CASE OF HARDY AND MAILE v. THE UNITED KINGDOM

Preliminary objection joined to merits (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicants were born in DATE and DATE respectively and live in GPE .

The present application concerns the construction and operation of CARDINAL liquefied natural gas ( “ ORG ” ) terminals on sites at GPE harbour ( “ The GPE ” ) .

The applicants were members of an informal group of residents of GPE opposed to the ORG terminals , called “ GPE ” . GPE was formed in DATE and had CARDINAL members who met regularly . The applicant became involved in GPE from DATE .

Construction and operation of the ORG terminals at GPE requires , inter alia , planning permission granted by the relevant local planning authority ; hazardous substances consent granted by ORG ; compliance with ORG ( “ ORG ” ) Regulations ; compliance with international certification requirements for vessels ; and compliance with byelaws , general directions and FAC . A brief outline of these requirements is set out below . For further details of the relevant domestic law see paragraphs CARDINAL - CARDINAL below .

Planning permission was required for the construction of the ORG terminals , including the jetties and piers , and the use of the land for that purpose . The power of the local planning authorities to grant planning permission for development was subject to Regulations which prohibited the grant of planning permission unless relevant environmental information had been taken into account .

The operation of the ORG terminals also required consent from the appropriate hazardous substances authority . The key role of the hazardous substances authority was to control the presence of hazardous substances on , over or under land .

ORG ( “ ORG ” ) was a statutory consultee in respect of the applications made for hazardous substances consent . This meant that the hazardous substances authority was obliged to consult the ORG and to take account of its representations , but was not bound to follow them . The role of the ORG was to provide advice on the nature and severity of the risks presented by major hazards to people in surrounding areas so that they could be balanced against other material planning considerations .

NORP The ORG terminals remain subject to ORG , which apply mainly to the chemical industry but also to some storage activities , explosives and nuclear sites and other industries where threshold quantities of dangerous substances are kept or used . The purpose of LAW is to reduce the risk of major accidents to a level that is as low as reasonably practicable by imposing on - site safety control .

The ORG and ORG Wales ( “ ORG ” ) monitor compliance with LAW of the ORG operations at GPE .

The marine vessels used to transport ORG to GPE are subject to certification for compliance with international standards . Compliance with those standards is monitored by ORG ( “ ORG ” ) for GPE and GPE , an agency of ORG .

Milford Haven Port Authority ( “ MHPA ” ) has a statutory duty to provide , maintain , operate and improve port and harbour facilities in , or in the vicinity of , the haven . It has the power to make byelaws to regulate the use of the haven and to issue directions for the purpose of promoting or securing conditions conducive to the ease , convenience or safety of navigation in the haven and its approaches .

The Port Marine Safety Code ( “ the LAW ” ) , with which ORG complies , was issued by ORG and the Regions in DATE , and has since been updated . It introduces a national standard for every aspect of port marine safety . It is supplemented by a Guide to Good Practice on ORG dealing with risk assessment and safety management .

In DATE Petroplus , an oil refiner , applied to ORG , the relevant local authority , for planning permission to develop an ORG terminal on a site at GPE harbour ( “ the Dragon terminal ” or “ the Dragon site ” ) . The application was supported by ORG . The planning application was duly advertised and publicised by ORG and ORG and the ORG were consulted . Any member of the public who wished to do so was able to make comments regarding the proposed development .

Chapter CARDINAL of ORG , dated DATE , dealt with operational safety . It noted that marine and navigational safety for the delivery of ORG by marine tankers to the jetty was recognised as an area of concern . Petroplus had therefore commissioned a marine risk assessment and a simulation of the manoeuvring and berthing of a large ORG tanker within the waterway , in conjunction with ORG pilots .

The Statement identified the main risks arising in respect of the handling of ORG as fire and explosion . It noted that guidelines for assessment and tolerability of risks existed but that there was no definitive or prescriptive methodology in GPE . While this could lead to differences in the levels of tolerable risk in GPE compared to other countries , overall levels of risk tolerability were broadly similar across ORG and other safety conscious countries . Work which had been carried out in respect of risk assessment and evaluation included a Hazard Identification to identify major hazards ; a quantitative risk assessment ( “ QRA ” ) in respect of major hazards identified ; and a calculation of levels of individual and societal risk .

The Statement also considered environmental risk from potential incidents . As regards a possible spillage to surface water it noted :

“ ... complete evaporation of the ORG would take place . As ORG and water are immiscible no residue would remain to cause ongoing pollution . The adverse phenomena would be a cooling of the water body local to the spillage as the ORG absorbs heat to evaporate . Given the large volume of water within the GPE waterway it is most unlikely that this cooling would be of significance . ”

In a section on “ ORG and Navigation ” , the Statement noted :

“ Petroplus is involving the ORG in planning of the marine aspects of ORG terminal to ensure that its proposals will meet the ORG ’s requirements for safe navigation and prevention of pollution . The involvement includes :

Consultation in the development of a marine risk assessment for the development ;

Commissioning of real time simulation for the movement of ORG vessels in FAC ;

Arranging for ORG pilots to witness the operation of ORG vessels at a NORP terminal ; and

Further consultation during the design , construction and operational stages of the project . ”

In the context of the real time ship simulation exercise conducted , the Statement clarified that ORG pilots had been able to undertake trial navigation of an ORG vessel , including turning and berthing activities , under a variety of wind , wave and tidal conditions . It concluded that the output from the simulations had confirmed that the large ORG tankers could be safely operated in the GPE waterway under certain restrictions regarding wind conditions set out in the Statement . The ORG pilots who participated in the simulation exercise indicated that they were satisfied with the simulation and made recommendations as to maximum wind speed .

The Statement further noted that a risk assessment had been carried out on the effect of increased traffic in the haven from the introduction of ORG vessels . The findings were set out in some detail in the Statement , which explained that an average of CARDINAL vessel movement took place in the haven DATE and that an increase of CARDINAL movements per year could be expected once the ORG terminal was operational . The Statement concluded that the proposed operations would have little significant impact on the marine traffic environment of the haven .

As to mitigation measures for marine aspects , the Statement noted :

“ As the ORG is responsible for safe marine operations in GPE , mitigating measures would include :

Continuing consultation of ORG during the design , construction and operational stages of the project ;

Implementing further simulation exercises to assess additional aspects , such as strong wind conditions in the approach channel , emergency situations , failures and aborts ;

Implementing simulation training for all ORG pilots who will handle ORG vessels prior to commencement of vessel operations ;

Application of conservative operational requirements , under specified wind conditions initially ; with modification when the pilots become more experiences with the ORG vessels ;

Installation of wind monitoring facilities on the Petroplus berth . ”

In its conclusions and management recommendations , the Statement summarised the impact of the proposed development on a wide variety of aspects including ecology and nature conservation , transport , social and economic issues , tourism and recreation , air quality and noise . On the safety aspects of the development , the Statement concluded that the level of risk presented by the ORG terminal was tolerable and observed that the operation of the terminal would be subject to ongoing inspection and audit by the ORG .

On DATE ORG submitted its views to ORG . It noted that :

“ As a ORG , we have a duty to assess anticipated building works in the waterway in respect of their impact upon navigation , and also of course have a responsibility for maintaining and regulating the use of the waterway in a safe and effective manner . ”

MHPA indicated that its marine department had been working closely with marine advisers to Petroplus to assess the feasibility of ORG vessels transiting the port area and berthing at the proposed jetties with suitable modifications . This assessment had included periods using the ORG simulator , based in the GPE , where a variety of different situations including different ways of approaching the berth , various sizes of ships and different weather and tidal conditions were all able to be trialled . The conclusion was that the identified and agreed means of navigation and operation “ more than adequately ” contained the risks associated with handling such vessels . ORG also pointed to the benefit to the marine service community of the increase in traffic which would result from the development and the diversification into new sectors of activity . In short , ORG was :

“ ... supportive of [ the ] proposed development and have no concerns regarding safety or navigation in this respect ” .

On DATE ORG granted planning permission for an ORG terminal at the Dragon site .

On DATE , an application was made by Petroplus to extend the ORG terminal at the Dragon site . Again , ORG advertised and publicised the planning application and consulted various statutory consultees , including the ORG and ORG .

A further Environmental Statement , dated DATE , was prepared to consider the implications of the extension . It appears to have been a revised version of the original Statement . In the section on “ operational safety ” , the report addressed the potential increase in risk to safety which would arise from the increase in the stored quantity and throughput of ORG at the site . It noted that a revised safety report would be required under LAW to examine the hazards , risks and potential consequences of a major accident , to complement the report which had been accepted by the ORG for the existing installation . It further noted that a new risk assessment had been undertaken to consider the cumulative risk from the approved scheme together with the additional tank and regasification facilities , as well as ongoing operations .

The Statement noted that current movements per year at the Petroplus berths were in the region of CARDINAL , and that there were around QUANTITY ferry movements . When the increase in movements was considered in the context of these statistics as well as the statistics for movements in the haven as a whole , it was clear that the increased traffic would have little significant impact on the marine traffic of the waterway .

The Statement concluded that the risks posed by the extended ORG terminal remained acceptable , observing that the expansion of the terminal would be subject to further scrutiny by the ORG under LAW .

A report prepared by the ORG for consideration on DATE demonstrated some initial examination of the modalities and consequences of a major release from a delivery ship whilst moored at the jetty . The relevant section concluded :

“ It is clear that such plumes , centred on the jetty , are capable of engulfing the densely populated developments of GPE ( town ) , PERSON or FAC . But without FAC on the frequency to be assigned to the release , an ignition probability analysis can not be undertaken to determine the significance in risk terms ...

