Powell, R (on the application of) v The Brighton Marina Company Ltd & Ors [2014] EWHC 2136 (Admin)

Case No CO/1228/2014[2014] EWHC 2136 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27/06/2014
Before
MRS JUSTICE PATTERSON
Between
THE QUEEN (on the application of ROBERT POWELL)Claimant
Matt Hutchings (instructed by Richard Buxton Environmental & Public Law) for ClaimantRichard Drabble QC and Daniel Kolinsky (instructed by Addleshaw Goddard LLP) for First and Second DefendantsSasha Blackmore (instructed by Browne Jacobson LLP) for Third DefendantHearing Hearing date: 17th June 2014
Judgment

Introduction

[1]This is a rolled up hearing ordered by Foskett J on 8th April 2014. The matters the subject of challenge are i) The decision of the third defendant dated 19th December 2013 to grant consent under Section 24 of the Brighton Marina Act 1968 to permit development; ii) The actions of the first defendant in commencing development on the 16th January 2014 and proceeding with it subsequently.[2]In argument the claimant contended that there were seven issues as follows i) Whether the development of phase 1 is authorised by Section 5(2) of the Brighton Marina Act 1968 (BMA); ii) Whether the powers under Section 5(2) of the BMA are subject to the time limit; iii) Whether Section 40 of the BMA is an exhaustive statement of the powers of the first and second defendants for building in the Marina; iv) Whether a marine licence under part 4 of the Marina and Coastal Access Act 2009 can authorise that which is not permitted under the 1968 ACT; v) Whether the claim was brought promptly; vi) Whether promptness applies; vii) What relief is appropriate.[3]In any event the claimant seeks a declaration as to the meaning of the BMA, as that will apply to phase 2 of the development.

Background

[4]The Brighton Marina covers some 127 acres. It is the largest marina in Europe with some 1500 berths in the outer harbour. That in turn is separated by a lock from the inner harbour.[5]The BMA began as a private bill in November 1965. After a public inquiry the Minister of Housing and Local Government granted planning permission to develop land east of Black Rock swimming pool and south of Undercliff Walk as a marina to include a yacht harbour, a marina club, restaurants, public houses, oceanarium, ice rink and recreational facilities, shops, hotel, a boatel and residential units.[6]A second bill was then presented. The select committee of the House of Lords produced a special report on the Brighton Marina Bill. The committee was satisfied that the recreation of yachting, cruising and boating was increasing and would continue to expand around the south coast of England so that it would be of public advantage to provide facilities to meet the increasing demand. The committee was satisfied that Brighton would be highly suitable as a site for a marina and that a marina in Brighton was justified in principle.[7]The committee heard and examined certain witnesses on the Bill. In part 2 of the Bill the committee referred to the “seaworks” that were required, numbered 1-9 inclusive, which dictated the overall size of the scheme. Once they were constructed some 34.5 acres of foreshore was available for ancillary works and development as required. From the financial evidence that it heard, the committee was satisfied that the proposal to construct a marina was not feasible without the additional income expected to be realised from the development of the foreshore.[8]The construction works were carried out under an agreement made on the 1st March 1972 between Brighton Borough Council and Brighton Marina Company Limited. Brighton Corporation (the predecessor of Brighton Borough Council) had earlier purchased the freehold of the requisite land from the Crown. The works were completed in 1977. The marina was opened by the Queen in 1979.[9]On the 12th March 1980 Brighton Borough Council granted a lease to the first defendant of the marina site in Brighton. That was subsequently replaced by a lease dated 27th July 2005 by the interested party to the first defendant. On the 2nd September 2010 the first defendant entered into an under-lease of land within the marina including the west quay with the second defendant.[10]On the 4th April 2006 Brunswick Developments Group Plc obtained planning permission for a residential-led mixed-use development at the marina. That permission was implemented. On the 23rd May 2013 a further planning permission was granted under Section 73 of the Town and Country Planning Act 1990.[11]The currently permitted development includes some 11 buildings including a stand-alone RNLI building. The building heights vary 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 are proposed to be constructed on a 2.08 hectares deck above the existing beach. The 2013 permission altered the structure supporting the deck.[12]On the 19th December 2013 the third defendant granted to the first defendant a marine licence under part 4 of the Marine and Coastal Access Act 2009 (MCAA) and granted consent under Section 24 of the BMA for the construction of an engineered basement below the deck to house a car park.[13]The marine licence has not been the subject of legal challenge. It has been varied subsequent to its issue.[14]On the 16th January 2014 the interested party resolved to grant and, on the 5th February 2014, did grant to the first and second defendants consents or waivers of the depth requirement under Section 57(4) of the BMA.[15]On the 16th January 2014 the first and second defendants began piling works in the marina as part of the development.[16]The claimant is a local resident who lives on Marine Drive in Brighton. His home overlooks the marina and the proposed development. The Legal Framework The Brighton Marina Act 1968

