CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 14 février 2012

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margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sAB173E38 { margin-top:12pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .s127C7598 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .s81CCF55C { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify } .s48DB3670 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sF8DCB537 { width:16.53pt; display:inline-block } .s30B52FCF { width:208.1pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }     FOURTH SECTION           CASE OF HARDY AND MAILE v. THE UNITED KINGDOM   (Application no. 31965/07)               JUDGMENT     STRASBOURG   14 February 2012     FINAL   09/07/2012     This judgment has become final under Article 44 § 2 (c) of the Convention. It may be subject to editorial revision. In the case of Hardy and Maile v. the United Kingdom , The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Lech Garlicki, President,   David Thór Björgvinsson,   Nicolas Bratza,   George Nicolaou,   Ledi Bianku,   Zdravka Kalaydjieva,   Vincent A. De Gaetano, judges, and Lawrence Early, Section Registrar, Having deliberated in private on 24 January 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 31965/07) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two British nationals, Ms Alison Hardy and Mr Rodney Maile (“the applicants”), on 24   July 2007. 2.     The applicants, one of whom (Ms Hardy) had been granted legal aid, were represented by Mr R. Buxton, a lawyer practising in Cambridge. The United Kingdom Government (“the Government”) were represented by their Agent, Mr J. Grainger, of the Foreign and Commonwealth Office. 3.     The applicants alleged, in particular, that the respondent State had failed in its duties under Articles 2 and 8 of the Convention regarding the regulation of hazardous activities and the dissemination of relevant information. 4.     On 23 October 2009 the Vice-President of the Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 §   1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5 .     The applicants were born in 1946 and 1935 respectively and live in Milford Haven. A.     The background facts 6.     The present application concerns the construction and operation of two liquefied natural gas (“LNG”) terminals on sites at Milford Haven harbour (“The Haven”). 7 .     The applicants were members of an informal group of residents of Milford Haven opposed to the LNG terminals, called “Safe Haven”. Safe Haven was formed in May 2004 and had approximately fifteen members who met regularly. The applicant became involved in Safe Haven from August to October 2004. 1.     Brief outline of the relevant factual and legal framework for the grant of planning permission and hazardous substances consent 8 .     Construction and operation of the LNG terminals at Milford Haven requires, inter alia , planning permission granted by the relevant local planning authority; hazardous substances consent granted by the Hazardous Substances Authority; compliance with the Control of Major Accident Hazards (“COMAH”) Regulations; compliance with international certification requirements for vessels; and compliance with byelaws, general directions and the Port Marine Safety Code. A brief outline of these requirements is set out below. For further details of the relevant domestic law see paragraphs 129-170 below. (a)     Planning permission 9 .     Planning permission was required for the construction of the LNG terminals, including the jetties and piers, and the use of the land for that purpose. The power of the local planning authorities to grant planning permission for development was subject to Regulations which prohibited the grant of planning permission unless relevant environmental information had been taken into account. (b)     Hazardous substances consent 10 .     The operation of the LNG terminals also required consent from the appropriate hazardous substances authority. The key role of the hazardous substances authority was to control the presence of hazardous substances on, over or under land. 11 .     The Health and Safety Executive (“HSE”) was a statutory consultee in respect of the applications made for hazardous substances consent. This meant that the hazardous substances authority was obliged to consult the HSE and to take account of its representations, but was not bound to follow them. The role of the HSE was to provide advice on the nature and severity of the risks presented by major hazards to people in surrounding areas so that they could be balanced against other material planning considerations. (c)     COMAH Regulations 12 .     The LNG terminals remain subject to COMAH Regulations, which apply mainly to the chemical industry but also to some storage activities, explosives and nuclear sites and other industries where threshold quantities of dangerous substances are kept or used. The purpose of the COMAH Regulations is to reduce the risk of major accidents to a level that is as low as reasonably practicable by imposing on-site safety control. 