The paper has included some consideration of releases from delivery ships whilst moored at the jetty , but the analyses are incomplete due to shortage of data . A complete methodology could be developed over time . ”

The application , together with ORG and responses to the consultation , was considered at ORG Planning and Rights of ORG meeting on DATE . The minutes noted that the ORG had not advised against the granting of permission for the extension on safety grounds . They also recorded that ORG strongly supported the proposal and was confident that the port had the capacity to handle the extra shipping traffic and that there would be no negative impacts on the satisfactory risk assessment already undertaken .

On DATE Petroplus made a further planning application , accompanied by an Environmental Statement , dated DATE , for amendments to the approved ORG terminal . The application was again publicised and was the subject of consultation .

On DATE planning permission was granted for an extension at the Dragon site and for the amended scheme .

In the meantime , on DATE , Petroplus applied for hazardous substances consent for the storage of ORG . ORG consulted the ORG and ORG and publicised the planning application .

A report dated DATE by ORG recorded that strong objections to the application had been received from residents of nearby areas calling , in particular , for “ all health and safety information concerning the proposed GPE LNG Terminals [ to be ] made publicly available and openly debated before any further consents are given to build ” . It also noted that the ORG had confirmed that its statutory obligation was complete when all shore - based activities had been assessed and had been taken into account . Such activities , in the present case , would include the transfer of ORG from the ship to the shore and storage and regasification of the ORG . They would not , however , include the risks from ships moored at or approaching the jetty . The assessment of such risks would fall to the ORG and ORG .

The report continued :

“ The ORG has confirmed that as the national maritime administration , it would have responsibility for the safety of ORG tankers , transporting the cargo , whilst inside GPE territorial waters . Although it would continue to have some general responsibility for the vessel when it passed from GPE territorial waters into ORG jurisdiction area , the ORG take the view that primary responsibility passes to the competent harbour authority . The ORG has stated that it would be reasonable to assume that there is some , unspecified increase in ‘ risk’ by virtue of the explosive nature of ORG as a cargo . ORG would be expected to allow the proposed activity to go ahead only where this risk has been reduced to ‘ as low as reasonably practicable’ . The mitigating actions initiated by ORG would then be reflected in the ORG ’s safety management system which they are required to have in place through FAC . The ORG have a range of responsibilities for various ‘ operational’ aspects of the code including a general monitoring role for compliance with the LAW by ORG . ”

MHPA ’s submissions were recorded in the report as follows :

“ ORG has confirmed its jurisdiction including responsibilities ( and powers ) to regulate the use of the GPE and the overarching views of the ORG on a GPE basis ... The ORG ’s role in regard to ORG ships specifically would be that of ORG looking into the condition and standard of shipboard operations of the vessels from a safety standpoint . ORG has confirmed that its marine personnel , including pilots , have participated in risk assessments with teams from both proposed terminals facilitated by independent risk consultants . The ORG state that the outcome has been to confirm that GPE has the capability of handling these vessels safely . ORG has also confirmed that the security issue addressed through FAC which sets out detailed security requirements for ships and port facilities based on risk assessments to determine the level of risk and the measures necessary to meet that risk . Port facilities including Petroplus have been required to produce a security plan before operations start and this plan has been and will continue to be approved by ORG as ORG body responsible for security . ”

The report recommended that the application be approved .

On DATE ORG approved the application for hazardous substances consent in respect of the Dragon Site .

On DATE GPE Petroleum and ORG applied for planning permission to develop an ORG terminal at another site at GPE harbour ( “ the LOC terminal ” or “ the LOC site ” ) . Unlike the Dragon terminal , the LOC site fell within the authority of both ORG and ORG and an application was accordingly made to both bodies . In DATE , the operators of the site opened a public exhibition and visitors’ centre in the town centre of GPE regarding the proposed development . The ORG and ORG were , among others , consulted on the application . It was also advertised and publicised to allow members of the public to submit any views on the proposed development .

GPE Petroleum and ORG instructed ORG in respect of the proposed development . A draft dated DATE has been provided to ORG . It noted that the ORG industry had an excellent safety record and that the ORG transport and distribution industry in GPE had not experienced a major accident in a history of DATE . A qualified risk assessment was also commissioned by the developers which identified potential hazards in respect of the ORG terminal .

Chapter CARDINAL of the Statement dealt with major hazards . It was noted at the outset that the discussion of the hazards was general , but that a detailed and specific safety report was being prepared .

The Statement summarised the basic obligations arising under LAW , noting :

“ Operators of sites that come under ORG have a general duty to take all measures necessary to prevent major accidents and limit their consequences to persons and the environment ... These sites are classified primarily according to inventory of hazardous substances , with CARDINAL being classified as ‘ lower tier’ , where operators must prepare a Major Accident Prevention Policy ( MAPP ) . CARDINAL sites , with larger inventories of dangerous substances , are classified as ‘ top ORG and are subject to additional requirements . These include submitting ORG to the CA [ competent authority – in this case the ORG and the ORG ] , preparing and testing a site emergency plan , and providing information to local authorities to enable off - site emergency plans to be developed . The proposed installation will be top tier . ”

As to assessment of risks , the Statement explained :

“ The COMAH Regulations govern land based industrial hazards . Under these , the proposed terminal will include the jetty , to the point where the loading arms connect to a berthed ORG carrier . The jetty comes within the jurisdiction of ORG , which has responsibility for marine navigational safety and loss prevention issues within QUANTITY GPE . The close contact between the project and local expertise was recently manifested in a formal , DATE marine hazard identification exercise . Attendees included representatives of ORG , pilots and tug masters , as well as master mariners from the project . Potential mitigation measures were identified in this exercise and are being evaluated for incorporation into the design ... ”

It summarised the identified hazards . Most pertained to the on - site activities but CARDINAL hazards were identified which would have an impact beyond the site itself . The first was the possibility of a vapour cloud with delayed ignition . Safeguards proposed related to the design of the containment tanks , an emergency shut down system to limit release and gas detention to identify leaks . The second was a ship collision at the jetty . Safeguards included emergency release coupling to allow the ship to depart quickly , an emergency shut down system and a firefighting system .

DATE . On DATE MHPA responded to the consultation in support of the proposed development , in terms similar to their letter of DATE in respect of the Dragon site ( see paragraphs CARDINAL - CARDINAL above ) .

The minutes of a meeting of ORG Planning and Rights of Way Committee on DATE recorded that the ORG had not advised against the granting of permission for the development on health and safety grounds and that ORG supported the proposed development and had no concerns regarding safety or navigation . CARDINAL letter of objection from a member of the public had been received .

On DATE , planning permission was granted by ORG in respect of ORG .

In the meantime , on DATE , GPE Petroleum and ORG applied to ORG and ORG for hazardous substances consent for the storage and gasification of ORG at the LOC site . The application was publicised and the ORG and ORG were consulted .

On DATE the ORG provided observations in respect of the application for hazardous substances consent at the LOC terminal . It noted that :

“ Our specialist team has assessed the risks to the surrounding areas from the activities likely to result if these PERSON are granted . Only the risks from the hazardous substance for which the LAW is being sought have been assessed , together with the risk from these same substances in vehicles that are being loaded or unloaded ... ”

On DATE , the Chief Executive of ORG wrote to ORG with responses to questions asked . He observed that it was necessary to ensure that large ORG ships were managed in such a way that they were safely and effectively accommodated . He indicated that ORG ’s approach to accommodating the ORG vessels was by detailed risk assessment , taking into account the characteristics of the ships and the terminal to be used and making use of simulators and their own pilots and technical teams working with those of the project proposers , together with a wide range of specialist consultants , to determine the requirements to meet this objective . The result would take into account , for example , the number of tugs required for a movement ; the number of pilots ; whether tugs should be escorting the vessel ; the limits on any weather conditions to allow a movement to take place ; and the timing of any movement related to tidal conditions . He explained that ORG did not intend to close the port while an ORG ship entered or left as it was not necessary and did not improve the situation . He continued :

“ ... What we will probably be seeking to do ( and I say probably because we are still very much involved in the risk assessment of a wide variety of scenarios ) is that there will be a restriction on vessels being within a given distance of an ORG ship when transiting the GPE ...

I also understand that some questions have been raised about the distance at which other vessels will be allowed to pass an ORG ship at the LOC , given that this stretches some way into the GPE and that the main shipping channel in this vicinity is used by all other commercial ships being that their berths are further upriver . Again , we are researching this , testing on the simulators and undertaking risk assessments , but it is likely that we will be looking to undertake some dredging to widen the shipping channel to the LOC so that some vessels , including the ferry , will be able to pass the LOC with an ORG ship alongside at a further distance than would be the case otherwise . We are also looking at other ways of controlling shipping passing LOC in such circumstances which could include criteria of speed , tugs in attendance , maybe even a ‘ guard’ tug in the vicinity of the ORG ship and restricting any movements to CARDINAL vessel at a time , certain weather conditions etc ”

On DATE , the ORG newspaper published a question and answer article with ORG regarding the ORG terminal . Relevant extracts are quoted below :

“ Could ORG explode if there was a collision at sea or in the GPE ? Or could it explode for any other reason ?

The South Hook sponsors have been working closely with organisations such as ORG to ensure that the possibility of a shipping incident is extremely low . Vessels are also designed to withstand significant impact . If an ORG release were to occur from a shipping incident , and if it were ignited , then the effect would be localised to the vessel and its immediate surroundings and unlikely to impact the land . The recent ORG assessment examined the consequence of such an incident and found no cause for local concern .

What would happen if there were a spill on sea or on land ?

ORG experts have considered potential spill scenarios and have found no areas of concern . An incident at sea is extremely unlikely , and the current design of ship is aimed at minimising the likelihood of release in the event of collision . ORG has emphasised its ability to safely handle ORG shipping .

Would it not be better if such a terminal was in a more uninhabited area ?

