Dart Harbour and Navigation Authority, R (on the application of) v Secretary of State for Transport Local Government and the Regions & Anor

Where legislation creates a statutory review of a harbour authority’s refusal to grant a licence, the reviewing minister may reconsider the merits of reasonableness on the material before him. The test is one of common sense and common justice, not necessarily Wednesbury irrationality.

That jurisdiction extends only to the statutory licence in question. A provision licensing the placing or use of moorings, buoys or similar apparatus does not itself authorise an occupational licence over harbour land. The expression “moorings” concerns apparatus within the harbour and does not ordinarily include shore-based bitts, cleats or posts. The reviewing authority must also determine whether the harbour authority actually refused the relevant licence.

The Dart Harbour and Navigation Authority sought judicial review of the Secretary of State’s decision that it had unreasonably refused Captain Wyatt a licence concerning the mooring of his vessel, Diana Joan, alongside St Peter’s Quay.

The Authority contended that the application was for an occupational licence under section 30 of the Dart Harbour and Navigation Authority Act 1975, not a harbour licence under section 33. It further argued that the apparatus used to secure the vessel was outside the harbour and that the Secretary of State had applied the wrong test of reasonableness. The central issues were the relationship between sections 30 and 33, the location and meaning of “moorings”, the scope of the Secretary of State’s jurisdiction, and the applicable test.

1. The decision was quashed. The Secretary of State had no jurisdiction under section 33(3)(b) to review a refusal of an occupational licence under section 30. The Authority’s powers under sections 30 and 33 were distinct and concurrent. A harbour licence did not dispense with the need for an occupational licence, although the practical absence of such a licence could justify refusing a harbour licence. ([2003] EWHC 1494 (Admin), paras 21–24, 31, 34.)
2. Section 33 concerned the licensing of the placing and use of moorings, buoys and similar apparatus within the harbour. It did not authorise the grant of an occupational right to moor on or over Authority land. The statutory reference to a pre-existing mooring or mooring or berthing area eased the applicant’s position only in relation to the harbour licence. (Dart Harbour and Navigation Authority Act 1975, s 33(3)(b)(ii); paras 22–24.)
3. The Secretary of State was also wrong to conclude that section 33 applied to bitts, cleats and a post outside the harbour merely because ropes from the vessel were attached to them. The words “within the harbour” qualified the apparatus, not merely the verb “use”. In context, “moorings” meant tackle in or above the water within the harbour and did not extend to shore-based securing equipment. (Liverpool & North Wales SS Co Ltd v Mersey Trading Co (1908) 99 LT 863 at 867–868; A-G v Wright [1897] 2 QB 318 at 320–321; paras 25–27.)
4. The word “unreasonably” in section 33(3)(b) did not require the Secretary of State to apply the strict Wednesbury test. The statutory second tier required a straightforward reconsideration of the merits, asking as a matter of common sense and common justice whether the Authority’s decision was just, fair and reasonable. The Secretary of State could not simply substitute his own view, but the Decision was not defective on this ground. (Para 29.)
5. The Secretary of State had jurisdiction to decide both whether a harbour licence had been refused and whether any refusal was unreasonable. He failed to determine the first question. The Authority had dealt only with an application for an occupational licence, so the Decision was quashed on that ground, as well as on the statutory construction and apparatus-location grounds. Further procedural and reasoning defects would independently have justified the remedy. (Paras 30–34.)

First-instance judicial review proceedings. No lower-court decision is stated in the judgment.