13 .     The HSE and the Environment Agency Wales (“EA”) monitor compliance with the COMAH Regulations of the LNG operations at Milford Haven. (d)     International certification for vessels 14 .     The marine vessels used to transport LNG to Milford Haven are subject to certification for compliance with international standards. Compliance with those standards is monitored by the Maritime and Coastguard Agency (“MCA”) for England and Wales, an agency of the Department of Transport. (e)     Milford Haven Port Authority 15 .     Milford Haven Port Authority (“MHPA”) has a statutory duty to provide, maintain, operate and improve port and harbour facilities in, or in the vicinity of, the haven. It has the power to make byelaws to regulate the use of the haven and to issue directions for the purpose of promoting or securing conditions conducive to the ease, convenience or safety of navigation in the haven and its approaches. 16 .     The Port Marine Safety Code (“the Code”), with which MHPA complies, was issued by the Department of the Environment, Transport and the Regions in March 2000, and has since been updated. It introduces a national standard for every aspect of port marine safety. It is supplemented by a Guide to Good Practice on Port Management Operations dealing with risk assessment and safety management. 2.     The Dragon site (a)     Application for planning permission for the site 17 .     In 2002 Petroplus, an oil refiner, applied to Pembrokeshire County Council, the relevant local authority, for planning permission to develop an LNG terminal on a site at Milford Haven harbour (“the Dragon terminal” or “the Dragon site”). The application was supported by an Environmental Statement. The planning application was duly advertised and publicised by Pembrokeshire County Council and MHPA and the HSE were consulted. Any member of the public who wished to do so was able to make comments regarding the proposed development. 18 .     Chapter 15 of the Environmental Statement, dated September 2002, dealt with operational safety. It noted that marine and navigational safety for the delivery of LNG by marine tankers to the jetty was recognised as an area of concern. Petroplus had therefore commissioned a marine risk assessment and a simulation of the manoeuvring and berthing of a large LNG tanker within the waterway, in conjunction with MHPA pilots. 19 .     The Statement identified the main risks arising in respect of the handling of LNG as fire and explosion. It noted that guidelines for assessment and tolerability of risks existed but that there was no definitive or prescriptive methodology in the United Kingdom. While this could lead to differences in the levels of tolerable risk in the United Kingdom compared to other countries, overall levels of risk tolerability were broadly similar across European Union and other safety conscious countries. Work which had been carried out in respect of risk assessment and evaluation included a Hazard Identification to identify major hazards; a quantitative risk assessment (“QRA”) in respect of major hazards identified; and a calculation of levels of individual and societal risk. 20 .     The Statement also considered environmental risk from potential incidents. As regards a possible spillage to surface water it noted: “... complete evaporation of the LNG would take place. As LNG and water are immiscible no residue would remain to cause ongoing pollution. The adverse phenomena would be a cooling of the water body local to the spillage as the LNG absorbs heat to evaporate. Given the large volume of water within the Milford Haven waterway it is most unlikely that this cooling would be of significance.” 21 .     In a section on “Marine Hazards and Navigation”, the Statement noted: “Petroplus is involving the MHPA in planning of the marine aspects of LNG terminal to ensure that its proposals will meet the Authority’s requirements for safe navigation and prevention of pollution. The involvement includes: Consultation in the development of a marine risk assessment for the development; Commissioning of real time simulation for the movement of LNG vessels in the Haven Waterway; Arranging for MHPA pilots to witness the operation of LNG vessels at a European terminal; and Further consultation during the design, construction and operational stages of the project.” 22 .     In the context of the real time ship simulation exercise conducted, the Statement clarified that MHPA pilots had been able to undertake trial navigation of an LNG vessel, including turning and berthing activities, under a variety of wind, wave and tidal conditions. It concluded that the output from the simulations had confirmed that the large LNG tankers could be safely operated in the Milford Haven waterway under certain restrictions regarding wind conditions set out in the Statement. The MHPA pilots who participated in the simulation exercise indicated that they were satisfied with the simulation and made recommendations as to maximum wind speed. 23 .     