Looe Fuels Ltd., R (on the application of) v Looe Harbour Commissioners

A statutory harbour authority may exercise powers fairly regarded as incidental or consequential to its authorised functions, construed sensibly and practically. The more specific the enabling legislation, the less likely it is that significant additional powers were implied. A power to charge for services connected with the shipping of goods does not authorise the authority to buy and resell fuel to vessels as a standalone trading activity. Promoting local trade, or applying trading profits to statutory purposes, is insufficient. The activity must be necessary or incidental to the authority’s main statutory business, namely maintaining and improving the harbour.

Looe Fuels Ltd sought judicial review of a decision by the statutory harbour commissioners to operate a new fuel facility and buy and sell fuel to vessels using Looe Harbour. The proceedings were confined to whether that activity fell within the commissioners’ statutory powers.

The relevant provisions included the 1848 legislation establishing and empowering the commissioners and article 16 of the Looe Harbour Order 1920. The central questions were whether article 16 authorised the activity and, if not, whether the power was necessary or incidental to the commissioners’ statutory functions.

1. Article 16. Article 16 of the Looe Harbour Order 1920 did not authorise the commissioners to buy and resell fuel. The first branch concerned charges for the use of facilities and was inapplicable. The second branch concerned services rendered in connection with the landing, shipping, storage, removal, transport, sale and disposal of goods, animals, fish and things. The words operated in context. “Shipping” meant placing goods and similar things on board a vessel, in contrast with landing them. The standalone supply of fuel to enable vessels to sail was not a service connected with those functions.
2. Implied powers. The principles summarised in Hazell v Hammersmith London Borough Council [1992] 2 AC 1, drawing on Attorney General v Great Eastern Railway Company [1885] 5 AC 473, required the statutory scheme and the authority’s activities to be considered sensibly and practically. Powers fairly regarded as incidental or consequential to authorised functions were not excluded merely because they were not express. However, the more specific the enabling statute, the less likely it was that significant additional powers had been implied.
3. Following Trustees of the Harbour of Dundee v D & J Nicol [1915] AC 550, “incidental” meant incidental to the main purposes of the main business. The commissioners’ main business, identified from the 1848 Act and particularly sections 18 and 33, was maintaining and improving the harbour and associated works. Fuel trading was neither necessary nor incidental to that business. A power to promote local trade could not be inferred from the statutory recital, since the commissioners had no general power to promote the towns’ trade.
4. The fact that trading profits would be applied to statutory purposes did not confer the trading power. The proposed activity was therefore ultra vires. The court declared that buying and selling fuel for vessels was outside the commissioners’ statutory powers. No quashing order was made because the commissioners accepted the decision and would not carry out the unlawful activity. Costs of £17,750 including VAT were summarily assessed.