Town and country planning – Development – Statutory construction – Brighton Marine Act 1968 authorising construction of marina – Claimant challenging lawfulness of subsequent grant of development consent under 1968 Act – Whether development being permitted by statute – Whether claimant delaying issue of proceedings – Application dismissed
The Brighton Marine Act 1968 authorised the construction of a marina. By section 23, if the works were not completed by 1 October 1979, the powers granted under the Act ceased. Section 5 set out the works which might be “made” by the developer and section 5(2) provided that the developer might extend, enlarge, alter, replace or relay those works within the prescribed limits of deviation. The construction works were carried out under a 1972 agreement between the local authority and a company. The local authority’s predecessor had earlier purchased the freehold of the requisite land from the Crown. The works were completed in 1977 and the marina was opened in 1979. It covered some 127 acres and was the largest marina in Europe with 1500 berths in the outer harbour.
In April 2006, a developer obtained planning permission for a residential-led mixed use development at the marina which was implemented. In May 2013, a further planning permission was granted under section 73 of the Town and Country Planning Act 1990. The permitted development included 11 buildings, including a stand-alone RNLI building. The building heights varied 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 were proposed to be constructed on a 2.08 hectare deck above the existing beach.
On 19 December 2013, the third defendant marine management organisation granted the first defendant consent, under section 24 of the 1968 Act, for the construction of tidal works, namely, an engineered basement below the deck to house a car park. In January 2014, the first and second defendants began piling work as part of the development. The claimant, a local resident whose home overlooked the marina and the proposed development, applied for judicial review of the 2013 decision to grant consent.
The claimant contended that, on the proper construction of the 1968 Act, the proposed development was not permitted. The defendants maintained that the claimant had no adequate explanation for the claim being late or for the lack of promptness in issuing on the very last day for challenge to the decision of the third defendant in December 2013.
Held: The application was dismissed.
(1) Section 5 of the 1968 Act authorised the making and maintaining of the works set out within that section. Under section 5(2), power had been granted to “extend, enlarge, alter, replace or relay” the works under section 5(1). The exercise of that power was not affected by the end date of 1 October 1979. Both in terms of the language used and the purpose of the statute, the meaning of section 5 of the Act was clear. It was highly material that the power in section 5 was wide. Provided that the work had taken place within the lines of deviation, extension, enlargement, alteration and replacement of the originally authorised and completed works, it was permitted. It followed that what was being constructed at present was permitted under section 5. Section 40 had taken matters still further by giving the power to lay out and develop any part of specified works: Marcic v Thames Water Utilities Ltd [2003] UKHL 66; [2003] PLSCS 268; [2004] 2 AC 42 distinguished.
Accordingly, in the present case, the third defendant had been acting lawfully in issuing the consent. What was being constructed was within what was permitted under section 5. As regards section 40, the fact that the piling works were associated with an underground structure to be used for car parking purposes did not take the works outside the statutory provisions. Given the language of the statute, the works were clearly within the statutory provisions provided that they could come within the descriptions in section 5(2).
(2) Since the claim was not a challenge to a planning permission, the six week period under CPR 54.5 within which a claim had to be brought did not apply. However, it was clear that the reason for issuing the challenge on the last day within the three month period had to be looked at in all the circumstances of the case. There was an expectation of promptness which was to be judged against the entire background of the case. In the present case, it was clear that the claimant had been well aware of the issues that he had been seeking to raise as long ago as 2006. Experienced environmental solicitors had been instructed and had been on the record since October 2013. In those circumstances, to wait until the last day of the three-month period before bringing the claim was not acting promptly. Accordingly, the claim had not been brought with appropriate promptness: R (on the application of Finn-Kelcey) v Milton Keynes Council [2008] EWCA Civ 1067; [2008] PLSCS 267; [2008] 41 EG 157 (CS) and R (on the application of Berky) v Newport City Council [2012] EWCA Civ 378; [2012] PLSCS 79 applied.
Matt Hutchings (instructed by Richard Buxton Environmental and Public Law) appeared for the claimant; Richard Drabble QC and Daniel Kolinsky (instructed by Addleshaw Goddard LLP) appeared for the first and second defendants; Sasha Blackmore (instructed by Browne Jacobson LLP) appeared for the third defendant.
Eileen O’Grady, barrister