The ORG ’s review has concluded there are no safety reasons to object to the proposed development . Our plans will be subject to a further safety review by the ORG , ORG and ORG under ORG ( ORG ) requirements . We , as operator , will have to demonstrate that all necessary measures have been taken to prevent major accidents . Any issues raised locally relating to safety systems , operating procedures and emergency response plans will have to be fully addressed . ”

On DATE FAC considered the application for hazardous substances consent . Concerns were raised at the meeting regarding a perceived absence of any QRA on tankers and the need to dredge the channel to increase its depth .

On DATE , ORG approved the application for hazardous substances consent in respect of ORG .

Pembrokeshire Coast National Park Authority approved the application on DATE . On DATE , the development planning officer of ORG , in a letter to the ORG , ORG and ORG Emergency Planning Officer , highlighted concerns about the lack of comprehensive structure for assessing the risks of the project , saying :

“ Members however were still extremely concerned about safety issues and are hoping that the ORG process is rigorous and very demanding and addresses all issues .

This concern has arisen partly because of the fact that there does not appear to be one overriding ORG but a number of bodies involved whose responsibility does not overlap – and where the edge of that responsibility may be a bit blurred , and a genuine concern about exactly which body is responsible for what .

The major concern appears to be the possible conflict between ships using the channel whilst an ORG slip is tied up at the jetty . Objectors seem to think that the space available is too narrow and that there is the potential for accidents if the jetty remains where it is ... ”

NORP ORG ’s representatives were also advised of this concern by letter of CARDINAL DATE and were asked to “ ensure that the issue is fully addressed at the time of the ORG submission ” .

As set out above , the ORG played an important role in the planning and hazardous substances consent process and carried out its own assessments of the projects . In this context , it conducted a preliminary examination of potential marine spill scenarios , including the consequences of a major release from a delivery ship while moored at the jetty . However , it ceased work on this aspect of risk before it was concluded as marine risks were found to fall outside its ambit .

On DATE , in a letter to the ORG newspaper , ORG , Chief Executive of the ORG , wrote :

“ Re your report on the gas terminals at GPE : I am happy to make clear that the ORG gave independent advice in the public interest and was not swayed by any external pressure ... The reason the ORG examined the shore side operation but not the risk of an accident at sea is simply because we have no legal competence to assess risks from ships while at sea or under the direction of the ship ’s master . We made this clear to the local authorities and suggested they consult others , including the ORG , to assess these risks prior to any consent being granted . ”

Like the ORG , it can be seen from the above summary of the CARDINAL projects that ORG also participated in the planning process in respect of the ORG terminals .

On DATE the Chief Executive of ORG was asked which body had ultimate responsibility for assessing the risks involved in the movements of ORG tankers in GPE . He replied on DATE , confirming that ;

“ ORG is responsible for the conservancy ( management , regulation , provision of navigation aids and systems etc ) of the FAC . This includes the regulation and management of all shipping movements . We have a statutory responsibility to support all traffic and indeed , in common with all GPE ports , can not forbid a ship to enter ( except in particular circumstances as laid down in appropriate Acts of ORG ) . What we can and do lay down are the conditions under which movements will take place – e.g. time of entry , state of tide , number of pilots , number of tugs etc . ”

On DATE , in a letter to ORG , the LOC of ORG clarified the extent of ORG ’s responsibilities :

“ [ ORG ] has navigational jurisdiction over the FAC ...

This jurisdiction includes responsibilities ( and powers ) to regulate the use of the ORG . Our primary objectives in this regard are to maintain , improve , protect and regulate the navigation and in particular the deep water facilities in the GPE ...

Whilst the ORG have said that the ORG are the GPE competent authority , this is correct inasmuch as they regulate shipping at sea and through legislation . As a competent authority they have an overarching view GPE wide . Indeed , they advise on primary legislation which can affect ORG and may act as auditors for FAC to which this ORG wholeheartedly subscribes . Their role in regard to ORG ships specifically would be that of ORG inspectors looking into the condition and standard of shipboard operations of the vessels from a safety standpoint .

NORP personnel from the [ ORG ] , including pilots , have participated in risk assessments with teams from both proposed terminals facilitated by independent risk consultants . The outcome has been to confirm that GPE has the capability of handling these vessels safely

[ Security ] is addressed through LOC and FAC ... which sets out detailed security requirements for ships and port facilities based on risk assessments to determine the level of risk and the measures necessary to meet that risk .

Port facilities throughout the GPE including Petroplus have been required to produce a security plan , appoint a security officer , provide additional security equipment , monitor and control access of people , cargo and stores as well as ensuring effective security communications . There will be a similar requirement for the LOC terminal to prepare a security plan before they start operation . ”

On DATE the Chief Executive of ORG responded to a letter from a Member of ORG regarding the ORG terminals as follows :

“ As to the perception that we as a ORG are ‘ reluctant’ to publish risk assessments ... this really flows from a lack of understanding of the role of ORG . Unlike applications for the shore terminals where the process that is undertaken is very clearly defined and results on a go / no - go decision , our role as a ORG is different . We do not have the ability to deny access to any ship ( other than in very specific and individual circumstances ) given that the GPE operates what can be loosely termed an ‘ open ports policy’ . What we do have is a responsibility to ensure that any shipping movements are managed in a safe and efficient manner . To this end we have undertaken , and continue to undertake , a wide range of risk assessments to determine the way in which this safe and effective management will be carried out . There is therefore no one single document or set of documents that clearly define the situation in which a ‘ go / no - go LOC can be determined , but rather a continuing process of scenario setting , risk assessment , trial , refining scenarios and identification of mitigation and prevention measures in which a wide number of variables are taken into account – some of which are still being developed as decisions as to the type of ships and their characteristics are being defined by the terminal operators and their teams . ”

In a report dated DATE ORG Register Risk Assessment Services , on the instructions of ORG , examined and summarised high level statistics for worldwide accidents involving ships . Experience of a fire or explosion on board a ship large enough potentially to injure people nearby was “ as likely per year as being struck by lightning ” . The report observed that the likelihood of an ORG incident was extremely low and that there had never been a recorded incident of a major release of ORG from a ship to external atmosphere and no member of the public had ever been injured by ORG from a ship . The authors explained that the report carried a moderate level of error in light of the high level statistics used and concluded that more detailed research could be carried out to address the specific risks at GPE .

DATE . In a paper of CARDINAL DATE , the Chief Executive of ORG summarised the position regarding the ORG terminals . On the matter of risk assessments , the paper noted :

“ CARDINAL of the concerns constantly banded about by GPE ... is the lack of quantified risk assessment . This is a fallacy either through genuine misunderstanding or a deliberate refusal to accept what has been told .

We have undertaken a significant amount of risk assessment both ourselves with the terminal operators , their advisers and making use of specialist third parties . The terminal developers themselves have also undertaken quantified risk assessment some of which related to shipping movements and we have made use of these in our own processes .

To assist us in this we recently commissioned a report from ORG looking specifically at the risk of incidents in GPE large enough to potentially injure people nearby .

Their conclusion was that there is as much risk of being struck by lightning as there is of being injured by any explosion including fire from ORG in the GPE ... ”

On DATE a journalist contacted ORG asking what risk assessments it had undertaken in relation to plans to import ORG to the South Hook and PERSON sites , with specific regard to the marine - based risk . In an email response dated DATE , the Chief Executive of ORG indicated that a number of risk assessments had been undertaken as part of the process of determining the way in which ORG ships would be managed . He referred to the commissioning of “ studies and reports from experts and consultants ” . He indicated that , as a port , the ORG had a statutory duty to facilitate and support any use of the waterway , noting :

“ ... as a port authority we have no say in the selection of the sites , our responsibility is managing the ships that will visit the sites chosen . ”

Accordingly , he explained , the studies were not designed to determine whether ORG would handle ORG ships , but rather how it would handle them .

In its summary grounds lodged with ORG in subsequent judicial review proceedings ( see paragraphs CARDINAL below ) , ORG provided details of the risk assessment work it had carried out . In particular , it stated :

“ The ORG has been and continues to be under LAW to assess safety . It has worked closely with the developers to ensure that what is proposed will be safe and has undertaken a series of robust risk assessments .

In summary , the ORG has been an active participant in the process of risk assessment undertaken by [ the developers ] since DATE . It has undertaken simulation tests and made specific recommendations about navigation and procedures to minimize hazards . The ORG has visited ORG tankers , other ORG and terminals which handle ORG , trained pilots , harbour masters and managers and obtained and commissioned advice from consultants about potential hazards .

The ORG ’s risk assessment has been open in that it has , for example , explained what has been happening in its DATE reports . Moreover , it has taken part in a range of public presentations and responded to any enquiries that it has received from interested members of the public and other stakeholders . ”

The grounds set out , in paragraph CARDINAL , some of the specific risk assessments undertaken , including :

( a ) a marine traffic analysis of vessel movements through the port during a DATE period in DATE by a marine and risk consultant , ORG ;

( b ) a concept risk assessment by ORG , with the participation of ORG , dated DATE identifying hazards , consequences and possible mitigation measures relating to potential use of GPE port for the importation of ORG ;

( c ) a report by ORG GPE ( MARIN ) , dated DATE , on simulations to check the nautical consequences of future CARDINAL ORG carriers ;

( d ) a DATE navigational risk assessment by ORG ;

( e ) NORP MARIN report of CARDINAL DATE on fast time simulations for large ORG ships ;

( f ) a technical report dated DATE by ORG ( ORG , a major classification society , in respect of ORG proposal assessing the marine risk associated with vessel manoeuvres in the channel and around the LOC terminal for discharging cargo from ORG vessels ;

( g ) a report dated DATE by ORG , an international consulting operation experienced in the analysis of shipping collisions , for ORG , dealing with potential damage to ORG tankers due to ship collisions ;

( h ) a report dated DATE from PERSON , international consulting engineers and risk consultants , updating a report on the potential consequences of fires and explosions involving ships carrying petroleum products ( including ORG ) ;

( i ) a DATE report commissioned by ORG from HR PERSON , the former research facility for ORG , dealing with mooring safety and the possibility of disturbance caused to moored vessels ;

( j ) a report by PERSON , senior risk analyst at ORG , commissioned by ORG assessing the risk of explosion and gas release from ORG carriers .

