Hardy, R (on the application of) v Milford Haven Port Authority & Ors

A renewed application for permission to appeal in judicial review proceedings should be refused where it reformulates issues already raised, or which could and should have been raised, in earlier proceedings. The court will not support collateral proceedings designed to obtain material for a further attempt to reopen planning consents already unsuccessfully challenged. Environmental information should ordinarily be pursued through the applicable regulatory scheme where judicial review would duplicate that process or risk circumventing it. An arguable issue under Articles 2 and 8 does not overcome a separate procedural objection arising from earlier litigation.

The appellant, a Milford Haven resident, sought permission to challenge the Port Authority’s refusal to disclose documents concerning the safety of proposed liquefied natural gas terminals. Beatson J refused permission, holding that environmental information had an alternative statutory route and that the proposed judicial review would be duplicative. He also held that the case concerning non-environmental information lacked an arguable basis and substantially repeated grounds raised, or which should have been raised, in earlier proceedings concerning the planning permissions and hazardous substances consents.

The appellant renewed the application. The central issues were whether Articles 2 and 8 arguably required disclosure and whether the previous proceedings barred a further collateral challenge.

1. Application refused. The request for environmental information had an alternative remedy under the environmental information regulations. Judicial review would duplicate that regulatory process and risk circumventing it.
2. The court was not prepared to refuse permission solely because Beatson J had rejected the argument that Articles 2 and 8 were engaged. Dyson LJ had considered that issue arguable, so it could, in isolation, have been considered by the full court.
3. The decisive objection was procedural. The documents had been sought in the earlier judicial review proceedings, and their materiality to that challenge was accepted. Any free-standing ground for disclosure should have been advanced in those proceedings.
4. Although the earlier proceedings did not conclusively determine the present disclosure issue, the appellant could not reinstate it through collateral proceedings. The present application also sought to rerun arguments that had failed previously.
5. Permission was therefore refused. Order: Application refused.

• Administrative Court, Queen’s Bench Division: Beatson J refused permission for judicial review of the Port Authority’s refusal to disclose safety-related documents.
• Court of Appeal: Earlier challenges concerning the planning permissions and hazardous substances consents had failed, including decisions cited as [2006] EWCA Civ 240 and [2006] EWCA Civ 1008. The renewed application for permission to appeal was refused.