Environment – Marine licence – Marine and Coastal Access Act 2009 – Claimant applying for judicial review of defendant’s decision to grant marine licence to harbour authority – Whether proposed works constituting actionable interference with public rights of navigation – Application dismissed
In 2006, planning permission was obtained for a residential-led, mixed-use development at Brighton marina. Works to implement the permission were carried out but the scheme was not completed. Fresh planning permission was granted for a revised scheme under section 73 of the Town and Country Planning Act 1990, which was to be implemented in two phases. The defendant granted to the first interested party harbour authority a marine licence under section 71 of the Marine and Coastal Access Act 2009 for phase 2 of the project. The claimant was a local resident who lived in flat located within an art-deco 1930s block overlooking the seafront, the marina and the proposed development. He opposed the granting of the licence.
The claimant applied for an order quashing the grant of the marine licence. The claimant contended, amongst other things, that on the true construction of section 69(1) of the 2009 Act, the defendant had to consider whether the proposed phase 2 works would constitute an actionable interference with public rights of navigation in the outer harbour of the marina and, if there would be such an interference, the defendant was not empowered to grant a marine licence for those works in the absence of a harbour order under para 7B of Schedule 2 to the Harbours Act 1968, either extinguishing those rights or permitting that interference. The language of section 69(1)(c), which referred to the need to “prevent interference with the legitimate uses of the sea”, contrasted with the wording of section 69(1)(a) and (b), which referred to the need to protect the environment and human health. The “prevention of interference” was a stricter requirement than “protection” and had been deliberately chosen to align with the test for determining whether an interference with public rights of navigation would be unlawful. Although section 69(1)(a) and (b) did not refer to absolute requirements, section 69(1)(c) did. The latter had been differently worded to preclude consideration of the extent, or degree, to which public rights of navigation would be interfered with.
Held: The application was dismissed.
The claimant’s argument involved a fundamental misunderstanding of the 2009 Act, and of section 69(1) in particular. Section 69(1) had to be read as a whole and subpara (c) was a compendious expression. The defendant had to have regard to the need to prevent interference with legitimate uses of the sea, not to public rights of navigation. Legitimate uses need not derive from public rights of navigation. They might derive from, for example, marine licences already granted for a wide range of activities, including fixed structures and their uses. The need to prevent interference with such uses was not an absolute requirement. A provision stipulating that the decision-maker had to have regard to a particular subject, generally amounted to no more than an obligation to take that matter into account. It was generally for the decision-maker to decide how much weight had to be given to that subject in the circumstances of the particular case under consideration, especially where the statute required the authority to have regard to other matters as well (i.e. the protection of human health and the environment) and also permitted the authority to have regard to such other matters as it thought were relevant. Not all those considerations would necessarily pull in the same direction whether in favour of granting or refusing a licence application, and it would be necessary for the decision-maker to decide on how much weight to give to them and to strike a balance. It was plain that the phrase “legitimate uses of the sea” was not limited to public rights of navigation. Moreover, the fact that Parliament had in mind matters such as amenity and fishing demonstrated that it did not use the word “interference” so as to connote an interference of an actionable kind in a court of law: Edinburgh City Council v Secretary of State for Scotland [1997] 1 WLR 1447 applied.
Just as planning control was concerned with factors relating to the use of land, marine licensing was concerned with the use of the sea. Those uses were not limited to navigation, nor was the focus on the rights of navigation. Given that section 69(1) was relevant to whether or not an application for a marine licence should be granted, it could be seen “legitimate” was not used simply to refer to a lawful use or to legal rights, but in a broader sense to describe justified, proper or acceptable uses. The statutory obligations on the defendant reflected parliament’s intention to model the marine licensing system on terrestrial planning control, with adaptations. The claimant’s interpretation of section 69 was also inconsistent with the government’s approach in the White Paper on the Marine Bill, which was to provide a streamlined, simple licensing system which was flexible, targeted and proportionate, so that only those activities that posed a significant risk to other legitimate uses of the sea would be subject to regulation.
Section 69(1)(c) was not directed at the issue of whether the works proposed in a licence application would give rise to an actionable interference with public rights of navigation. Rather it was directed at the issue of whether the proposal would interfere with legitimate uses of the sea, including but not limited to, use of the sea purposes for the purposes of navigation, and if so whether any such interference would afford a sufficient ground for refusing the application. The defendant had discharged its obligation under section 69(1)(c) admirably. Having regard to the weight of evidence, it decided that the proposed activities would not interfere with navigation or safety in the entrance to the marina so as to justify refusing the application. The was no statutory requirement, or any need, for the defendant to determine whether the effect on public rights of navigation would also be actionable. The nature and extent of that effect were matters for the defendant and there were no public law grounds for impugning their judgment.
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.
Eileen O’Grady, barrister
Click here to read transcript: Powell v Marine Management Organisation