The Statement further noted that a risk assessment had been carried out on the effect of increased traffic in the haven from the introduction of LNG vessels. The findings were set out in some detail in the Statement, which explained that an average of 10,700 vessel movement took place in the haven each year and that an increase of between 100 and 240 movements per year could be expected once the LNG terminal was operational. The Statement concluded that the proposed operations would have little significant impact on the marine traffic environment of the haven. 24 .     As to mitigation measures for marine aspects, the Statement noted: “As the MHPA is responsible for safe marine operations in the Haven Waterway, mitigating measures would include: Continuing consultation of MHPA during the design, construction and operational stages of the project; Implementing further simulation exercises to assess additional aspects, such as strong wind conditions in the approach channel, emergency situations, failures and aborts; Implementing simulation training for all MHPA pilots who will handle LNG vessels prior to commencement of vessel operations; Application of conservative operational requirements, under specified wind conditions initially; with modification when the pilots become more experiences with the LNG vessels; Installation of wind monitoring facilities on the Petroplus berth.” 25 .     In its conclusions and management recommendations, the Statement summarised the impact of the proposed development on a wide variety of aspects including ecology and nature conservation, transport, social and economic issues, tourism and recreation, air quality and noise. On the safety aspects of the development, the Statement concluded that the level of risk presented by the LNG terminal was tolerable and observed that the operation of the terminal would be subject to ongoing inspection and audit by the HSE. 26 .     On 21 October 2002 MHPA submitted its views to Pembrokeshire County Council. It noted that: “As a Port Authority, we have a duty to assess anticipated building works in the waterway in respect of their impact upon navigation, and also of course have a responsibility for maintaining and regulating the use of the waterway in a safe and effective manner.” 27 .     MHPA indicated that its marine department had been working closely with marine advisers to Petroplus to assess the feasibility of LNG vessels transiting the port area and berthing at the proposed jetties with suitable modifications. This assessment had included periods using the MARIN simulator, based in the Netherlands, where a variety of different situations including different ways of approaching the berth, various sizes of ships and different weather and tidal conditions were all able to be trialled. The conclusion was that the identified and agreed means of navigation and operation “more than adequately” contained the risks associated with handling such vessels. MHPA also pointed to the benefit to the marine service community of the increase in traffic which would result from the development and the diversification into new sectors of activity. In short, MHPA was: “... supportive of [the] proposed development and have no concerns regarding safety or navigation in this respect”. 28 .     On 19 March 2003 Pembrokeshire County Council granted planning permission for an LNG terminal at the Dragon site. (b)     Application for planning permission for extension 29 .     On 25 April 2003, an application was made by Petroplus to extend the LNG terminal at the Dragon site. Again, Pembrokeshire County Council advertised and publicised the planning application and consulted various statutory consultees, including the HSE and MHPA. 30 .     A further Environmental Statement, dated April 2003, was prepared to consider the implications of the extension. It appears to have been a revised version of the original Statement. In the section on “operational safety”, the report addressed the potential increase in risk to safety which would arise from the increase in the stored quantity and throughput of LNG at the site. It noted that a revised safety report would be required under the COMAH Regulations to examine the hazards, risks and potential consequences of a major accident, to complement the report which had been accepted by the HSE for the existing installation. It further noted that a new risk assessment had been undertaken to consider the cumulative risk from the approved scheme together with the additional tank and regasification facilities, as well as ongoing operations. 31 .     The Statement noted that current movements per year at the Petroplus berths were in the region of 2,000, and that there were around 1,450 ferry movements. When the increase in movements was considered in the context of these statistics as well as the statistics for movements in the haven as a whole, it was clear that the increased traffic would have little significant impact on the marine traffic of the waterway. 32 .     The Statement concluded that the risks posed by the extended LNG terminal remained acceptable, observing that the expansion of the terminal would be subject to further scrutiny by the HSE under the COMAH Regulations. 