Ryan and Ors v Maritime Area Regulatory Authority and Anor

Factual and Procedural Background

The Applicants, who are fishermen, seek to quash a Maritime Usage Licence granted by the Respondent to Company A for surveys on the Codling Bank. They sought permission to cross-examine Director Evans concerning whether he determined that environmental impact assessment screening was unnecessary. [1][2]

The opinion concerns the Applicants’ motion for liberty to cross-examine Director Evans in the judicial review proceedings. [1]

Legal Issues Presented

1. Whether there was a genuine dispute of fact concerning whether Director Evans, rather than a senior marine advisor, made the decision that environmental impact assessment screening was unnecessary. [2][3][4]
2. Whether the evidential threshold for permitting cross-examination in judicial review proceedings was satisfied. [5][6][7]

Arguments of the Parties

Applicants’ Arguments

• The Applicants argued that the Respondent had failed to determine whether environmental impact assessment screening was necessary and that the relevant conclusion had instead been reached by a senior marine advisor without proper delegated authority. [3][8]
• They contended that Director Evans had not made or communicated any environmental impact assessment screening decision and that the assessment report was prepared by the senior marine advisor. [9]
• They argued that cross-examination was necessary to resolve the alleged conflict over whether Director Evans made the decision or whether it was made improperly by the senior marine advisor. [10][11]
• In reply, they argued that there was no evidence that the senior marine advisor was authorised to reach the relevant conclusion and that references in the licence to the Respondent’s decision were merely recitals rather than part of the operative decision. [12][13]

Respondent’s Arguments

• The Respondent argued that Director Evans verified the statement of opposition, signed the decision under review, had the necessary delegated authority, and determined that environmental impact assessment screening was unnecessary after considering the advisor’s recommendations. [14][15]
• It argued that the Applicants had filed no replying affidavit contradicting Director Evans’s evidence, so the evidence was uncontradicted. [16]
• The Respondent relied on the wording of the decision and its recitals, which stated that the Respondent had considered the relevant criteria and decided that screening was unnecessary. [16][17]
• It contended that the advisor made recommendations and that Director Evans, as the authorised decision-maker, made the ultimate decision. [18]

Table of Precedents Cited

Court’s Reasoning and Analysis

The Court accepted that Director Evans possessed the relevant delegated decision-making authority; the issue was whether he actually made the decision. [21]

The senior marine advisor prepared an assessment report containing conclusions and recommendations. The Court treated that report as expert material rather than the challenged decision itself. Director Evans’s evidence was that he considered the report and made the decision. [22][23]

The decision document stated that the Respondent had considered the relevant statutory criteria and the reports of its analysts and marine advisors. It was signed and executed by Director Evans. [16][24]

The Court found that the recitals stating that the Respondent had decided that environmental impact assessment screening was unnecessary formed part of, or were incorporated into, the decision. [17][13]

The Applicants’ case consisted of assertions that Director Evans had not made the decision. There was no replying affidavit, alternative factual account, or other evidential basis explaining why his positive evidence should be rejected. [23][7]

The Applicants’ complaint concerning alleged delay in making the decision was outside the scope of the cross-examination motion and therefore did not affect its determination. [25]

Applying the principle in Hegarty, the Court concluded that there was no genuine factual conflict requiring resolution through cross-examination. [7]

Holding and Implications

The Applicants’ motion to cross-examine Director Evans was refused. [26]

The immediate consequence was that Director Evans would not be cross-examined in relation to the environmental impact assessment screening decision. The Court stated no broader implications, and the decision set no new precedent. [7][26]