ORG refused to disclose any of these reports citing commercial confidentiality .

The summary grounds further indicated that :

“ CARDINAL . SIGTTO [ see paragraph CARDINAL below ] has worked with [ MHPA ] and confirmed to the best of their knowledge that [ MHPA ] and the terminal operators have done precisely what they would expect to be done in undertaking risk assessments and planning for ORG shipping . ”

This was confirmed by ORG in a letter dated DATE .

DATE . Pursuant to applicable civil procedure rules , a claim for judicial review of a decision must be filed promptly and in any event within DATE of the decision under challenge ( see paragraphs CARDINAL - CARDINAL below ) .

On DATE the applicants filed an application for leave to apply for judicial review in respect of the grants of planning permission and hazardous substances consent for the South Hook and Dragon terminals . They alleged a failure to carry out a comprehensive environmental impact assessment of the project as a whole ; a failure to have regard to the risks arising from marine traffic and to consider alternative locations for the ORG terminals ; and a fundamental misunderstanding as to the characteristics of ORG in the event of an escape .

On DATE ORG ordered that an oral hearing be held to focus primarily on the issue of the delay in lodging the claim for judicial review , the applicants’ reasons for it and the practical implications of the delay for the operators . A DATE oral hearing subsequently took place .

On DATE leave to apply for judicial review was refused on the grounds that the challenge was not made sufficiently promptly ; that there was undue delay ; and that quashing the planning and hazardous substances decisions would substantially prejudice the rights of ORG and Petroplus , would cause them substantial hardship and would be very detrimental to good administration .

Mr Justice PERSON summarised the decisions being challenged in respect of the South Hook site as : ( CARDINAL ) planning permission by ORG on DATE ; ( CARDINAL ) planning permission by ORG on DATE ; ( CARDINAL ) hazardous substances consent by ORG on DATE ; and ( CARDINAL ) hazardous substances consent by ORG on DATE . The decisions being challenged in respect of the Dragon site were : ( CARDINAL ) planning permission by ORG on DATE ; ( CARDINAL ) planning permission by ORG for an extension on DATE ; ( CARDINAL ) planning permission by ORG for an amended scheme on DATE ; and ( CARDINAL ) hazardous substances consent by ORG on DATE .

As to the reason for the delay in applying for judicial review , Mr Justice PERSON rejected the ORG contention that the delay resulted from a “ labyrinthine decision - making process ” . He accepted that there was a mass of material , but considered that this was because the claim form had adopted a “ scatter gun ” approach and sought permission to challenge not merely the decision on DATE in respect of the Dragon site , but also the earlier decisions in respect of that site going back DATE , and the decisions going back DATE in respect of the LOC site . He noted that , in so far as the applicants complained of the absence of a comprehensive environmental impact assessment or its failure to take account of marine risks , the complaints were directed towards the grant of planning permission itself , rather than hazardous substances consent . In relation to both sites , relevant planning permissions had been granted DATE before the judicial review proceedings were brought . PERSON was satisfied that the applicants had known of the relevant decisions they wished to challenge by DATE .

Having concluded that there was no good reason why the DATE deadline for bringing judicial review proceedings had not been respected as regards all of the decisions except the DATE decision and that there was no good reason that the DATE decision was not challenged “ promptly ” as required by the relevant Civil Procedure Rules ( “ ORG ” ) , PERSON went on to consider the extent of any hardship or prejudice to third party rights and detriment to good administration which would be occasioned if permission were nonetheless granted . He concluded that it was clear that the grant of relief to the applicants “ would cause really significant damage in terms of hardship and/or prejudice ” to the rights of the owners and operators of LOC and Dragon terminals . He further considered that it would be detrimental to good administration to allow a challenge to decisions going back DATE .

Finally , PERSON considered whether the public interest required that the application should proceed . In this context , he considered LAW but concluded that the public interest did not merit the granting of permission out of time , noting :

“ CARDINAL . Although much of the claimants’ skeleton argument before me was devoted to the merits of the claim , I have not heard full argument on the substantive issues which are vigorously contested by the defendants and the interested parties . They deny that there was any misunderstanding as to the characteristics of ORG in the event of an escape ....

... It would not be possible to resolve the substantive matters in dispute without examining in considerable detail the decision - making processes that were employed by [ ORG and ORG ] in respect of each of the decisions under challenge . In these circumstances it would not be right to start from the premise that it would not be in the interests of good administration to maintain the decisions because they were unlawful , as on occasions the PERSON submissions appeared to do . ”

The judge commented :

“ DATE . I do not doubt that the issues raised in the claim are of considerable local importance in GPE and the surrounding area . Equally , I do not doubt the genuineness of the claimants’ concerns and that they fairly represent GPE concerns . But it is also fair to say that GPE views are very far from being representative of the views expressed by the very wide range of consultees , including such bodies as ORG and relevant community councils ... ”

The applicants sought permission to appeal the refusal of leave .

The judge ordered that an oral hearing be held to consider whether leave to appeal should be granted . A DATE hearing took place on DATE .

On DATE the applicants indicated their intention , in the event that permission was granted , to apply for a disclosure order seeking disclosure of all the documents referred to in paragraph CARDINAL of ORG ’s summary grounds ( see paragraph CARDINAL above ) and any other documents relevant to the proceedings . The application notice specified that the application was made in order to “ cover the situation should the ORG grant permission to apply for ORG ” . They also applied for a protective costs order in respect of the second applicant , who had at that stage not been granted legal aid .

On DATE Lord Justice PERSON , with whom the other members of ORG agreed , delivered the court ’s judgment . He considered the ORG arguments under LAW and explained :

“ CARDINAL . It is obvious that public safety is potentially an issue of importance and that , if there is evidence that it has been overlooked or not properly considered by the decision - maker , then that may justify permission to seek judicial review . Public safety must be a material consideration in the decision - making process carried out by the hazardous substances authority , irrespective of LAW ... ”

NORP However , he considered that although PERSON had not heard full argument on the substantive issues , he had been alive to LAW and public safety issues which arose in the case . PERSON observed that :

“ CARDINAL . ... ORG is a statutory body required to ensure the safety of waters within its jurisdiction . The evidence before PERSON made it clear that ORG was satisfied as to the safety of the terminal proposals , so far as its own sphere of responsibility was concerned , while ORG had advised that it was content so far as the land - based activities were concerned . Both these bodies had advised the decision - makers , ORG and ORG , who were entitled to rely on the specialist advice received from those bodies . ”

Keene LJ accordingly concluded that it was open to PERSON to find that the merits of the applicants’ claim did not outweigh the undue delay and the prejudice which permission to proceed would produce .

Observing that it was “ strictly speaking unnecessary to scrutinise in greater depth ” the planning decisions in light of his findings on delay , PERSON nonetheless addressed briefly the issues raised .

He noted that the essence of the applicants’ case was :

“ ... that the decision - makers did not adequately consider what are called ‘ marine ORG , namely the risks to those in the GPE area from an escape of ORG from a ship . In particular , concern is expressed about the risk of the formation , in the event of such an escape , of a flammable gas cloud . It is stressed that a population of CARDINAL lies within a radius of QUANTITY of LOC and PERSON sites ... ”

However , PERSON disagreed that the risk assessment had been inadequate . He considered that the risk of collision “ was undoubtedly dealt with by the ORG ” , as counsel for the applicants conceded during the hearing . He pointed out that ORG had advised both bodies responsible for granting planning permission and consents that it had the “ capability of handling these vessels safely ” . As to counsel for the applicants’ argument that an assessment of the risk of collision was insufficient and that there was a lacuna because of the absence of any assessment of the consequences for the local population of a vapour cloud , PERSON concluded :

“ CARDINAL . I do not accept that the evidence before us , including the evidence submitted on behalf of the applicants since the oral hearing , demonstrates any such arguable lacuna . One has to bear in mind in this connection the very extensive assessments carried out by ORG , because these provide the context for ORG assessment . ORG did assessments which considered both the consequences and the likelihood of an escape of ORG for all landbased and jetty - based activities . Those included the risk of catastrophic failure of an ORG storage tank at the terminal ; the failure of a loading arm at the jetty while ORG was being transferred from ship to shore ; and ‘ major release from a delivery ship while tied up at a jetty’ : see ORG responses to ORG , DATE , and the ORG Summary Grounds of Resistance , paragraphs CARDINAL and CARDINAL . Having carried out these assessments , ORG did not object to the proposal for either terminal on safety grounds . The applicants do not criticise the work done by ORG .

That body made it clear in its response of DATE that it was not responsible for advising on accidents ‘ whilst the ship is not attached to the ORG . But ORG , which is responsible for advising on such accidents , did participate in an assessment process which led to a risk assessment submitted by ORG in DATE ‘ to identify hazards , consequences and possible mitigation measures’ relating to the use of the port as proposed : see ORG Summary Grounds of Resistance , paragraph GPE ) ( emphasis added ) . It refers in those grounds to a number of other reports and exercises carried out , so that it could fulfil its statutory responsibilities for safety . In any event , once ORG had concluded that there were no unacceptable risks to the local population arising from either a catastrophic storage tank failure on land or a major release of ORG from a tanker tied up at a jetty , the crucial element in any assessment of risk from a vessel not moored to the jetty must have been the risk of a collision . The risks to the population from a vapour cloud travelling over land or sea had already been considered by ORG , since the jetties end far out in the GPE . What ORG needed to concentrate on above all else was the risk of a collision , and that it seems to have done . ”

Permission to appeal was refused . In a subsequent discussion of the application for disclosure , PERSON noted that it was related to the prospect of a substantive hearing had permission to bring judicial review proceedings been granted , and that permission had not been granted . Accordingly , no order as to disclosure was made .

