Robert Powell v The Marine Management Organisation Brighton Marina Company Ltd and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 23 June 2017 |
| Neutral Citation | [2017] EWHC 1491 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2968/2016 |
| Date | 23 June 2017 |
[2017] EWHC 1491 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr Justice Holgate
Case No: CO/2968/2016
George Laurence QC (instructed by Richard Buxton) for the Claimant
Sasha Blackmore (instructed by Browne Jacobson LLP) for the Defendant
Richard Drabble QC (instructed by Addleshaw Goddard) for the Interested Parties
Hearing dates: 22 nd and 23 rd March 2017
Approved Judgment
Introduction
The Claimant, Mr. Robert Powell, challenges the grant by the Defendant, the Marine Management Organisation ("the MMO"), of a marine licence under Section 71 of the Marine and Coastal Access Act 2009 ("MCAA 2009") on 24 February 2016. The licence was granted to the First Interested Party, the Brighton Marina Company Limited ("BMCL"). BMCL is the harbour authority for Brighton Marina. The Second Interested Party, The Outer Harbour Development Company Partnership LLP ("OHDC") is a subsidiary of BMCL and is the developer of phase 2 of a scheme for additional development at Brighton Marina. The marine licence relates to works comprised in phase 2.
The Brighton Marina covers an area of about 127 acres. It is one of the largest marinas in Europe and is the largest in the United Kingdom. It provides some 1500 berths in the outer harbour. Access is gained via a lock to an inner harbour. The development already carried out includes flats and dwellings, a superstore, shops, restaurants, a cinema complex and other leisure facilities.
The construction of the Marina was authorised by a private statute, the Brighton Marina Act ("BMA 1968"). The long title acknowledged that yachting, cruising and boating was expanding around the south coast of England and that it would be to the public benefit for existing facilities at Brighton for those purposes to be increased, together with facilities for the accommodation and recreation of tourists, visitors and residents on the sea front. The Act therefore authorised the reclamation of land from the sea, the carrying out of harbour works, and the development of the marina, residential and recreational facilities. Section 5(1) authorised BMCL to construct a number of Works, including new headquarters, piers, a quay and roads. Section 5(2) authorised BMCL to "extend, enlarge, alter, replace or relay" the works within the limits of deviation.
Brighton Corporation (the predecessor of Brighton Borough Council) purchased from the Crown the freehold of the land needed for the marina development. In March 1972 it entered into an agreement with BMCL for the carrying out of the infrastructure works, which were completed in 1977. The marina was opened by HM the Queen in 1979. On 12 March 1980 Brighton Borough Council granted a lease of the marina site to BMCL. This lease was replaced by a lease granted to BMCL on 27 July 2005 by the successor authority, Brighton and Hove City Council.
On 4 April 2006 Brunswick Developments Group plc obtained planning permission for a residential-led mixed-used development at the marina. Works to implement the permission were carried out but the scheme was not completed. On 23 May 2013 a fresh planning permission was granted for a revised scheme under section 73 of the Town and Country Planning Act 1990 ("TCPA 1990").
The currently permitted scheme includes the construction of a deck with an area of about 2.08 hectares over a "spending beach" and an area of sea to the south of that beach. This deck lies to the south of existing development within the marina (built on Work number 7 in BMA 1968). It would lie to the east of the West Breakwater (Work number 1 under BMA 1968) which in physical terms forms the westerly edge of the harbour. Boats entering the marina pass through an outer harbour entrance on the eastern side of the West Breakwater in a dredged navigation channel which proceeds northwards for a short distance before turning 90° towards the east, to arrive at the inner entrance to the harbour. It is important to note that this navigation channel lies clear of the area to the north which includes the spending beach and the area of sea which would be occupied by the deck. The "spending beach" is so called because of its designated function; namely to absorb and dissipate wave energy.