33 .     A report prepared by the HSE for consideration on 2 September 2003 demonstrated some initial examination of the modalities and consequences of a major release from a delivery ship whilst moored at the jetty. The relevant section concluded: “It is clear that such plumes, centred on the jetty, are capable of engulfing the densely populated developments of Milford Haven (town), Neyland or Pembroke Dock. But without PCAG Guidance on the frequency to be assigned to the release, an ignition probability analysis cannot be undertaken to determine the significance in risk terms ... ... The paper has included some consideration of releases from delivery ships whilst moored at the jetty, but the analyses are incomplete due to shortage of data. A   complete methodology could be developed over time.” 34 .     The application, together with the Environmental Statement and responses to the consultation, was considered at Pembrokeshire County Council’s Planning and Rights of Way Committee meeting on 21 October 2003. The minutes noted that the HSE had not advised against the granting of permission for the extension on safety grounds. They also recorded that MHPA strongly supported the proposal and was confident that the port had the capacity to handle the extra shipping traffic and that there would be no negative impacts on the satisfactory risk assessment already undertaken. 35 .     On 11 February 2004 Petroplus made a further planning application, accompanied by an Environmental Statement, dated January 2004, for amendments to the approved LNG terminal. The application was again publicised and was the subject of consultation. 36 .     On 10 September 2004 planning permission was granted for an extension at the Dragon site and for the amended scheme. (c)     Application for hazardous substances consent 37 .     In the meantime, on 1 March 2004, Petroplus applied for hazardous substances consent for the storage of LNG. Pembrokeshire County Council consulted the HSE and MHPA and publicised the planning application. 38 .     A report dated 12 October 2004 by the Director of Development of Pembrokeshire County Council recorded that strong objections to the application had been received from residents of nearby areas calling, in particular, for “all health and safety information concerning the proposed Milford Haven LNG Terminals [to be] made publicly available and openly debated before any further consents are given to build”. It also noted that the HSE had confirmed that its statutory obligation was complete when all shore-based activities had been assessed and had been taken into account. Such activities, in the present case, would include the transfer of LNG from the ship to the shore and storage and regasification of the LNG. They would not, however, include the risks from ships moored at or approaching the jetty. The assessment of such risks would fall to the Maritime and Coastguard Agency. 39 .     The report continued: “The MCA has confirmed that as the national maritime administration, it would have responsibility for the safety of LNG tankers, transporting the cargo, whilst inside UK territorial waters. Although it would continue to have some general responsibility for the vessel when it passed from UK territorial waters into the Milford Haven Port Authority’s jurisdiction area, the MCA take the view that primary responsibility passes to the competent harbour authority. The MCA has stated that it would be reasonable to assume that there is some, unspecified increase in ‘risk’ by virtue of the explosive nature of LNG as a cargo. The Port Authority would be expected to allow the proposed activity to go ahead only where this risk has been reduced to ‘as low as reasonably practicable’. The mitigating actions initiated by the Port Authority would then be reflected in the Port’s safety management system which they are required to have in place through the Port Maritime Safety Code. The MCA have a range of responsibilities for various ‘operational’ aspects of the code including a general monitoring role for compliance with the Code by Port Authorities.” 40 .     MHPA’s submissions were recorded in the report as follows: “The Port Authority has confirmed its jurisdiction including responsibilities (and powers) to regulate the use of the Haven and the overarching views of the MCA on a UK basis ... The MCA’s role in regard to LNG ships specifically would be that of Port State Control Inspectors looking into the condition and standard of shipboard operations of the vessels from a safety standpoint. The Port Authority has confirmed that its marine personnel, including pilots, have participated in risk assessments with teams from both proposed terminals facilitated by independent risk consultants. The Port Authority state that the outcome has been to confirm that Milford Haven has the capability of handling these vessels safely. The Port Authority has also confirmed that the security issue addressed through the International Ship and Port Facility Security Code which sets out detailed security requirements for ships and port facilities based on risk assessments to determine the level of risk and the measures necessary to meet that risk. Port facilities including Petroplus have been required to produce a security plan before operations start and this plan has been and will continue to be approved by Transec as the UK Government body responsible for security.” 