Great Yarmouth Port Company & Anor, R (On the Application Of) v Marine Management Organisation & Anor

Section 14 of the Harbours Act 1964 confers a discretionary power to make a harbour revision order. Even where the statutory objects and application requirements are satisfied, the decision-maker retains a residual discretion which must be exercised rationally and in the public interest.

The decision-maker must be satisfied, on the evidence, that making the order is desirable in the interests specified in section 14(2)(b). That requires an evaluative judgment about the likely outcome. It is not enough that the order is capable of achieving an object in Schedule 2, or that it may be worth having. Relevant benefits and disadvantages may be weighed, but an evidential failure to establish desirability may itself justify refusal.

The claimants sought judicial review of the Marine Management Organisation’s refusal to make a harbour revision order under section 14 of the Harbours Act 1964. The proposed order would have transferred harbour-authority functions for Great Yarmouth from the Great Yarmouth Port Authority to the Great Yarmouth Port Company and reconstituted the Authority.

Following a public inquiry, the Inspector recommended refusal. The MMO accepted that the proposal fell within relevant Schedule 2 objects but concluded that the evidence did not establish that the order was desirable for the efficient and economical improvement, maintenance or management of the harbour. The claimants alleged misdirection, irrationality, failure to consider relevant matters, inadequate reasons and procedural unfairness.

1. The application was refused. The MMO had lawfully concluded that the proposed harbour revision order was not desirable within section 14(2)(b) of the Harbours Act 1964.
2. Section 14(1) uses the word “may” and gives the Minister, and by delegation the MMO, a discretionary power rather than a duty to make an order. The discretion remains after the requirements in section 14(1) and section 14(2) have been met. It must be exercised rationally, with relevant considerations taken into account and irrelevant considerations excluded, and in the public interest.
3. The requirement of desirability in section 14(2)(b) is broader than asking whether the order would achieve a Schedule 2 object. The fact that an order falls within paragraph 1 or paragraph 17 of Schedule 2 does not establish desirability. “Securing” the specified interests requires more than identifying an objective which might contribute to efficient harbour functioning.
4. Desirability is an evidence-based judgment about outcome. The MMO was entitled to consider and weigh the likely benefits, costs and risks. It was also entitled to conclude that the claimed benefits, including reduced confusion, management savings and improved competitiveness, were supported by very little cogent evidence. The absence of sufficient evidence meant that the statutory threshold was not met, making any further balancing exercise academic.
5. The MMO had not ignored the Authority’s support, the Department of Transport’s position, alleged confusion, the Modernising Trust Ports guidance or previous harbour revision orders. The reasoning was adequate when read straightforwardly with the Inspector’s report. Decision-makers need not refer to every material consideration.
6. There was no procedural unfairness. The claimants had the opportunity to address the statutory meaning of desirability, and the Inspector was not required to disclose provisional views or internal legal advice. The principle in Bushell v Secretary of State for the Environment was applicable: departmental legal or policy advice need not be disclosed to inquiry participants.

First-instance judicial review proceedings. The application was refused by the High Court (Administrative Court).