The development for which planning permission has been obtained includes the construction of 11 buildings. Phase 1 of the scheme involves the construction of buildings F1 and F2 on an extension to the pier identified as Work number 6 in BMA 1968 (and forming the northern side of the inner entrance to the harbour). Phase 2 involves the construction of 9 buildings on the new 2 hectare deck. Eight of the buildings would range in height from 2 to 13 storeys. The ninth building, K, would rise 40 storeys and lie at the south western corner of the scheme, adjacent to the West Breakwater.
The Claimant lives at R5, Marine Gate, Marine Drive, Brighton, a flat located within an art-deco 1930's block overlooking the sea front, the marina and the proposed development. "He and many others are seriously concerned about the effects of the proposed development, inter alia on their outlook, south across the Marina and the sea beyond" (paragraph 2 of the Claimant's Statement of Facts and Grounds). Of course, the impact of phases 1 and 2 of the marina development upon residential and local amenity would have been matters for the local planning authority to consider when planning permissions were granted in 2006 and 2013. It does not appear that either of those decisions was the subject of any legal challenge.
On 19 December 2013 the Defendant granted to BMCL (i) a marine licence under MCAA 2009 and (ii) a consent under section 24 of BMA 1968 in respect of phase 1 of the scheme. Consent under section 24 was required for "tidal works" authorised by the Act, that is works on, under or over tidal waters or tidal lands below "the level of mean high-water springs". No legal challenge was made to the marine licence.
But on 19 March 2014 the Claimant made an application for judicial review in respect of the section 24 consent. It was submitted that a section 24 consent could only be issued in relation to works authorised by BMA 1968 and that the phase 1 works were not so authorised because (inter alia) (a) they did not fall within section 5(2) as works to extend, enlarge, alter, replace or relay the works which had been specifically authorised under section 5(1) and (b) even if they did, the powers in section 5(2) were subject to the time limit in section 23, which required works authorised by the Act to be completed by 1 October 1979; and (c) in any event they were impliedly prohibited by section 40 of the Act. The challenge was dismissed 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).
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 would need to be replaced from time to time, or altered, extended or enlarged, the time limit in section 23 applied to the works originally authorised under section 5(1) and not to works subsequently carried out under section 5(2) in relation to those original works. They also held that the phase 1 works fell within section 5(2) of BMA 1968.
By the time of the hearing in the Court of Appeal it had become common ground that section 40 of BMA 1968 did not contain an implied prohibition of works outside the geographical limits described in that provision, but that if BMCL wished to carry out development outside those limits it would need statutory authority therefor, whether by a private Act or by a marine licence under section 71 of MCAA 2009 or by an order under the Harbours Act 1964. BMCL accepted though its Leading Counsel, Mr. Richard Drabble QC (who also appeared for BMCL in the present proceedings) that parts of phase 2 of the project were not authorised by BMA 1968 and that any further authorisations required, for example under MCAA 2009, would have to be obtained ( [2015] EWCA Civ 650 paragraphs 23 to 26).
Sullivan LJ noted that "the real issue between the Appellant and the First and Second Respondents was whether the carrying out of phase 2 of the development would amount to an unlawful interference with the public right of navigation", an issue "which would require consideration of matters of fact and degree" and could not be resolved in that appeal (paragraph 26). In these proceedings the Claimant has indeed sought to make the lawfulness of the marine licence granted on 24 February 2016 turn upon whether the development proposed for phase 2 would unlawfully interfere with public rights of navigation.
For completeness, I mention that on 31 October 2015, over 4 months after judgment had been handed down in the Court of Appeal, the Claimant applied to re-open the hearing of the appeal under CPR 52.17 on the grounds that the Court had misunderstood his Solicitor advocate to have accepted that section 40 of BMA 1968 did not contain an implied prohibition on the carrying out of works outside the ambit of that Act. On 3 December 2015 Sales LJ rejected the application, so that the Court's "ruling" at paragraph 25 of [2016] EWCA Civ 650 still stood.
Thereafter the Claimant applied to the Supreme Court for permission to appeal in relation to the section 40 issue. That application was refused on 12 May 2016. By then phase 1 was "materially complete" (see paragraph 5 of the Statement of Facts and Grounds in the present claim).
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