Prior to the judgment being handed down , the applicants had been provided with a copy in draft for comment on typographical errors . The applicants’ legal advisers immediately recognised that the judgment contained an error of fact at paragraph CARDINAL , where PERSON had made reference to the ORG assessment of the consequences of a “ major release from a delivery ship while tied up at a jetty ” ( see paragraph CARDINAL above ) . The applicants’ solicitor wrote to the court on DATE advising that no such assessment had in fact been carried out and requested the court to consider the implications of the factual error before confirming its conclusions in the draft judgment . In the event , no change was made to the relevant paragraph of the draft judgment before it was handed down in its final form .

On DATE , the applicants’ solicitor made an application to ORG under LAW CARDINAL to have the judgment of CARDINAL DATE reopened ( see paragraphs CARDINAL - CARDINAL below ) . The application was made on the basis , inter alia , of an obvious factual error . The solicitor noted in the application that although as a matter of routine such applications go back to the original tribunal , he would imagine that the members would recuse themselves in this case .

On DATE Treasury Solicitors on behalf of the ORG advised all parties involved in the proceedings as well as ORG of a mistake in the ORG ’s Summary Grounds . The statement to the effect that the ORG ’s comprehensive risk analysis included risks associated with “ major release from a delivery ship while tied up a jetty ” was incorrect . The correct position was that :

“ Risks that may arise from the presence of other substances , or from the presence of ORG on a delivery ship , either when sailing or when berthed , have not been taken into account in the assessment . ”

On DATE ORG ordered that there should be an oral hearing on the question of permission in the Part CARDINAL proceedings , limited to the question whether the application for permission to appeal should be reopened in light of the information provided by the ORG .

On DATE the applicants’ solicitor requested that the matter go to a freshly constituted ORG and that the scope of the hearing be widened to allow them to canvass all of their complaints concerning the judgment . On DATE ORG declined to vary its order of CARDINAL DATE .

On DATE the matter came before the original ORG . It heard and refused an application that its members recuse themselves . Counsel for the applicants accepted that there was no appearance of bias as a result of the narrow question whether the application for permission to appeal should be opened on the ground that the court was misled by the ORG ’s summary of objections . However , he argued that the court appeared to be acting in a partisan way in circumstances in which it was prepared to reopen the question following receipt of a letter from the ORG Solicitor confirming the true position , whereas it had not been prepared to reopen the matter when the ORG solicitor had made representations as to the issue of fact that was in dispute . PERSON , giving judgment for the court , held :

“ CARDINAL . For my part , I can see no appearance of bias arising from that fact . The positions changed in an important respect when the letter from the ORG Solicitor was received . Until DATE , there was an issue of fact : whether or not the ORG had carried out the tests and risk assessments which they said they had carried out . That issue of fact arose because the applicants asserted that those risk assessments had not been carried out . The ORG , in a summary of grounds – the truth of which was verified by its solicitor DATE asserted that they had been . That question of fact had been determined against the applicants in the judgments which this court handed down on DATE ... It is clear that it was determined against the applicants in reliance on what was said by the ORG in the summary grounds of objection .

In those circumstances , it would have been inappropriate for the court to reopen that question of fact in the period between making its judgments available in draft and the formal handing down of those judgments . The purpose of making the judgments available in draft is not to invite further submissions on questions of fact which have already been decided , but to enable the parties to draw attention to obvious errors of fact , such as a mis - name or a mis - date . Nor would it have been a proper ground for reopening the application for permission to appeal that the claimants , through their solicitors , continued to assert that the court had reached the wrong conclusion of fact on the evidence . But a significant change occurred when it became clear that the court had reached the conclusion of fact which it did as a result of being misled by the ORG though the statement of objections . ”

On DATE , ORG refused permission to reopen the application . PERSON highlighted that the error of fact arose in the context of his discussion of a matter which he had indicated was not strictly necessary in light of his other findings . He nonetheless considered the implications of the factual error identified and concluded that although ORG might well have concentrated on the safety of navigation , it was clear that in light of the work it had done it felt able to advise that it had no concerns regarding safety or navigation in respect of the proposed developments . He concluded that :

“ CARDINAL . ... The significance of the error in terms of public safety has to be seen in context .

That context is that both the ORG and ORG had undoubtedly carried out a number of exercises and studies before advising the planning authorities that there was no objection on safety grounds . The ORG for its part had assessed the consequences of an escape of ORG from a land - based storage tank ; from the failure of a loading arm at the jetty ; and from the guillotine rupture of a QUANTITY pipeline between the jetty and the storage tanks ... Those assessments have not been criticised . It is to be observed that the ORG assessments of the failure of a storage tank on land included that of a catastrophic failure , which would take place at a location not obviously more distant from the areas of population than the proposed jetties . Yet the ORG was satisfied that public safety would not be jeopardised , presumably because of the very low likelihood of such an incident .

ORG for its part had carried out a range of studies referred to in its summary Grounds of Resistance at paragraph CARDINAL . Those were , as one might expect , largely directed towards an assessment of marine risks . They included a report from a Senior Risk Analyst at ORG , commissioned to assess the risk of explosion and gas release from ORG carriers ... There was also evidence before the judge and before this court that there had never been an incident of major release of ORG from a ship to the external atmosphere ...

ORG has statutory responsibilities for safety within the ORG and it advised the decision - makers , ORG and ORG , that there was no such risk to public safety as to warrant refusal of the applications . It was principally for ORG to decide on what research was necessary for it to be so satisfied . It is not for this court or any court to try to second guess the ORG ’s decision on what it needs by way of research in order to advise the decision - makers , unless it is obvious that it has neglected its statutory duties . The evidence falls far short of that . In short , the factual point now seen to be mistaken was of limited significance even on this aspect of the case . Moreover , as PERSON on behalf of ORG submits , that ORG has powers , if at any time it should appear to it that the risks are likely to be greater than presently seem to be the case , to prevent the jetties being used for ORG unloading , and of course the planning authorities also have powers to revoke the consents with which these proceedings are concerned . ”

Having set out the position as regards assessment of marine risk , ORG concluded :

“ But in any event , I come back to the fundamental point , which I indicated earlier , namely that the mistake of fact now relied on by the applicants did not occur in an essential part of this court ’s reasoning when it dismissed this application for permission to appeal . ”

NORP The applicants’ solicitor subsequently wrote to the then Head of ORG asking for advice on what could be done . He replied that a new Part CARDINAL application could be made , which would be considered by a Lord ORG who had not been on the original tribunal . The applicants’ solicitor duly lodged a new Part CARDINAL application .

ORG . Lord Justice Wall considered the application and , concluding that the members of the tribunal had not erred in refusing to recuse themselves , dismissed the application by order of DATE . He concluded that there was no perception or appearance of bias in such a panel revisiting its earlier judgment in light of an identified error of fact . Indeed , in his view , it was manifestly sensible for it to do so .

The applicants sought leave to appeal to ORG the decision of ORG tribunal not to recuse itself . ORG refused leave on CARDINAL DATE on the grounds that it “ discerned no error of law ” .

In or around DATE , the second applicant was advised by ORG that his application for legal aid in the judicial review proceedings had been granted .

On DATE the applicants’ solicitor wrote to ORG requesting access to environmental information . On DATE ORG answered that it did not see any benefit in responding .

On DATE , following the entry into force of ORG ( see paragraphs CARDINAL - CARDINAL below ) , the applicants’ solicitor wrote again to ORG . On DATE , he wrote a third time explicitly under LAW . On DATE , ORG again answered that it did not see any benefit in responding .

On DATE the applicants’ solicitor asked ORG to reconsider its response in accordance with LAW of ORG ( see paragraph CARDINAL below ) . By letter dated DATE , ORG responded that it remained to be convinced that LAW were applicable .

On DATE the solicitor for the applicants wrote to the Information Commissioner asking him to confirm whether ORG was a “ public authority ” for the purposes of ORG .

On DATE a request was made to ORG by members of the public under LAW CARDINAL ( see paragraph CARDINAL below ) to see all formal , documented risk assessments which had informed ORG ’s decision that it could handle ORG vessels safely . ORG replied on DATE that it was not subject to LAW . It indicated that it sought to respond to questions and concerns but that it did not intend to make the large amounts of information obtained through the planning process publicly available as raw data , although the information had been made available to regulatory bodies and agencies .

On DATE the ORG solicitor made a further request to ORG to see copies of risk assessments and reports referred to in their summary grounds of defence lodged in the judicial review proceedings ( see paragraph CARDINAL above ) . He also requested copies of any subsequent marine risk assessments undertaken in respect of the ORG terminals .

On DATE ORG confirmed that ORG did constitute a “ public authority ” for the purposes of LAW . It further advised that ORG could nonetheless continue to refuse to disclose the information sought if it did not constitute “ environmental information ” for the purposes of the regulations , or if any of the exceptions to the disclosure obligation applied ( see paragraphs CARDINAL - CARDINAL below ) .

NORP By letter of DATE ORG replied to the applicants’ solicitor ’s requests for disclosure under LAW . ORG indicated that while it had concluded that it did fall within the ambit of those regulations , it was not required to disclose the risk assessments carried out in respect of the ORG terminals at GPE , on the basis that these constituted operational , and not environmental , information . ORG did , however , provide a copy of an ORG undertaken prior to the widening of the channel opposite the CARDINAL terminals . It also offered to provide such environmental information as could be extracted from operational reports , on the basis that the costs of doing so would have to be met by the applicants . The letter concluded :

“ ... we have gone to great lengths to explain and describe not only the details of what we are doing but why , and the outcomes in terms of the formation of our plans for handling ORG ships . What we have not done is make freely available large volumes of information , as it is our firm belief , that to do so would be irresponsible and confusing for the public . The information needs to be put into context of not only the purposes for which it was obtained , but also the explanations and conclusions drawn from it . We maintain that the best way to do that is through personal contact , presentations and explanations on given courses of action ... ”

On DATE the applicants’ solicitor wrote to ORG asking it to reconsider its decision and challenging the assertion that information pertaining to risk assessment did not constitute “ environmental information ” in terms of regulation CARDINAL of ORG ( see paragraph CARDINAL below ) .