The Legal Framework

[17]The recital to the Act refers to the fact, “That the company should be authorised to construct the marina and the recreational, residential and other facilities and the road and harbour works described in this Act and to reclaim land from the sea.”[18]Section 4 is the definitions section. It includes a definition of “the works” as meaning those works authorised by Sections 5, 6 and 7. Section 5 is material to the current claim. It reads, where material, “5(1) Subject to the provisions of this Act the Company may make and maintain in the lines and situations and upon the lands delineated on the deposited plans and described in the deposited book of reference, and according to the levels shown on the deposited sections the following works, that is to say:-… Work No. 6 A pier or breakwater commencing at a point 390 yards measured in an east-south-easterly direction from the commencement of Work No 1 and terminating at a point 220 yards measured in a southerly direction from the point of commencement; Work No. 7 A reclamation embankment commencing by a junction with Work No. 1 at a point 195 yards measured in a southerly direction from the commencement of that work, extending in an easterly direction and terminating by a junction with Work No. 6 at a point 30 yards measured in a southerly direction from the commencement of that work; Work No. 8 A quay or wharf (incorporating piers or stagings extending seaward therefrom) commencing by a junction with the commencement of Work No. 6, extending in an easterly direction and terminating by a junction with Work No. 3 at a point 100 yards measured in a southerly direction from the commencement of that work;… 5(2) The Company may within the limits of deviation for the said works extend, enlarge, alter, replace or relay the same.” Work No. 6 A pier or breakwater commencing at a point 390 yards measured in an east-south-easterly direction from the commencement of Work No 1 and terminating at a point 220 yards measured in a southerly direction from the point of commencement; Work No. 7 A reclamation embankment commencing by a junction with Work No. 1 at a point 195 yards measured in a southerly direction from the commencement of that work, extending in an easterly direction and terminating by a junction with Work No. 6 at a point 30 yards measured in a southerly direction from the commencement of that work; Work No. 8 A quay or wharf (incorporating piers or stagings extending seaward therefrom) commencing by a junction with the commencement of Work No. 6, extending in an easterly direction and terminating by a junction with Work No. 3 at a point 100 yards measured in a southerly direction from the commencement of that work;…[19]Section 23 reads where material, “23(1) If the works authorised by section 5 (Power to construct works) of this Act are not completed before 1st October 1979, then on that day the powers by this Act granted to the Company for making and completing those works shall cease, except as to so much thereof as is then completed.(2) On the application of the Company the Minister may by order extend the period referred to in subsection (1) of this section. ”[20]Section 24 deals with the construction of tidal works. That reads where material, “24 (1) A tidal work shall not be constructed, altered, extended, enlarged, replaced or relaid except in accordance with plans and sections approved by the Board of Trade and subject to any conditions and restriction imposed by the Board before the work is begun.”[21]Section 40 provides the power to develop works and lands and reads, “40 (1) Subject to the provisions of this Act the Company may lay out and develop any lands to which this section applies (or any part of Works Nos. 1 to 9 inclusive) by the erection thereon of buildings and other structures and works, including without prejudice to the generality of the foregoing, car parks (either over or underground), filling stations, hotels, restaurants, club premises, offices, theatres, cinemas, casinos, dance halls, ice rinks, playgrounds, boatyards, bowling alleys, shops, houses, flat and other residential accommodation and in connection with such development may construct, sewer, pave, flag, channel and kerb streets, bridges, and ways: Provided that any development authorised by this section shall not by virtue only of this section be deemed for the purposes of the Town and Country Planning General Development Orders, 1963 to 1965 and any enactment amending or replacing the same, to be carried out in pursuance of an Act which designated specifically both the nature of the development and the land upon which it may be carried out. 40(2) The lands to which this section applies are those parts of the foreshore, the bed of the sea and other lands which lie between Works 1 and 3 and are situate within the limits of deviation of Works 7 and 8 and landward of those works (but excluding any part of Undercliff Walk)” Provided that any development authorised by this section shall not by virtue only of this section be deemed for the purposes of the Town and Country Planning General Development Orders, 1963 to 1965 and any enactment amending or replacing the same, to be carried out in pursuance of an Act which designated specifically both the nature of the development and the land upon which it may be carried out. 40(2) The lands to which this section applies are those parts of the foreshore, the bed of the sea and other lands which lie between Works 1 and 3 and are situate within the limits of deviation of Works 7 and 8 and landward of those works (but excluding any part of Undercliff Walk)”[22]Section 52 provides the power to sell or lease which is material to the sub lease to the second defendant and provides the mechanism under which the second defendant has the same powers as the first defendant. Section 57 contains provisions relating to the construction, use and maintenance of works.[23]Section 59 (1) provides a restriction on the height of construction so that any new development is no higher than that part of the cliff face which is immediately to the north of the development. That has been waived in relation to the development which has planning permission including the 40 storey tower.[24]There is further provision that none of the rights of the Crown be prejudiced (Section 68), that the company is not to be exempt from the provisions of Sections 9 and 10 of the Harbours Act 1969 (Section 69), and that the provisions of the Town and Country Planning Act 1962 apply and may be exercised in relation to any land notwithstanding that the development is, or may be, authorised or regulated by or under the BMA (Section 70).

