Exmouth Marina has failed in its second High Court attempt to retain a controversial ship racking system.
The structure, which allows up to four boats to be stored on top of each other, is 1.5m higher than the height permitted by planning consent.
East Devon District Council issued an enforcement notice for the removal of the development in May 2002, claiming that it was “harmful to the visual amenities of the surrounding land”. The notice has previously been considered by the High Court and two planning inspectors.
Judge Rich QC has upheld the second inspector’s decision to back the enforcement notice, stating that the inspector had been entitled to redetermine issues considered by the first inspector.
The council had originally granted permission in December 2001 for a metal racking system up to 6.8m in height. However, the structure eventually finished was 8.3m high.
In June 2003, Sullivan J allowed an appeal against the first inspector’s decision to uphold the council’s enforcement notice. The judge held that the inspector had erroneously accepted that the planning consent would not allow boats to be stacked on top of the structure, and ordered a second inspector to reconsider the matter.
However, the second inspector also concluded that the enforcement notice had been validly served.
He assessed the weight to be given to the 2001 consent as “fall-back”, and concluded that, because the likelihood of the 2001 consent being implemented was “more theoretical than real”, it should be given little weight.
On appeal, the marina claimed that the second inspector had not been permitted to reopen the question of how much weight to give to the “fall-back” position.
Judge Rich QC has held that the second inspector had been entitled to “decide the case anew” and that, “in fact, had been under a duty to do so”.
Exmouth Marina Ltd v First Secretary of State and another Queen’s Bench Division: Administrative Court (Judge Rich QC) 17 June 2004.
Robert Fookes (instructed by Foot Anstey Sargent, of Exeter) appeared for the claimant; Rupert Warren (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendants, East Devon District Council, did not appear and were not represented.
References: EGi Legal News 18/06/04