On DATE MHPA responded . It advised that many of the risk assessments undertaken were not instructed in order to advise the planning authorities but in order to assess ORG ’s own operational requirements for handling ORG ships in GPE . However , the assessments subsequently assisted ORG in providing the necessary advice to the planning authorities . ORG offered to extract relevant environmental information for the sum of MONEY . The solicitor for the applicants subsequently asked for information from CARDINAL reports only , namely , a report by PERSON , senior risk analyst at ORG , commissioned by ORG assessing the risk of explosion and gas release from ORG carriers ( “ the PERSON report ” ) ; and ( ii ) relevant extracts containing environmental information of a report entitled “ Qatargas II Project : GPE ” ( “ the PERSON report ” ) . He requested a new quote on that basis .

On DATE the Chief Executive of ORG advised the ORG solicitor that he was unable to disclose any of the material requested as to do so could seriously jeopardise the fairness of the judicial review proceedings . He also relied on the refusal of the companies concerned to consent to the disclosure of material from the reports . In weighing up the public interest test , as required by ORG , he noted that notwithstanding the presumption in favour of disclosure , disclosure was not in the public interest in the present case as the information requested should not be made publicly available without an explanatory context and where it would cause unnecessary confusion or concern . The applicants’ solicitor replied on DATE expressing his disappointment and disputing ORG ’s reliance on the exceptions set out in regulation CARDINAL of ORG ( see paragraphs CARDINAL below ) . He referred the matter to the Information Commissioner .

On DATE the applicants’ solicitor wrote to ORG advising that in light of this ORG ’s findings in GPE v. GPE , no . MONEY , ORG ORG , it would commence judicial review proceedings regarding the failure of ORG to disclose documents unless the information was provided within DATE .

On DATE the Information Commissioner issued LAW under section CARDINAL(CARDINAL ) of LAW CARDINAL ( see paragraph CARDINAL below ) ordering disclosure of the PERSON report and the PERSON report . As regards the public interest test , the notice advised that :

“ In this particular case , the Commissioner believes that there is a very strong public interest in the disclosure of environmental information relating to the development of ORG terminals in GPE . The ORG developments are locally controversial ... Disclosure of environmental information of the type requested in this case could add significantly to public knowledge of the risks posed by the development and better inform public debate .

Furthermore , the Commissioner believes that there is a public interest in ensuring that ORG is undertaking its duties effectively and that it adequately assesses and manages risk within the GPE . In terms of high - profile and potentially hazardous developments such as the ORG terminals , there is a legitimate public interest in demonstrating that public safety has been fully considered by all relevant authorities , including ORG , at each stage of the development process . ”

On DATE ORG appealed the ruling to ORG . However , on DATE it withdrew its appeal and provided redacted copies of ORG and relevant extracts of the PERSON report to the applicants .

While the ORG appeal against the ORG Commissioner ’s ruling was outstanding , the first applicant sought leave to bring judicial review proceedings in respect of ORG ’s continuing refusal to disclose documents related to the risk assessments it claimed to have conducted with regard to the ORG terminals .

On DATE permission was refused following an oral hearing . As regards information falling within ORG , Beatson J referred to the existence of an alternative remedy , namely an application to the Information Commissioner and ORG . To allow judicial review , he said , would be duplication and would risk circumventing the system set out in the Regulations .

In respect of information not falling within those ORG , Beatson J concluded that the applicant had failed to demonstrate an arguable case that there was an obligation to provide the information arising from a positive duty on the authority under LAW and DATE . He noted that ORG had advised the decision - making authorities that the risks were so low as not to warrant the refusal of planning permission or hazardous substances consent and that ORG had , in the earlier judicial review proceedings , found that the authorities were entitled to accept that advice . Accordingly , the activities in question could not be considered “ dangerous ” such as to give rise to an obligation under the ORG to allow the public access to the information . He further considered that insofar as the applicant sought disclosure of assessments required for the previous judicial review proceedings ( see paragraph CARDINAL above ) , the claim was an “ improper use of judicial review ” . He noted that the matter had been before PERSON in the original judicial review proceedings and found that had it been arguable that the applicants were entitled to this information , then the matter would have been dealt with then . He concluded that the application was either out of time or an attempt to reopen a matter which had already been decided .

The applicant sought leave to appeal the ruling . In a judgment dated CARDINAL DATE , ORG dismissed the application . Toulson LJ indicated that while he did not consider that ORG had erred as regards the applicability of LAW and DATE , he would have allowed the applicant to argue the matter before the full court . However , he concluded :

“ CARDINAL . As it seems to me , the plain and obvious purpose [ of the present proceedings ] is to endeavour to elicit material which could have been , and indeed to a point was , asked for in the earlier proceedings , in order to present continuing argument that those previous consents ought not to have been granted . This is exactly the sort of endeavour which the court ought not to support . This appellant has had the opportunity to seek these documents at the time of the earlier proceedings , and it seems to me that the conclusion arrived at by Beatson J was entirely apposite : that this is indeed a reformulation of what was being sought in those proceedings . Those proceedings have already occupied the time of ORG for a lengthy leave hearing , followed by CARDINAL considerations by ORG and it would be wholly wrong that permission should now be granted to bring judicial review in the present form . ”

The applicants submitted to the ORG a copy of an expert report by Dr PERSON dated DATE and prepared in the context of a complaint to ORG in DATE . In his report , PERSON reviewed the approach to and use of risk assessments by ORG . He considered each of the reports referred to in its summary grounds ( see paragraph CARDINAL above ) , noting that the majority of the reports were never released and that CARDINAL of them , ORG reports , looked as though they might be relevant to the kinds of risk assessments that ORG should have carried out .

The report concluded :

“ For most ORG projects , the risks due to spills on the sea are the highest risks involved in such projects , due to the particular difficulties of controlling a spill of ORG on water , the size of the ORG cargo tanks , and the relatively high likelihood of a marine accident compared to a similarly large spill onshore .

In particular , the risks to the onshore population , due to marine operations at GPE , have fallen through a regulatory gap . ORG does not extend to port areas , and the authorities did not elect to use their other powers to evaluate this risk to an equivalent standard ... ”

The applicants also submitted a letter from PERSON dated DATE , following a review of the Government ’s observations in the case . In his letter , PERSON noted :

“ In short , the modular ‘ risk assessment’ that ORG rely on is a risk assessment only in the sense that it is a compendium of separate pieces of work that all touch upon the risks in some way but which have never been pulled together into a clear and convincing analysis concerning the overall degree of risk which the shore populations will have to bear , nor has it been shown that the safeguards that are planned will be sufficient to offset the very large potential consequences of a spill of ORG from a ship ’s cargo tanks into the GPE . ”

Dr PERSON went on to explain the gaps in the risk assessment carried out , including the absence of any identification of locations in the port where a ship might become grounded or be involved in a collision ; the failure to calculate the annual frequency of such incidents ; the failure to evaluate the chance of immediate ignition of an NORP cloud in various scenarios ; the failure to calculate the rate of ORG vapour evolution and cloud size in different conditions and the probability of scenarios where the ORG vapour reached the shoreline ; and the failure to compute the risk to individuals on the shore .

Pursuant to section CARDINAL of ORG DATE ( “ LAW ” ) , planning permission is required for the carrying out of any development of land .

The power of the relevant local planning authorities to grant planning permission for development is subject to the requirements of ORG and GPE ) Regulations DATE ( “ the LAW ” ) . Regulation CARDINAL of LAW prohibits the grant of planning permission unless the planning authority has taken into account the relevant environmental information required when the project comprises environmental impact assessment development .

The EIA Regulations give effect to Council Directive CARDINAL/CARDINAL/EEC on the assessment of the effects of certain public and private projects on the environment , as amended ( “ the EIA Directive ” ) . LAW provides that it applies to the assessment of the environmental effects of public and private projects likely to have significant effects on the environment . Pursuant to Article CARDINAL(CARDINAL ) , member States of ORG are required to adopt all measures necessary to ensure that , before consent is given , projects likely to have significant effects on the environment by virtue , inter alia , of their nature , size or location are made subject to a requirement for development consent and an assessment with regard to their effects . Article CARDINAL ) provides that the environmental impact assessment must identify , describe and assess in an appropriate manner , in the light of each individual case , the direct and indirect effects of a project on human beings , fauna and flora ; soil , water , air , climate and the landscape ; material assets and the cultural heritage ; and the interaction between all these factors .

Article CARDINAL(CARDINAL ) obliges the developer to furnish the authorities with information including a description of the measures envisaged in order to avoid , reduce and , if possible , remedy significant adverse effects ; the data required to identify and assess the main effects which the project is likely to have on the environment ; and an outline of the main alternatives studied by the developer and an indication of the main reasons for his choice , taking into account the environmental effects .

Article CARDINAL provides that member GPE shall ensure that any request for development consent and any information gathered pursuant to LAW are made available to the public within a reasonable time , in order to give them the opportunity to express an opinion before the decision on the request for development consent is taken .

Section CARDINAL of LAW allows a local planning authority to revoke or modify any planning permission that it has granted before the permitted operations have been completed , as it considers expedient . Under LAW of LAW , the Welsh Ministers have the power to direct a local planning authority to revoke or modify a planning permission if they consider it expedient to do so . LAW provides that compensation may be payable where planning permission is revoked or modified under these sections .