41 .     The report recommended that the application be approved. 42 .     On 7 December 2004 Pembrokeshire County Council approved the application for hazardous substances consent in respect of the Dragon Site. 3.     The South Hook site (a)     Application for planning permission for the site 43 .     On 28 April 2003 Qatar Petroleum and ExxonMobil applied for planning permission to develop an LNG terminal at another site at Milford Haven harbour (“the South Hook terminal” or “the South Hook site”). Unlike the Dragon terminal, the South Hook site fell within the authority of both Pembrokeshire County Council and Pembrokeshire Coast National Park Authority and an application was accordingly made to both bodies. In the same month, the operators of the site opened a public exhibition and visitors’ centre in the town centre of Milford Haven regarding the proposed development. The HSE and MHPA were, among others, consulted on the application. It was also advertised and publicised to allow members of the public to submit any views on the proposed development. 44 .     Qatar Petroleum and ExxonMobil instructed an Environmental Statement in respect of the proposed development. A draft dated April 2003 has been provided to the Court. It noted that the LNG industry had an excellent safety record and that the LNG transport and distribution industry in the United Kingdom had not experienced a major accident in a history of nearly forty years. A qualified risk assessment was also commissioned by the developers which identified potential hazards in respect of the LNG terminal. 45 .     Chapter   14 of the Statement dealt with major hazards. It was noted at the outset that the discussion of the hazards was general, but that a detailed and specific safety report was being prepared. 46 .     The Statement summarised the basic obligations arising under the COMAH Regulations, noting: “Operators of sites that come under COMAH have a general duty to take all measures necessary to prevent major accidents and limit their consequences to persons and the environment ... These sites are classified primarily according to inventory of hazardous substances, with approximately 750 being classified as ‘lower tier’, where operators must prepare a Major Accident Prevention Policy (MAPP). The remaining 350 sites, with larger inventories of dangerous substances, are classified as ‘top tier’ and are subject to additional requirements. These include submitting a Safety Report to the CA [competent authority – in this case the HSE and the EA], preparing and testing a site emergency plan, and providing information to local authorities to enable off-site emergency plans to be developed. The proposed installation will be top tier.” 47 .     As to assessment of risks, the Statement explained: “The COMAH Regulations govern land based industrial hazards. Under these, the proposed terminal will include the jetty, to the point where the loading arms connect to a berthed LNG carrier. The jetty comes within the jurisdiction of the Milford Haven Port Authority, which has responsibility for marine navigational safety and loss prevention issues within the 200 square mile Waterway. The close contact between the project and local expertise was recently manifested in a formal, two-day marine hazard identification exercise. Attendees included representatives of the Port Authority, pilots and tug masters, as well as master mariners from the project. Potential mitigation measures were identified in this exercise and are being evaluated for incorporation into the design ...” 48 .     It summarised the identified hazards. Most pertained to the on-site activities but two hazards were identified which would have an impact beyond the site itself. The first was the possibility of a vapour cloud with delayed ignition. Safeguards proposed related to the design of the containment tanks, an emergency shut down system to limit release and gas detention to identify leaks. The second was a ship collision at the jetty. Safeguards included emergency release coupling to allow the ship to depart quickly, an emergency shut down system and a firefighting system. 49 .     On 15 May 2003 MHPA responded to the consultation in support of the proposed development, in terms similar to their letter of 21 October 2002 in respect of the Dragon site (see paragraphs 26-27 above). 50 .     The minutes of a meeting of Pembrokeshire County Council’s Planning and Rights of Way Committee on 21 October 2003 recorded that the HSE had not advised against the granting of permission for the development on health and safety grounds and that MHPA supported the proposed development and had no concerns regarding safety or navigation. One letter of objection from a member of the public had been received. 51 .     