Humber Oil Terminals Trustee Ltd., R (on the application of) v Marine Management Organisation

A Harbour Revision Order under section 14 of the Harbours Act 1964 cannot establish a new harbour authority for only part of an existing harbour while leaving the existing authority responsible for the remainder. The phrase “in lieu of the existing one” in paragraph 1 of Schedule 2 means substitution for the existing authority in respect of the harbour as a whole. Paragraph 5 permits transfers between authorities but does not itself establish a new authority, and paragraph 17 cannot be used to circumvent the specific statutory scheme. The statutory mechanism for creating a new authority over part of an existing harbour is a Harbour Empowerment Order under section 16, subject to its additional requirement concerning insufficient powers. The decision-maker may stop an application at the preliminary stage where the proposed order cannot lawfully be made, although fairness will ordinarily require notice and intelligible reasons.

The claimant operated the Immingham Oil Terminal under leases and associated rights from Associated British Ports, the existing harbour authority for the Port of Immingham. Following the breakdown of lease-renewal negotiations, it applied to the Marine Management Organisation for a Harbour Revision Order under section 14 of the Harbours Act 1964.

The proposed order would divide the existing port, transfer the terminal and associated land from ABP, and establish the claimant as harbour authority for that part while ABP remained authority for the rest. The MMO decided that the application should not proceed further because the proposed order fell outside the objects in Schedule 2. The central issues were whether section 14 permitted that partial replacement and whether the MMO could reject the application without an inquiry.

1. The claim was dismissed. The MMO had correctly concluded that the proposed Harbour Revision Order could not lawfully be made under section 14 and Schedule 2 of the Harbours Act 1964.
2. Paragraph 1 of Schedule 2 concerns reconstituting or altering the constitution of the existing harbour authority, or establishing another body as harbour authority in its place. Read naturally, “the harbour” and “in lieu of the existing one” refer to wholesale substitution, not the creation of a new authority for only part of the existing harbour.
3. Paragraph 5 permits the transfer of all or some harbour property and related statutory powers. It does not provide an independent power to establish a new harbour authority. The new authority must first be established under another object, and paragraph 1 does not permit the proposed partial replacement. Similar reasoning applies to paragraph 7.
4. Paragraph 17 is a sweeping-up provision. It must be construed ejusdem generis with paragraphs 1 to 16 and cannot override the limits deliberately imposed by the Schedule. The statutory scheme sensibly reserves the creation of a new authority for part of an existing harbour to a Harbour Empowerment Order under section 16, where the applicant must show that neither it nor another person has sufficient powers to secure the relevant objectives effectively.
5. Paragraph 18(1A)(a) of Schedule 3 necessarily assumes a power to decide that an application is not to proceed further. That power is implied if necessary and is subject to rationality. It may be used where, on the face of the application, the order cannot lawfully be made, so that an inquiry into its merits would serve no purpose.
6. Fairness will ordinarily require prior notice of such a proposed decision and intelligible reasons. However, the absence of notice or fuller reasons could not justify relief here because the claimant suffered no prejudice: no representation could have altered the legal conclusion that the proposed order was outside section 14 and Schedule 2. The court also considered, but did not need to determine, the improper-purpose and alternative-remedy arguments.