Carralyn Parkes, R (on the application of) v Dorset Council
| Court | King's Bench Division (Administrative Court) |
| Judge | Mr Justice Holgate |
| Neutral Citation | [2024] EWHC 1253 (Admin) |
| Date | 23 May 2024 |
| Year | 2024 |
| Counsel | Alex Goodman Kc,Penelope Nevill,Fiona Petersen,Alex Shattock,Richard Wald Kc,Jake Thorold,Smith,Sasha Blackmore,Guy Williams Kc,Nina Pindham,Richard Honey Kc,Stephanie Bruce Smith |
Neutral Citation Number: [2024] EWHC 1253 (Admin)
Case No: AC-2023-LON-003033
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 23/05/2024
Before :
THE HON. MR JUSTICE HOLGATE
- - - - - - - - - - - - - - - - - - - - -
Between :
THE KING on the application of CARRALYN
PARKES Claimant
- and -
DORSET COUNCIL
- and –
(1) PORTLAND PORT LIMITED
(2) SECRETARY OF STATE FOR THE HOME
DEPARMENT
(3) SECRETARY OF STATE FOR LEVELLING
UP, HOUSING AND COMMUNITIES
Defendant
Interested
Parties
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- - - - - - - - - - - - - - - - - - - - -
Alex Goodman KC, Penelope Nevill, Fiona Petersen and Alex Shattock (instructed by
Deighton Pierce Glynn) for the Claimant
Richard Wald KC and Jake Thorold (instructed by Dorset Council) for the Defendant
The First Interested Party did not appear and was not represented
Guy Williams KC and Nina Pindham (instructed by the Government Legal Department) for
the Second Interested Party
Richard Honey KC and Stephanie Bruce-Smith (instructed by the Government Legal
Department) for the Third Interested Party
Sasha Blackmore (instructed by and made submissions on behalf of the
Marine Management Organisation)
Hearing dates: 27-29 February 2024
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Approved Judgment
This judgment was handed down remotely at 10.30am on 23 May 2024 by circulation to the
parties or their representatives by e-mail and by release to the National Archives.
.............................
THE HON. MR JUSTICE HOLGATE
THE HON. MR JUSTICE HOLGATE
Approved Judgment
R (Parkes) v Dorset Council
Mr. Justice Holgate:
1. The central question in this claim for judicial review is what is the geographical extent
of planning control in England and Wales under the Town and Country Planning Act
1990 (“TCPA 1990”) where the land meets the sea? It is well-established under the
parallel legislation in Scotland that planning control does not extend below the mean
low water mark (“LWM”) (Argyll and Bute District Council v Secretary of State for
Scotland (1976) S.C. 248). When the modern system of planning control was enacted
in 1947 for both jurisdictions, or in their subsequent iterations, did Parliament intend
that the English regime should differ from Scotland by extending beyond the LWM?
2. Both jurisdictions are concerned with regulating the “development” of “land”, not
water. Water flowing in a river or as the sea is not land or a corporeal hereditament
(Thames Heliport plc v London Borough of Tower Hamlets (1997) 77 P & CR 164,
168). But does “land” in England and Wales include the sea bed beyond the LWM of
the foreshore?
3. This issue arises in relation to the Bibby Stockholm, a barge which has been moored
in Portland Harbour, Dorset to accommodate asylum-seekers. The duties of the SSHD
to provide accommodation to destitute asylum seekers under ss.95 and 98 of the
Immigration and Asylum Act 1999 and the requirements which they have generated
have been summarised in Braintree District Council v Secretary of State for the
Home Department by the High Court [2023] EWHC 1076 (KB) at [11] to [28] and by
the Court of Appeal at [2023] 1 WLR 3087 at [10] to [17].
4. The barge is moored adjacent to a pier above a part of the sea bed which is never
exposed during the ebb and flow of the tide. That area always lies below the LWM.
5. Ms. Carralyn Parkes is a town councillor and the mayor of Portland Town Council.
She brings this claim in a personal capacity as a local resident. She contends that the
area of the sea bed above which the Bibby Stockholm is stationed (a) forms part of the
“land” which is subject to planning control under the TCPA 1990 and (b) constitutes a
material change in the use of that land so as to constitute “development” requiring
planning permission. On that basis she says that it is open to the local planning
authority (“LPA”), the defendant Dorset Council (“DC”), to consider taking
enforcement action for any breach of planning control in respect of that use under Part
VII of the TCPA 1990. The claimant seeks a declaration that DC has erred in law in
deciding that the area occupied by the Bibby Stockholm falls outside planning
control.
6. DC, together with the Secretary of State for the Home Department (“SSHD”), the
hirer of the barge and second interested party, and the Secretary of State for Levelling
Up, Housing and Communities (“SSLUHC”), the third interested party, contend that
planning control under the TCPA 1990 does not extend below the LWM. Portland
Port Limited (“PPL”), the first interested party, is the harbour authority for Portland
Harbour. It did not take part in the proceedings.
7. On 4 December 2023, I adjourned the application for permission to apply for judicial
review to a rolled up hearing.
3
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