On 12 November 2003, planning permission was granted by Pembrokeshire Coast National Park Authority in respect of the South Hook Site. 52 .     On 18 December 2003, planning permission was granted by Pembrokeshire County Council in respect of the South Hook Site. (b)     Application for hazardous substances consent 53 .     In the meantime, on 21 January 2003, Qatar Petroleum and ExxonMobil applied to Pembrokeshire County Council and Pembrokeshire Coast National Park Authority for hazardous substances consent for the storage and gasification of LNG at the South Hook site. The application was publicised and the HSE and MHPA were consulted. 54 .     On 8 January 2004 the HSE provided observations in respect of the application for hazardous substances consent at the South Hook terminal. It   noted that: “Our specialist team has assessed the risks to the surrounding areas from the activities likely to result if these Consents are granted. Only the risks from the hazardous substance for which the Consent is being sought have been assessed, together with the risk from these same substances in vehicles that are being loaded or unloaded ...” 55 .     On 10 February 2004, the Chief Executive of MHPA wrote to Pembrokeshire Coast National Park Authority with responses to questions asked. He observed that it was necessary to ensure that large LNG ships were managed in such a way that they were safely and effectively accommodated. He indicated that MHPA’s approach to accommodating the LNG vessels was by detailed risk assessment, taking into account the characteristics of the ships and the terminal to be used and making use of simulators and their own pilots and technical teams working with those of the project proposers, together with a wide range of specialist consultants, to determine the requirements to meet this objective. The result would take into account, for example, the number of tugs required for a movement; the number of pilots; whether tugs should be escorting the vessel; the limits on any weather conditions to allow a movement to take place; and the timing of any movement related to tidal conditions. He explained that MHPA did not intend to close the port while an LNG ship entered or left as it was not necessary and did not improve the situation. He continued: “... What we will probably be seeking to do (and I say probably because we are still very much involved in the risk assessment of a wide variety of scenarios) is that there will be a restriction on vessels being within a given distance of an LNG ship when transiting the Haven ... I also understand that some questions have been raised about the distance at which other vessels will be allowed to pass an LNG ship at the South Hook Jetty, given that this stretches some way into the Haven and that the main shipping channel in this vicinity is used by all other commercial ships being that their berths are further upriver. Again, we are researching this, testing on the simulators and undertaking risk assessments, but it is likely that we will be looking to undertake some dredging to widen the shipping channel to the South so that some vessels, including the ferry, will be able to pass the South Hook Jetty with an LNG ship alongside at a further distance than would be the case otherwise. We are also looking at other ways of controlling shipping passing the South Hook Jetty in such circumstances which could include criteria of speed, tugs in attendance, maybe even a ‘guard’ tug in the vicinity of the LNG ship and restricting any movements to one vessel at a time, certain weather conditions etc” 56 .     On 4 March 2004, the Western Telegraph newspaper published a question and answer article with ExxonMobil regarding the LNG terminal. Relevant extracts are quoted below: “Could LNG explode if there was a collision at sea or in the Haven? Or could it explode for any other reason? The South Hook sponsors have been working closely with organisations such as Milford Haven Port Authority to ensure that the possibility of a shipping incident is extremely low. Vessels are also designed to withstand significant impact. If an LNG release were to occur from a shipping incident, and if it were ignited, then the effect would be localised to the vessel and its immediate surroundings and unlikely to impact the land. The recent Health and Safety Executive assessment examined the consequence of such an incident and found no cause for local concern. ... What would happen if there were a spill on sea or on land? Health and Safety Executive experts have considered potential spill scenarios and have found no areas of concern. An incident at sea is extremely unlikely, and the current design of ship is aimed at minimising the likelihood of release in the event of collision. Milford Haven Port Authority has emphasised its ability to safely handle LNG shipping. ... Would it not be better if such a terminal was in a more uninhabited area? The HSE’s review has concluded there are no safety reasons to object to the proposed development. Our plans will be subject to a further safety review by the HSE, Environment Agency and the Coastguard under the Control of Major Hazards (COMAH) requirements. We, as operator, will have to demonstrate that all necessary measures have been taken to prevent major accidents. Any issues raised locally relating to safety systems, operating procedures and emergency response plans will have to be fully addressed.” 