Section CARDINAL of LAW empowers the local planning authority to require that any use of the land be discontinued , or to impose conditions on the use of land or require that building works be altered , after the permitted operations have taken place . Pursuant to section ORG of LAW , the Welsh Ministers have the power to make such an order if they consider it expedient to do so . Section CARDINAL provides that compensation may be payable where planning permission is discontinued or made subject to conditions under these sections .

Any decision whether to exercise these powers , either by the local planning authority or by LAW , would in principle be susceptible to judicial review .

In R ( CPRE ) v. GPE of GPE and GPE , leave to apply for judicial review in respect of a decision not to revoke outline planning consent under LAW was granted . The application was subsequently dismissed on its merits but , in obiter dicta , the judge observed that there was substance in the respondents’ submission that the application based on the refusal to revoke was really a back - door attempt to try and achieve what the court had already refused to do , namely to permit a challenge to the validity of previous planning decisions in respect of which leave to apply for judicial review had been refused on grounds of delay .

Section CARDINAL of the Planning ( Hazardous Substances ) Act DATE ( “ LAW ” ) provides that consent is required for the presence of a hazardous substance on , over or under land . As noted above , an application for consent must be made to the appropriate hazardous substances authority . LAW Regulations DATE specify which substances are hazardous substances and the quantity of such substances which require prior consent under LAW .

Section CARDINAL of LAW allows the hazardous substances authority to impose such conditions on the grant of hazardous substances consent as it thinks fit . It may impose general conditions relating to the site and/or specific conditions relating to each substance included in the consent .

Section CARDINAL of the LAW gives the hazardous substances authority the power to vary or revoke a condition to which hazardous substances consent was previously subject . It provides :

“ ( CARDINAL ) This section applies to an application for hazardous substances consent without a condition subject to which a previous hazardous substances consent was granted .

( CARDINAL ) On such an application the hazardous substances authority shall consider only the question of the conditions subject to which hazardous substances consent should be granted .

( CARDINAL ) NORP If on such an application the hazardous substances authority determine–

( a ) that hazardous substances consent should be granted subject to conditions differing from those subject to which the previous consent was granted ; or

( b ) that it should be granted unconditionally ,

they shall grant hazardous substances consent accordingly .

( CARDINAL ) NORP If on such an application the hazardous substances authority determine that hazardous substances consent should be granted subject to the same conditions as those subject to which the previous consent was granted , they shall refuse the application . ”

Section CARDINAL allows the hazardous substances authority to revoke a hazardous substances consent or modify it to such extent as it considers expedient if it appears , having regard to any material consideration , that it is expedient to revoke or modify it .

Such decisions are , in principle , susceptible to judicial review . The Government did not provide details of any case in which judicial review of the exercise of these powers has been sought .

The ORG terminals are subject to LAW as amended by ORG , which implemented ORG CARDINAL/CARDINAL/EC of DATE on the control of major - accident hazards involving dangerous substances ( “ the Seveso II Directive ” ) , as amended .

Regulation CARDINAL of the COMAH Regulations provides for a duty on operators of installations to which the ORG apply to take all measures necessary to prevent major accidents and limit their consequences to persons and the environment .

Pursuant to Regulation CARDINAL , every operator must without delay and within a DATE deadline , prepare and thereafter keep a document setting out its policy with respect to the prevention of major accidents ( “ ORG document ” ) . The policy must be designed to guarantee a high level of protection for persons and the environment by appropriate means , structures and management systems . It must be revised as required by any modification of the installation , the processes carried out or the quantity of hazardous substances present .

In the preparation of the ORG document , a number of principles must be taken into account . The document must be in writing and should identify and evaluate major hazards , which should include an assessment of their likelihood and severity . It should address the organisation of personnel and their roles and responsibilities ; procedures and instructions for safe operation ; and procedures for monitoring , auditing and review . It should also include details of planning for emergencies .

Regulation CARDINAL requires the operator of an installation to send to the competent authority a safety report , within a reasonable time and prior to the start of construction of the installation . The safety report must include , as a minimum , information on the management system and on the organisation of the establishment with a view to major accident prevention ; a presentation of the environment of the establishment , including a description of the site , identification of installations and other activities of the establishment which could present a major accident hazard and a description of areas where a major accident could occur ; a description of the installation , including the main activities which are important from the point of view of safety , sources of major accident risks and conditions under which a major accident could happen , together with a description of proposed preventive measures ; an identification and accidental risks analysis and prevention methods , including a detailed description of the possible major accident scenarios and their probability or the conditions under which they occur including a summary of the events which may play a role in triggering each of these scenarios , the causes being internal or external to the installation and an assessment of the extent and severity of the consequences of identified major accidents ; measures of protection and intervention to limit the consequences of an accident , including a description of the equipment installed in the plant to limit the consequences of major accidents , the organisation of alert and intervention ; and a description of mobilisable resources , internal or external . The report must be reviewed and revised at DATE intervals at least .

Regulation CARDINAL requires operators to prepare an emergency plan . Regulation CARDINAL imposes a similar obligation on local authorities . The emergency plans must provide , inter alia , details of persons responsible for emergency procedures , the foreseeable conditions which could be significant in bringing about a major accident and how these conditions should be controlled and arrangements for limiting risks and providing warnings .

Regulation CARDINAL addresses the provision of information to the public . It provides :

“ ( CARDINAL ) The operator of an establishment shall–

( a ) NORP ensure that persons who are likely to be in an area referred to in paragraph ( CARDINAL ) are supplied , without their having to request it , with information on safety measures at the establishment and on the requisite behaviour in the event of a major accident at the establishment ;

( b ) make that information available to the public . ”

NORP The area to which CARDINAL ) refers is :

“ an area notified to the operator by the competent authority as being an area in which , in the opinion of the competent authority , persons are liable to be affected by a major accident occurring at the establishment . ”

The minimum content of such information includes confirmation that the establishment is subject to the ORG ; an explanation in simple terms of the activities undertaken at the establishment ; general information relating to the nature of the major accident hazards , including their potential effects on the population and the environment ; adequate information on how the population concerned will be warned and kept informed in the event of a major accident ; adequate information on the actions the population concerned should take , and on the behaviour they should adopt , in the event of a major accident ; and details of where further relevant information can be obtained . The emergency plans must be reviewed and modified as required .

Regulation CARDINAL requires the competent authority to prohibit the operation of any installation where the measures taken by the operator for the prevention and mitigation of major accidents are seriously deficient . It allows the competent authority to prohibit the operation of any installation where the operator has failed to submit the safety report within the time stipulated .

GPE is the fourth largest port in GPE . ORG ( “ ORG ” ) is a trust board which was established as an independent statutory body by ORG DATE . Its powers have since been extended by ORG DATE , ORG DATE , ORG DATE and ORG ( “ the DATE Act ” ) .

MHPA has the power to make byelaws to regulate the use of the haven , including the movement of vessels within it and the time , manner and condition in which vessels may enter or leave the haven . ORG issued byelaws in DATE and DATE which apply to the sites on which the ORG terminals are located . Pursuant to the byelaws , LOC MHPA may give directions relating to activities covered by ORG ’s statutory duties . The LOC can therefore regulate the movement , speed and mooring of vessels as well as the loading and unloading of goods . He may take such reasonable steps as he thinks fit where masters of vessels fail to comply with his directions . Further , the byelaws include provisions controlling how vessels are to be navigated and manoeuvred within the haven .

Section DATE Act empowers ORG to give directions for the purpose of promoting or securing conditions conducive to the ease , convenience or safety of navigation in the haven and its approaches . It may give general directions , applicable to all or to a specific class of vessels or , under section CARDINAL of LAW , special directions to a particular vessel . As from DATE , ORG has introduced general directions under LAW which largely reflect the byelaws .

Vessels seeking to enter the haven must confirm that they are in possession of relevant certification before entry is allowed . In the case of vessels transporting ORG , this includes a certificate of fitness for the carriage of liquefied gases in bulk . Vessels carrying dangerous substances are prohibited from entering the haven if visibility falls below a specified level . Further , before such dangerous substances may be handled within a harbour area , the harbour authority must prepare an effective emergency plan and consult with emergency services and any other appropriate body .

The Port Marine Safety Code introduces a national standard for every aspect of port marine safety . ORG took the necessary steps to comply with the DATE . The LAW is based upon the principle that the duties in relation to marine operations in ports are discharged in accordance with the safety management system . The safety management system is informed by , and based upon , a formal risk assessment . The aim is to establish a system covering all marine operations to ensure that the risks of such operations are both tolerable and as low as reasonably practicable , and to identify the means of reducing such risk . Safety management plans include preparations for emergencies , and emergency plans need to be published .

The Code is supplemented by ORG dealing with risk assessment and safety management . The risk assessment typically involves data gathering , familiarisation , hazard identification , risk analysis and assessment of existing measures and risk control . Risk is to be assessed in CARDINAL ways , namely consequences to life , the environment , port authority operations and users .

The Dangerous Substances in GPE DATE cover liquid dangerous substances in bulk . Before such substances can be handled within a harbour area , the harbour authority must prepare an effective emergency plan and consult with the emergency services and any other body it considers appropriate . ORG has prepared an emergency plan and consulted as required . The process of assessment is continuous and changes in the level of risk are identified and addressed .

SIGTTO ( ORG and ORG ) is a non - profit - making company , formed to promote high operating standards and best practices in gas tankers and terminals throughout the world . It provides technical advice and support to its members and represents their collective interests in technical and operational matters . It has published several guidance papers on matters related to ORG .

The paper emphasises in its introduction that the level of marine risk is determined by the position chosen for the ORG terminal . As to jetty location , section CARDINAL of the paper advises that they be placed “ in sheltered locations remote from other port users ” . Section CARDINAL highlights the need for ignition controls extending around and beyond the immediate terminal area .

