The Queen (on the application of Robert Powell) v The Brighton Marina Company Ltd and Others Brighton and Hove City Council (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Patterson |
| Judgment Date | 27 June 2014 |
| Neutral Citation | [2014] EWHC 2136 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1228/2014 |
| Date | 27 June 2014 |
[2014] EWHC 2136 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Patterson
Case No: CO/1228/2014
Matt Hutchings (instructed by Richard Buxton Environmental & Public Law) for the Claimant
Richard Drabble QC and Daniel Kolinsky (instructed by Addleshaw Goddard LLP) for the First and Second Defendants
Sasha Blackmore (instructed by Browne Jacobson LLP) for the Third Defendant
Hearing date: 17th June 2014
Introduction
This is a rolled up hearing ordered by Foskett J on 8 th April 2014. The matters the subject of challenge are
i) The decision of the third defendant dated 19 th December 2013 to grant consent under Section 24 of the Brighton Marina Act 1968 to permit development;
ii) The actions of the first defendant in commencing development on the 16 th January 2014 and proceeding with it subsequently.
In argument the claimant contended that there were seven issues as follows
i) Whether the development of phase 1 is authorised by Section 5(2) of the Brighton Marina Act 1968 (BMA);
ii) Whether the powers under Section 5(2) of the BMA are subject to the time limit;
iii) Whether Section 40 of the BMA is an exhaustive statement of the powers of the first and second defendants for building in the Marina;
iv) Whether a marine licence under part 4 of the Marina and Coastal Access Act 2009 can authorise that which is not permitted under the 1968 ACT;
v) Whether the claim was brought promptly;
vi) Whether promptness applies;
vii) What relief is appropriate.
In any event the claimant seeks a declaration as to the meaning of the BMA, as that will apply to phase 2 of the development.
Background
The Brighton Marina covers some 127 acres. It is the largest marina in Europe with some 1500 berths in the outer harbour. That in turn is separated by a lock from the inner harbour.
The BMA began as a private bill in November 1965. After a public inquiry the Minister of Housing and Local Government granted planning permission to develop land east of Black Rock swimming pool and south of Undercliff Walk as a marina to include a yacht harbour, a marina club, restaurants, public houses, oceanarium, ice rink and recreational facilities, shops, hotel, a boatel and residential units.
A second bill was then presented. The select committee of the House of Lords produced a special report on the Brighton Marina Bill. The committee was satisfied that the recreation of yachting, cruising and boating was increasing and would continue to expand around the south coast of England so that it would be of public advantage to provide facilities to meet the increasing demand. The committee was satisfied that Brighton would be highly suitable as a site for a marina and that a marina in Brighton was justified in principle.
The committee heard and examined certain witnesses on the Bill. In part 2 of the Bill the committee referred to the "seaworks" that were required, numbered 1–9 inclusive, which dictated the overall size of the scheme. Once they were constructed some 34.5 acres of foreshore was available for ancillary works and development as required. From the financial evidence that it heard, the committee was satisfied that the proposal to construct a marina was not feasible without the additional income expected to be realised from the development of the foreshore.
The construction works were carried out under an agreement made on the 1 st March 1972 between Brighton Borough Council and Brighton Marina Company Limited. Brighton Corporation (the predecessor of Brighton Borough Council) had earlier purchased the freehold of the requisite land from the Crown. The works were completed in 1977. The marina was opened by the Queen in 1979.
On the 12 th March 1980 Brighton Borough Council granted a lease to the first defendant of the marina site in Brighton. That was subsequently replaced by a lease dated 27 th July 2005 by the interested party to the first defendant. On the 2 nd September 2010 the first defendant entered into an under-lease of land within the marina including the west quay with the second defendant.
On the 4 th April 2006 Brunswick Developments Group Plc obtained planning permission for a residential-led mixed-use development at the marina. That permission was implemented. On the 23 rd May 2013 a further planning permission was granted under Section 73 of the Town and Country Planning Act 1990.
The currently permitted development includes some 11 buildings including a stand-alone RNLI building. The building heights vary between 6 and 13 storeys with a single tall building of 40 storeys proposed on the South-Western part of the marina site. The buildings are proposed to be constructed on a 2.08 hectares deck above the existing beach. The 2013 permission altered the structure supporting the deck.
On the 19 th December 2013 the third defendant granted to the first defendant a marine licence under part 4 of the Marine and Coastal Access Act 2009 (MCAA) and granted consent under Section 24 of the BMA for the construction of an engineered basement below the deck to house a car park.
The marine licence has not been the subject of legal challenge. It has been varied subsequent to its issue.
On the 16 th January 2014 the interested party resolved to grant and, on the 5 th February 2014, did grant to the first and second defendants consents or waivers of the depth requirement under Section 57(4) of the BMA.
On the 16 th January 2014 the first and second defendants began piling works in the marina as part of the development.
The claimant is a local resident who lives on Marine Drive in Brighton. His home overlooks the marina and the proposed development.
The Legal Framework
The recital to the Act refers to the fact,
"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."
Section 4 is the definitions section. It includes a definition of "the works" as meaning those works authorised by Sections 5, 6 and 7. Section 5 is material to the current claim. It reads, where material,
"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:-…
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;
Work No. 8 A quay or wharf (incorporating piers or stagings extending seaward therefrom) commencing by a junction with the commencement of Work No. 6, extending in an easterly direction and terminating by a junction with Work No. 3 at a point 100 yards measured in a southerly direction from the commencement of that work;…
5 (2) The Company may within the limits of deviation for the said works extend, enlarge, alter, replace or relay the same."
Section 23 reads where material,
"23 (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."
Section 24 deals with the construction of tidal works. That reads where material,
"24 (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."
Section 40 provides the power to develop works and lands and reads,
"40 (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...
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