57 .     On 10 March 2004 Pembrokeshire Coast National Park Authority Planning Committee considered the application for hazardous substances consent. Concerns were raised at the meeting regarding a perceived absence of any QRA on tankers and the need to dredge the channel to increase its depth. 58 .     On 2 April 2004, Pembrokeshire County Council approved the application for hazardous substances consent in respect of the South Hook Site. 59 .     Pembrokeshire Coast National Park Authority approved the application on 19 August 2004. On the same day, the development planning officer of Pembrokeshire Coast National Park Authority, in a letter to the HSE, MHPA and Pembrokeshire County Council’s Emergency Planning Officer, highlighted concerns about the lack of comprehensive structure for assessing the risks of the project, saying: “Members however were still extremely concerned about safety issues and are hoping that the COMAH process is rigorous and very demanding and addresses all issues. This concern has arisen partly because of the fact that there does not appear to be one overriding Authority but a number of bodies involved whose responsibility does not overlap – and where the edge of that responsibility may be a bit blurred, and a genuine concern about exactly which body is responsible for what. The major concern appears to be the possible conflict between ships using the channel whilst an LNG slip is tied up at the jetty. Objectors seem to think that the space available is too narrow and that there is the potential for accidents if the jetty remains where it is ...” 60 .     ExxonMobil’s representatives were also advised of this concern by letter of 19 August 2004 and were asked to “ensure that the issue is fully addressed at the time of the COMAH submission”. 4.     The Health and Safety Executive’s risk assessment of the two projects 61 .     As set out above, the HSE played an important role in the planning and hazardous substances consent process and carried out its own assessments of the projects. In this context, it conducted a preliminary examination of potential marine spill scenarios, including the consequences of a major release from a delivery ship while moored at the jetty. However, it ceased work on this aspect of risk before it was concluded as marine risks were found to fall outside its ambit. 62 .     On 2 February 2006, in a letter to the Guardian newspaper, Geoffrey   Podger, Chief Executive of the HSE, wrote: “Re your report on the gas terminals at Milford Haven: I am happy to make clear that the HSE gave independent advice in the public interest and was not swayed by any external pressure ... The reason the HSE examined the shore side operation but not the risk of an accident at sea is simply because we have no legal competence to assess risks from ships while at sea or under the direction of the ship’s master. We made this clear to the local authorities and suggested they consult others, including the Maritime and Coastguard Agency, to assess these risks prior to any consent being granted.” 5.     Milford Haven Port Authority’s risk assessment of the two projects 63 .     Like the HSE, it can be seen from the above summary of the two projects that MHPA also participated in the planning process in respect of the LNG terminals. 64 .     On 23 February 2004 the Chief Executive of MHPA was asked which body had ultimate responsibility for assessing the risks involved in the movements of LNG tankers in Milford Haven. He replied on 25   February   2004, confirming that; “The Milford Haven Port Authority is responsible for the conservancy (management, regulation, provision of navigation aids and systems etc) of the Waterway. This includes the regulation and management of all shipping movements. We have a statutory responsibility to support all traffic and indeed, in common with all UK ports, cannot forbid a ship to enter (except in particular circumstances as laid down in appropriate Acts of Parliament). What we can and do lay down are the conditions under which movements will take place – e.g. time of entry, state of tide, number of pilots, number of tugs etc.” 65 .     