Town and country planning – Development – Brighton Marine Act 1968 – Construction of marina authorised by 1968 Act – Consent subsequently granted for pier extension to support underground car park and residential buildings – Whether consent lawfully granted – Whether works permitted under 1968 Act – Permission for judicial review refused – Appeal dismissed
In December 2013, the third respondent granted consent pursuant to the Brighton Marina Act 1968 for works comprising phase I of the Outer Harbour development at Brighton Marina. The phase I development involved a pier extension to accommodate an underground car park and two buildings overground, with a total of 192 residential units plus food and drink units at ground level. The consent for those works was granted pursuant to section 24(1) of the 1968 Act, dealing with consents for the construction, alteration, extension, enlargement, replacement or re-laying of a “tidal work” authorised by the 1968 Act. In January 2014, the first and second respondents began piling work as part of the development.
The claimant, a local resident whose home overlooked the marina, applied for permission to bring judicial review proceedings challenging the lawfulness of the consent and the actions of the first and second respondents in commencing work pursuant to it.
The claimant contended that, on the proper construction of the 1968 Act, the works which it authorised under section 5(1) had to be completed by October 1979 and the power under section 5(2) to “extend, enlarge, alter, replace or relay” those works was subject to the same time limit, prescribed in section 23(1), so that no such works could now be carried out. An issue arose as to whether the works could now be carried out under section 5(2) and under section 40, which contemplated the development of the original works by “the erection thereon of buildings and other structures and works”.
Permission for the claim was refused in the court below: see [2014] EWHC 2136 (Admin); [2014] PLSCS 201. The appellant appealed.
Held: The appeal was dismissed.
Both the language used in section 5(2) and the underlying statutory purpose indicated that, if the works had been completed by October 1979, there was a continuing power to extend, enlarge, alter, replace or relay them, subject to various controls including the need for planning permission and for approval under section 24 if the work was a tidal work. The 1968 Act authorised the construction of permanent works in the very hostile environment of the sea. The works were intended to remain in place for very many years after October 1979. They would have to be maintained and there might well come a time when maintenance would not suffice and they would have to be replaced. Also, as the years passed, changing demands or new techniques might result in the need to extend, enlarge or alter the works. That being so, the activities described in section 5(2), namely replacement, extension, enlargement or alteration, would all be undertaken after, and sometime long after, the works had been completed. The lack of a power to replace, extend, enlarge or alter those permanent works after October 1979 would, as found by the judge below, stymie the clear statutory purpose of bringing to Brighton the expansion of facilities for the accommodation and employment of tourists, visitors and residents.
The phase I development amounted to an extension, enlargement or alteration to the “pier or breakwater” which section 5(1) had authorised to be constructed. Properly construed, the 1968 Act permitted the breakwater now to be extended, enlarged, altered or replaced provided the end result continued to fall within both the description of a “pier or breakwater” and the permitted limits of deviation and provided also that any necessary approvals under the Act, and planning permission, had been obtained. The judge had been entitled to find that the end product of the phase I works fell within the description of a “pier”. The work authorised by section 5(1) had been extended, enlarged and altered so as to produce a structure that, while it continued to function as a breakwater, was also a pier on which a mixed-use development of a kind contemplated by section 40 was being erected. It followed that phase I of the development was authorised by sections 5(2) and 40(1) of the Act. Moreover, section 40(1) did not operate as a prohibition on carrying out development beyond the geographical limits described in that section. While it did not permit such development, it did not preclude it if any necessary authorisation could be obtained under another relevant statutory code, such as the Marine and Coastal Access Act 2009 and/or the Harbours Act 1964.
Richard Drabble (instructed by Richard Buxton Environmental & Public law, of Cambridge) appeared for the appellant; Richard Drabble QC and Daniel Kolinsky QC (instructed by Addleshaw Godard LLP) appeared for the first and second respondents; Sasha Blackmore (instructed by Browne Jacobson LLP) appeared for the third respondent; the interested party, Brighton and Hove City Council, did not appear and were not represented.
Sally Dobson, barrister
