R Robert Powell v The Brighton Marina Company Ltd and Others Brighton and Hove City Council (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan,Lord Justice Floyd,Lady Justice Arden |
| Judgment Date | 26 June 2015 |
| Neutral Citation | [2015] EWCA Civ 650 |
| Date | 26 June 2015 |
| Docket Number | Case No: C1/2014/2254 |
| Court | Court of Appeal (Civil Division) |
[2015] EWCA Civ 650
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
PATTERSON J
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
CO/1228/2014
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice Sullivan
and
Lord Justice Floyd
Case No: C1/2014/2254
Richard Buxton (instructed by Richard Buxton Environmental and Public Law) for the Appellant
Richard Drabble QC and Daniel Kolinsky QC (instructed by Addleshaw Goddard LLP) for the First and Second Respondents
Sasha Blackmore (instructed by Browne Jacobson LLP) for the Third Respondent
The Interested Party was not represented and did not appear.
Hearing dates: 16 TH & 17 TH June 2015
Introduction
This is an appeal against the Order dated 27 th June 2014 of Patterson J refusing the Appellant's application for permission to apply for judicial review of: (i) the decision dated 19 th December 2013 of the Marine Management Organisation ("MMO") to grant a consent under section 24 of the Brighton Marina Act 1968 ("the Act") for Phase I of the Outer Harbour development at Brighton Marina ("the development"); and (ii) the actions of the First and Second Respondents in commencing Phase I of the development on 16 th January 2014, and thereafter in proceeding with it.
Background
The background to the claim for judicial review is set out in paragraphs 4–16 of Patterson J's judgment [2014] EWHC 2136 (Admin).
The Act is "An Act to authorise the Brighton Marina Company to construct works; and for other purposes." The recitals explain the need for the Act, as follows:
"And whereas the sport of yachting, cruising and boating is expanding and is likely to continue to expand around the south east of England and it would be of public and local advantage to increase the existing facilities therefore at Brighton:
And whereas the county borough of Brighton and its environs constitute an important holiday and residential centre and it would be of public and local advantage to expand the existing facilities for the accommodation and enjoyment of tourists and visitors and of residents on the sea front in the said county borough:
And whereas it is expedient that the Company should be authorised to construct the marina and the recreational, residential and other facilities and the road and harbour works described in this Act and to reclaim land from the sea, as by this Act provided:"
Section 4 is the definitions section. The definitions include the following definition of "the works"
""the works" means the works authorised by section 5 (Power to construct works) of this Act and any works constructed under section 6 (General power to make subsidiary works) and section 7 (Subsidiary works on foreshore) of this Act for or in connection with or subsidiary to any of those works and includes those works as extended, enlarged, altered, replaced or relaid under subsection (2) of the said section 5 and "work" shall be construed accordingly."
The power to construct the works is conferred by section 5(1):
"5 (1) Subject to the provisions of this Act the Company may make and maintain in the lines and situations and upon the lands delineated on the deposited plans and described in the deposited book of reference, and according to the levels shown on the deposited sections the following works, that is to say:-…"
Works Nos. 1–14 are then described. Works Nos. 1–3 are three breakwaters. Works Nos. 6 and 7 are described as follows:
"Work No. 6 A pier or breakwater commencing at a point 390 yards measured in an east-south-easterly direction from the commencement of Work No 1 and terminating at a point 220 yards measured in a southerly direction from the point of commencement;
Work No. 7 A reclamation embankment commencing by a junction with Work No. 1 at a point 195 yards measured in a southerly direction from the commencement of that work, extending in an easterly direction and terminating by a junction with Work No. 6 at a point 30 yards measured in a southerly direction from the commencement of that work."
Subsections 5(2) and (3) provide:
"(2) The Company may within the limits of deviation for the said works extend, enlarge, alter, replace or relay the same.
(3) The Company may by means of Works Nos. 1, 3, 7 and 8 and of that part of Work No. 6 which extends from the termination of Work No. 7 to the commencement of Work No. 8, enclose, in and reclaim from the foreshore and bed of the sea so much of the foreshore and bed of the sea as lies between Works No. 1 and 3 and is situate within the limit of deviation of Works Nos. 7 and 8 and landward of those works."
Section 23 deals with the period within which the works must be completed:
"(1) If the works authorised by section 5 (Power to construct works) of this Act are not completed before 1 st October 1979, then on that day the powers by this Act granted to the Company for making and completing those works shall cease, except as to so much thereof as is then completed.
(2) On the application of the Company the Minister may by order extend the period referred to in subsection (1) of this section.
(3) An order, under subsection (2), of this section shall be subject to special parliamentary procedure."
Section 24(1) provides that:
"(1) A tidal work shall not be constructed, altered, extended, enlarged, replaced or relaid except in accordance with plans and sections approved by the Board of Trade and subject to any conditions and restriction imposed by the Board before the work is begun."
A "tidal work" means so much of any work authorised by the Act that is "on, under or over tidal waters or tidal land below the level of high water": subsection 4(1).
The only other section which is directly relevant for present purposes is section 40 which gives the Company power to develop works and lands:
"(1) Subject to the provisions of this Act the Company may lay out and develop any lands to which this section applies (or any part of Works Nos. 1 to 9 inclusive) by the erection thereon of buildings and other structures and works, including without prejudice to the generality of the foregoing, car parks (either over or underground), filling stations, hotels, restaurants, club premises, offices, theatres, cinemas, casinos, dance halls, ice rinks, playgrounds, boatyards, bowling alleys, shops, houses, flat and other residential accommodation and in connection with such development may construct, sewer, pave, flag, channel and kerb streets, bridges, and ways:
Provided that any development authorised by this section shall not by virtue only of this section be deemed for the purposes of the Town and Country Planning General Development Orders, 1963 to 1965 and any enactment amending or replacing the same, to be carried out in pursuance of an Act which designated specifically both the nature of the development and the land upon which it may be carried out.
(2) The lands to which this section applies are those parts of the foreshore, the bed of the sea and other lands which lie between Works 1 and 3 and are situate within the limits of deviation of Works 7 and 8 and landward of those works (but excluding any part of Undercliff Walk)."
The Act contains four sections (sections 56–59) for the protection of the (then) County Borough of Brighton, which the Corporation may waive if it chooses to do so: see section 55. The four sections include section 58 under which the Corporation has to give its consent to any "authorised works." If the plans relate to "a...
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Robert Powell v The Marine Management Organisation Brighton Marina Company Ltd and Another (Interested Parties)
...by Patterson J on 27 June 2014 ( [2014] EWHC 2136 (Admin)). An appeal to the Court of Appeal was dismissed on 26 June 2015 ( [2015] EWCA Civ 650). 11 Both the judge and the Court of Appeal held that because the statutory works were to be constructed in a hostile environment, the sea, and ......