On 27 September 2004, in a letter to Pembrokeshire County Council, the Harbourmaster of MHPA clarified the extent of MHPA’s responsibilities: “[MHPA] has navigational jurisdiction over the Waterway ... This jurisdiction includes responsibilities (and powers) to regulate the use of the Haven. Our primary objectives in this regard are to maintain, improve, protect and regulate the navigation and in particular the deep water facilities in the Haven ... Whilst the HSE have said that the Maritime and Coastguard Agency are the UK competent authority, this is correct inasmuch as they regulate shipping at sea and through legislation. As a competent authority they have an overarching view UK wide. Indeed, they advise on primary legislation which can affect the Port Authority and may act as auditors for the Port Marine Safety Code to which this Authority wholeheartedly subscribes. Their role in regard to LNG ships specifically would be that of Port State Control inspectors looking into the condition and standard of shipboard operations of the vessels from a safety standpoint. Marine personnel from the [MHPA], including pilots, have participated in risk assessments with teams from both proposed terminals facilitated by independent risk consultants. The outcome has been to confirm that Milford Haven has the capability of handling these vessels safely ... [Security] is addressed through the International Ship and Port Facility Security Code ... which sets out detailed security requirements for ships and port facilities based on risk assessments to determine the level of risk and the measures necessary to meet that risk. Port facilities throughout the Haven including Petroplus have been required to produce a security plan, appoint a security officer, provide additional security equipment, monitor and control access of people, cargo and stores as well as ensuring effective security communications. There will be a similar requirement for the South Hook terminal to prepare a security plan before they start operation.” 66 .     On 20 December 2004 the Chief Executive of MHPA responded to a letter from a Member of Parliament regarding the LNG terminals as follows: “As to the perception that we as a Port Authority are ‘reluctant’ to publish risk assessments ... this really flows from a lack of understanding of the role of the Port Authority. Unlike applications for the shore terminals where the process that is undertaken is very clearly defined and results on a go/no-go decision, our role as a Port Authority is different. We do not have the ability to deny access to any ship (other than in very specific and individual circumstances) given that the UK operates what can be loosely termed an ‘open ports policy’. What we do have is a responsibility to ensure that any shipping movements are managed in a safe and efficient manner. To this end we have undertaken, and continue to undertake, a wide range of risk assessments to determine the way in which this safe and effective management will be carried out. There is therefore no one single document or set of documents that clearly define the situation in which a ‘go/no-go decision’ can be determined, but rather a continuing process of scenario setting, risk assessment, trial, refining scenarios and identification of mitigation and prevention measures in which a wide number of variables are taken into account – some of which are still being developed as decisions as to the type of ships and their characteristics are being defined by the terminal operators and their teams.” 67 .     In a report dated 13 April 2005 Lloyd’s Register Risk Assessment Services, on the instructions of MHPA, examined and summarised high level statistics for worldwide accidents involving ships. Experience of a fire or explosion on board a ship large enough potentially to injure people nearby was “as likely per year as being struck by lightning”. The report observed that the likelihood of an LNG incident was extremely low and that there had never been a recorded incident of a major release of LNG from a ship to external atmosphere and no member of the public had ever been injured by LNG from a ship. The authors explained that the report carried a moderate level of error in light of the high level statistics used and concluded that more detailed research could be carried out to address the specific risks at Milford Haven. 68 .     In a paper of 20 May 2005, the Chief Executive of MHPA summarised the position regarding the LNG terminals. On the matter of risk assessments, the paper noted: “One of the concerns constantly banded about by Safe Haven ... is the lack of quantified risk assessment. This is a fallacy either through genuine misunderstanding or a deliberate refusal to accept what has been told. We have undertaken a significant amount of risk assessment both ourselves with the terminal operators, their advisers and making use of specialist third parties. The terminal developers themselves have also undertaken quantified risk assessment some of which related to shipping movements and we have made use of these in our own processes. To assist us in this we recently commissioned a report from Lloyds Register Risk Assessment Services looking specifically at the risk of incidents in Milford Haven large enough to potentially injure people nearby. Their conclusion was that there is as much risk of being struck by lightning as there is of being injured by any explosion including fire from LNG in the Haven ...” 69 .     On 9 June 2005 a journalist contacted MHPA asking what risk assessments it had undertaken in relation to plans to import LNG to the South Hook and Waterson sites, with specific regard to the marine-based risk. In an email response dated 15 June 2005, the Chief Executive of MHPA indicated that a number of risk