Commission, ex parte Argyll Group plc [1986] 1 WLR 763 |
Good public administration requires decisiveness and finality unless compelling reasons exist |
Supported refusal of permission where delay and prejudice outweighed public interest |
Court's Reasoning and Analysis
The court began by affirming the statutory and procedural framework governing judicial review, emphasizing the dual requirements of promptness and a three-month time limit under CPR 54.5. It agreed with the lower court that the applicants’ challenge was not promptly made, as the majority of decisions challenged were made well before the claim form was filed, and even the latest decision was challenged on the last permissible day. The court rejected the argument that the promptness requirement conflicted with European law and the ECHR, relying on established Strasbourg jurisprudence that procedural rules imposing strict time limits are proportionate and serve legitimate public interests such as legal certainty and protection of third parties.
The court examined the prejudice to third parties, noting the significant financial commitments made by the companies after the expiry of the judicial review period, which would be seriously prejudiced by reopening the decisions. Tentative warning letters sent by the applicants were insufficient to negate this prejudice, as they did not constitute clear and prompt notice capable of halting large commercial projects.
Regarding the applicants’ public safety concerns under Article 2 ECHR, the court acknowledged the unqualified nature of the right to life but found no European jurisprudence preventing the application of procedural time limits in such cases. The court accepted that public safety is a material consideration in planning decisions and that the applicants had to show arguable merit to justify extending time. However, at the permission stage, the court is not required to conduct a full merits hearing.
The court reviewed the evidence from statutory bodies responsible for safety assessments, including the Health and Safety Executive and the Port Authority. Both had conducted extensive risk assessments addressing land-based and marine risks, concluding no unacceptable safety risks existed. The Port Authority’s focus on collision risks was appropriate given its statutory remit and the assessments by the Health and Safety Executive covered consequences of LNG escape. The court found no arguable lacuna in these assessments.
Balancing the undue delay, prejudice to third parties, and the merits of the public safety claim, the court concluded the lower court’s refusal of permission was within its discretion and not erroneous. The court found no realistic prospect of success on appeal or of a substantive challenge to the planning decisions or hazardous substances consents.
Holding and Implications
The court REFUSED PERMISSION TO APPEAL, upholding the decision of Judge Sullivan to refuse permission to seek judicial review on grounds of undue delay, prejudice to third parties, and absence of overriding public interest.
The direct effect of this decision is that the planning permissions and hazardous substances consents for the two LNG terminal projects remain valid and unchallenged. The court’s ruling confirms the strict application of procedural time limits in judicial review claims, including those raising serious public safety and human rights concerns under Article 2 ECHR. No new precedent altering the balance between procedural promptness and substantive rights was established; rather, the judgment reinforces established principles protecting legal certainty, finality, and good administration.