Section CARDINAL of the paper notes :

“ ... the hazards arising from [ ORG ] , should it escape to atmosphere are : the eventual prospect of a gas cloud , many times the volume associated ORG with an accompanying risk of fire or explosion ...

Release of ORG into the atmosphere of any area having within it low energy ignition agents carries with it a risk of fire or explosion . Such conditions will prevail in any port area where ignition agents are not effectively prohibited , as they are in installations specifically constructed for the handling of hydrocarbons . ”

Section CARDINAL.CARDINAL highlights the risks occasioned upon collision between vessels :

“ ... it is clear , their inherently robust constructions notwithstanding , that ORG tankers are vulnerable to penetration by collisions with heavy displacement ships at all but the most moderate of speeds . Such incidents ought to be treated as credible within any port where heavy displacement ships share an operating environment with ORG tankers . ”

Section CARDINAL of the publication observes :

“ Since there has never been a catastrophic failure of an ORG tanker ’s hull and containment system there are no incident data upon which to construct scenarios following the release of large quantities of ORG into the atmosphere . However the behaviour of released ORG has been carefully studied in the light of certain important experiments involving controlled releases ...

After a release of liquefied gas a cloud will develop and travel horizontally from the spill point under the influence of prevailing winds . The cloud will contain the gaseous components of the ORG ... and air . Mixing with air the cloud will develop flammable properties [ through ] much of its volume ...

As it travels away from the spill point the cloud will warm , becoming progressively less dense . As it warms to ambient temperature it will become buoyant in air and disperse vertically . Pure methane is lighter than air ... but it is the temperature of the entire cloud , not just its gaseous component , [ that ] determines its behaviour . Other components too must warm to higher temperatures before vertical dispersal ensues . Meanwhile the cloud will continue to disperse in a generally horizontal direction , developing a shape similar to an elongated plume .

In practice the geometry and behaviour of a gas cloud will be determined by the specific circumstances of the release . The single biggest determinant will always be the volume of ORG released . Thereafter the shape and behaviour of the cloud will be determined by the rate at which liquid gas is released to the atmosphere . Dispersal in specific incidences will also be greatly influenced by wind conditions , atmospheric stability , ambient temperature and relative humidity . The topography and surface roughness of the terrain over which a cloud moves will greatly influence dispersal characteristics ...

When the gas cloud is no longer fed by fresh volumes of gas it will disperse in the atmosphere until its entire volume is diluted below the lower explosive limit for methane . Its flammable properties will then be extinguished and no further risk will remain . ”

On assessing the cloud behaviour in a specific situation , section CARDINAL provides the following guidance :

“ ... First there must be established a realistic estimate of the maximum credible release , or spill . Second , the released gas cloud is modelled using realistic values for air temperature , wind forces and atmospheric stability at the location in question . From such analysis it is possible to predict with credible accuracy the likely scenario following a worst probable gas release into the atmosphere . ”

Section CARDINAL observes :

“ There has never been an incident involving the penetration or catastrophic failure of an ORG tanker ’s containment system – indeed , the safety record for this class of ship is exemplary . Nevertheless , this safety record notwithstanding , the risk profile of ORG tankers presents a very serious residual hazard in port areas if the vital structure of the tanker is penetrated . ”

Section CARDINAL concludes :

“ Risk exposures entailed in an ORG port project should therefore be analysed by ORG ( QRA ) study . Such a study must involve the operations at the terminal and the transit of tankers through the port .

Risk assessments do not of themselves improve safety , but they should be regarded as decision tools in order to satisfy company safety policy and the Authorities that risk is acceptable . ”

NORP The section specifies that QRA results should yield , as a minimum , a high confidence in there being a low risk of the tanker failing to maintain track during the transit ; a high confidence of the tanker not encountering other vessels in situations that present risks of collision ; no credible scenario leading to a high energy grounding that holds the prospect of the inner hull being penetrated ; and no credible scenario that might lead to the tanker encountering a heavy displacement vessel in situations where the resulting collision impact could be sufficient to penetrate the transiting tanker ’s inner hull .

Section CARDINAL clarifies that :

“ The most important single determinant of risk attached to ORG operations in port areas is the selection of the site for the marine terminal – the location of the tanker berth(s ) . ”

It provides that whatever the prevailing circumstances , no terminal should be sited in a position where it may be approached by heavy displacement ships which have an inherent capability to penetrate the hull of an ORG tanker . It adds that all port traffic must be excluded from the environs of an ORG marine terminal , having regard to the assessment made of the maximum credible spill and likely dispersal of the gas .

Aside from the provisions in the EIA Directive and the COMAH Regulations obliging GPE to ensure that certain information be made available to the public ( see paragraphs CARDINAL and CARDINAL - CARDINAL above ) , a public right of access to environmental information is established by ORG . Regulation CARDINAL sets out a duty to make available environmental information on request :

“ ( CARDINAL ) Subject to ... [ the provisions of LAW ] , a public authority that holds environmental information shall make it available on request .

( CARDINAL ) ORG shall be made available under paragraph ( CARDINAL ) as soon as possible and CARDINAL working days after the date of receipt of the request .

Regulation CARDINAL(CARDINAL ) stipulates that where the information made available is compiled by or on behalf of the public authority , it must be up to date , accurate and comparable , so far as the public authority reasonably believes . Regulation CARDINAL obliges the public authority to provide advice and assistance to applicants , so far as it would be reasonable to expect the authority to do so . LAW allows an applicant to make representations to a public authority in relation to his request for environmental information if it appears to him that the authority has failed to comply with a requirement of these LAW in relation to the request .

Regulation CARDINAL(CARDINAL ) provides that a public authority may refuse to disclose environmental information requested if :

“ ( a ) an exception to disclosure applies under paragraphs ( CARDINAL ) or ( CARDINAL ) ; and

( b ) ”

NORP However , Regulation CARDINAL(CARDINAL ) stipulates that a public authority shall apply a presumption in favour of disclosure .

Regulation CARDINAL(CARDINAL ) provides that a public authority may refuse to disclose information to the extent that , inter alia :

“ ( b ) the request for information is manifestly unreasonable ;

( c ) the request for information is formulated in too general a manner and the public authority has complied with regulation CARDINAL ;

( e ) the request involves the disclosure of internal communications . ”

Regulation CARDINAL(CARDINAL ) provides that a public authority may refuse to disclose information to the extent that its disclosure would adversely affect , inter alia :

“ ( a ) NORP international relations , defence , national security or public safety ;

( e ) the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest ;

( f ) the interests of the person who provided the information where that person–

( i ) was not under , and could not have been put under , any legal obligation to supply it to that or any other public authority ;

( ii ) did not supply it in circumstances such that that or any other public authority is entitled apart from the ORG to disclose it ; and

( iii ) has not consented to its disclosure ; or

( g ) NORP the protection of the environment to which the information relates . ”

Regulation CARDINAL defines “ environmental information ” as having :

“ ... the same meaning as in Article CARDINAL(CARDINAL ) of the [ ORG ] Directive , namely any information in written , visual , aural , electronic or any other material form on–

( a ) the state of the elements of the environment , such as air and atmosphere , water , soil , land , landscape and natural sites including wetlands , coastal and marine areas , biological diversity and its components , including genetically modified organisms , and the interaction among these elements ;

( b ) factors , such as substances , energy , noise , radiation or waste , including radioactive waste , emissions , discharges and other releases into the environment , affecting or likely to affect the elements of the environment referred to in ( a ) ;

( c ) measures ( including administrative measures ) , such as policies , legislation , plans , programmes , environmental agreements , and activities affecting or likely to affect the elements and factors referred to in ( a ) and ( b ) as well as measures or activities designed to protect those elements ;

( d ) reports on the implementation of environmental legislation ;

( e ) cost - benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in ( c ) ; and

( f ) the state of human health and safety , including the contamination of the food chain , where relevant , conditions of human life , cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in ( a ) or , through those elements , by any of the matters referred to in ( b ) and ( c ) . ”

Section CARDINAL of LAW CARDINAL ( “ LAW ” ) allows any person to apply to ORG for a decision as to whether a request for information made to a public authority has been dealt with in accordance with LAW or LAW . The Information Commissioner has powers of enforcement if a public authority does not comply with the terms of decision notice . It is possible to appeal the decisions of the Information Commissioner to ORG and a further appeal to ORG is available on points of law .

Section CARDINAL of ORG provides that ORG may refuse an application for judicial review where there has been undue delay . The relevant subsections provide as follows :

“ ( CARDINAL ) Where ORG considers that there has been undue delay in making an application for judicial review , the court may refuse to grant–

( a ) leave for the making of the application ; or

( b ) any relief sought on the application ,

if it considers that the granting of the relief sought would be likely to cause substantial hardship to , or substantially prejudice the rights of , any person or would be detrimental to good administration .

( CARDINAL ) Subsection ( CARDINAL ) is without prejudice to any enactment or rule of court which has the effect of limiting the time within which an application for judicial review may be made . ”

Rule CARDINAL of ORG sets out specific time limits for filing a claim form in judicial review proceedings :

“ ( CARDINAL ) The claim form must be filed–

( a ) promptly ; and

( b ) in any event not DATE after the grounds to make the claim first arose .

( CARDINAL ) NORP The time limit in this rule may not be extended by agreement between the parties .

( CARDINAL ) This rule does not apply when any other enactment specifies a shorter time limit for making the claim for judicial review . ”

DATE CPR Part CARDINAL permits the re - opening of final appeals in ORG in exceptional circumstances . It provides as follows :

“ ( CARDINAL ) ORG or ORG will not reopen a final determination of any appeal GPE

( a ) it is necessary to do so in order to avoid real injustice ;

( b ) the circumstances are exceptional and make it appropriate to reopen the appeal ; and

( c ) there is no alternative effective remedy .

( CARDINAL ) ... ‘ ORG includes an application for permission to appeal . ”

There is no further appeal from the decision of the judge on the application for permission .