Planning permission–Scheme for marina for 500 yachts in Harwich harbour called in by Secretary of State–Inspector says scheme would create hazards in the operation of the port, Secretary of State says Department of Trade’s consent concludes that issue–Not so, Department of Trade concerned only with a narrower question–Order quashing decision confirmed on appeal
This was an
appeal by the Secretary of State for the Environment and Stour River Estate
from a judgment of MacKenna J in the Queen’s Bench Division on December 3 1973
(reported at 230 EG 225) quashing a decision under section 35 of the Town and
Country Planning Act 1971 by which the Secretary of State granted planning
permission for the development of a 500-berth yacht marina and associated
facilities at Erwarton Bay, Shotley, near Harwich. The respondents to the
appeal were the Harwich Harbour Conservancy Board.
Mr J Priest
QC, Mr H K Woolf and Mr P Vallance (instructed by the Treasury Solicitor)
appeared for the Secretary of State; Sir Michael Havers QC and Mr A R Grove
(instructed by Joynson-Hicks & Co) for Stour River Estate; and Mr K Jupp
QC, Mr M G V Harrison and Mr D Robins (instructed by Sherwood & Co) for the
board.
Giving
judgment, LORD DENNING said that in order to implement their proposal for a
yacht marina, the developers, Stour River Estate, had to get permission from
the Secretary of State for Trade and Industry, who came into the matter because
of two private Acts dealing with Harwich harbour which were passed in 1863 and
1865, and a public Act, the Coast Protection Act 1949. Apart from that, the
developers had to get planning permission under the planning Acts, and their proposal
was called in by the Secretary of State for the Environment under section 35 of
the Act of 1971 for his own decision. He ordered an inquiry, and appointed an
inspector who, although putting on one side many grounds of objection, was much
impressed with the difficulties which would arise in the future in the user of
the harbour. The inspector heard evidence from the masters of vessels and
stated: ‘Harwich Harbour has seen a fantastic growth of commercial tonnage over
the last 10 years. . . . The application is for 500 large yachts capable of
going to sea to be moored opposite Parkeston Quay, a very busy part of the
harbour, and I think that this substantial number of pleasure vessels might
well have a detrimental effect on the commercial operation of the port and the
safety of those who use it.’ On that
ground the inspector recommended that planning permission be refused. The
Secretary of State, having considered his inspector’s report, took a contrary
decision and granted planning permission. He said, in effect, that there were
no sufficient grounds for refusing it. There was no doubt that he was much
influenced by a decision of the Department of Trade. He thought that the
responsibility in respect of traffic and navigation in Harwich Harbour could safely
be left in the hands of that department, and he need not worry himself about
that aspect. Harwich Harbour Conservancy Board complained about the Secretary
of State’s decision, and the judge upheld their case. The other parties now
appealed from the judge’s order.
Under the
Harwich Harbour Act 1863, section 17, it was enacted that it was not lawful for
any person to construct any work below high-water mark if such work would be
injurious to the navigation of the harbour or the entrance thereof or would tend
to obstruct access thereto. The main objective of that section was to ensure
that the works themselves, such as a jetty put out in the harbour, would not
obstruct or tend to obstruct the free passage of vessels up and down, or cause
silting to take place. It was not in the least directed to the number of
vessels which might use the harbour. The Harwich Harbour Act 1865, section 26,
stated that a person who wanted to erect a pier or wharf, or any other
erection, had a right to do so, unless in the opinion of the conservancy board,
or the Board of Trade on appeal, the construction would be injurious to
navigation. There again, it was the works themselves which were to be
considered–whether they would be injurious to navigation–and not the user
consequent on them or the number of vessels which might use them. It appeared,
therefore, that under those private Acts the Department of Trade was not to
consider the effect of building works on the amount of traffic in the harbour,
but the effect of the works in terms of actual physical hindrance of the
vessels going to and fro. The Coast Protection Act 1949, section 34 (1), said
that ‘no person shall without the consent in writing of the Minister of
Transport . . . (a) construct, alter or improve any works . . . so that
obstruction or danger to navigation is caused or is likely to result.’ That seemed wider at first sight than the
private Acts, but the question was whether it was limited to a narrow
consideration, whether the works themselves or their operation were an
obstruction or danger to navigation, or whether it extended to a much wider
consideration, whether the user of such things as a marina or jetty, or the
number of vessels going to them, would be likely to cause interference,
obstruction or danger to navigation.
It seemed to
him (his Lordship) that there was no doubt that the Department of Trade, in
correspondence with the conservancy board, led them to believe that the
department were taking a narrow view of their powers under the provisions of
the 1949 Act. At the inquiry, the board made the positive statement as part of
their case under the 1865 Act: ‘The department [of Trade] were unable to take
into account the effect of the increase in traffic resulting from the
proposals.’ That interpretation was never
contradicted, and the inspector quite clearly thought that the narrow view was
being taken and that the consent of the department was only a consent so far as
the narrow view was concerned–obstruction by the works themselves, and not what
effect the user would have on the use of the harbour by vessels. He (Lord
Denning) thought that that was the correct view. The wording of the 1949 Act
was in relation to whether, in the operation and the construction of the works,
an obstruction to navigation was caused or was likely to be caused. It was the
same as in the construction of the 1865 Act. One looked at whether the
operations themselves caused obstruction or danger to the vessels using the
harbour, and not at the wider position–what was the effect of the increasing
number of vessels on navigation. That was how the inspector understood the
matter. He went on to consider the effect of increased traffic and came
to the conclusion that the proposal might well have a detrimental effect on the
commercial operations of the port.
The real point
in the case was whether the Secretary of State for the Environment had
misdirected himself in law. Having regard to the specific legislation, he took
the view that the exercise of planning powers would be inappropriate, and he
was accordingly satisfied that planning permission ought not to be refused on
this ground. His decision letter stated:
‘The
Secretary of State has taken note of the inspector’s conclusion that there
might well be a detrimental effect on the commercial operation of the port,
arising from the presence of a large number of yachts. Having regard to the
responsibilities of the Secretary of State for Trade and Industry with regard
to possible ‘obstruction or danger to navigation’ the Secretary of State does not
consider, on the material before him and using his best judgment, that there
are any grounds for refusing planning permission for this reason.’
Sir Michael
Havers had submitted that the Secretary of State had brought his own judgment
to bear on the material before him. He (his Lordship) could not so interpret
the decision letter. The Secretary of State was considering that the Department
of Trade had responsibility in the matter and that if they consented to it, as
he seemed to think they had done, that was good enough. In that he was in
error. The Department of Trade were limited to the impact of the works
themselves on the vessels passing to and fro. At the planning inquiry, the
evidence of masters of ships using the harbour was analysed, and the inspector
went into it most carefully. With the Department of Trade, there was no such
inquiry required, with all the careful investigation that took place at the
planning inquiry. In other words, the hindrance to traffic and detrimental
effect on the port seemed a very proper matter to be considered. This was a
matter for the inspector, and on his reference the Secretary of State ought to
have taken the responsibility of deciding it himself and not have fallen back
on the previous matters dealt with by the Department of Trade. If he had
considered it himself, he (Lord Denning) thought he would have been very slow
to interfere with the recommendations of his own inspector.
ORR and BROWNE
LJJ agreed, and the appeal was accordingly dismissed.