The Marine and Coastal Access Act 2009

[25]The Marine Management Organisation (MMO) has delegated authority from the Secretary of State with wide powers in relation to marine management and the licensing activities including the construction of tidal works.[26]Under Section 14 of the MCAA the Secretary of State may enter into an agreement with the MMO authorising it to perform any marine function of the Secretary of State in relation to the UK marine area. A marine function is, “Any function which relates to and whose exercise is capable of affecting the whole or any part of the UK marine area.”[27]Part 4 of the MCAA gives wide powers to licence marina activities. The licensable marina activities are defined in Section 66. That provides, where material, “For the purposes of this Act it is a licensable marine activity to do any of the following… 7. To construct, alter or improve any works within the UK marine licensing area either- a) In or over the sea, or b) On or under the sea bed.”[28]The MCAA establishes a statutory scheme for licence applications under Section 67, including the payment of fees, if required. Specific provision is made for the publication of applications for licences under Section 68 by the relevant licensing authority.[29]Section 69 deals with the determination of applications. It requires that the MMO must have regard to, “(1) in determining an application for a marina licence (including the terms on which it is to be granted and what conditions, if any, are to be attached to it) the appropriate licensing authority must have regard to- a) the need to protect the environment, b) the need to protect human health, c) The need to prevent interference with the legitimate uses of the sea, and such are the matters as the authority thinks relevant. (3)The appropriate licensing authority must have regard to any representations which it receives from any person having an interest in the outcome of the application.”[30]The MMO exercises the powers of the Board of Trade referred to under the BMA by an amending agreement made under Section 14 of the MCAA. The Claimant’s Case Issue One Is phase 1 of the development authorised by Section 5 (2) of the BMA ?

The Claimant’s Case

[31]The claimant submits that Section 5 contains a cascading sequence of powers. The reference to “make and maintain” is to be applied to the specific works itemised under that section. Sub-section (2) which provides for extending, enlarging, altering, replacing or relaying the said works is part of the “making and maintaining” referred to under sub-section (1). The two concepts of making and maintaining can overlap but can also be separate. Section 5(2) is not an independent and stand alone power. It is part of the whole and is to be read with the phrase “making and maintaining” referred to in sub-section (1).[32]Section 23 of the BMA is similarly indivisible.[33]Neither section provides the power to “make or maintain” a totally different structure to that which is specified under “the works”. That is particularly apparent when one considers section 40 which provides a separate power to develop land to which the section applies or any part of the works number 1-9 inclusive.[34]The claimant’s submission is that which is being constructed now is structurally distinct from the authorised works. What is being built is behind the shelter of the breakwater but is neither part of the breakwater nor an extension of it. It is simply adjacent to the breakwater.[35]Section 24 of the BMA provides the Board of Trade with the ability to approve tidal works. But if the work is not authorised by the BMA, the third defendant has no power to approve it. Issue Two Is Section 5 (2) subject to the time limit contained in Section 23 ?

Issue Two

[36]The claimant submits that the power to “make” under Section 5 is subject to the time limit for completion of the works, namely the 1st October 1979 set out in Section 23. That time limit does not impact upon the power to “maintain”. The time limit is there to provide for the completion of the construction works. The claimant submits that the control under Section 24 which requires the approval of the Board of Trade for any tidal works relates only to tidal works. Where there is reclaimed land, and works in relation to the inner harbour behind the lock, the land is clearly not tidal land are clearly not tidal works. The powers in Section 40 enable the developer to build on top of the works themselves, as is clearly intended with the construction of the RNLI building. However, the provisions do not include a power to build on the un-reclaimed sea bed of the outer harbour which is what is happening now. The current works include piling into the sea bed to support a structure within the outer harbour. Issue Three Whether Section 40 of the BMA is an exhaustive statement of the powers of the first and second defendants for building in the Marina

Issue Three

[37]The claimant accepts that the wording in Section 40 (1) is permissive but submits that the issue is whether the powers contained in the section are intended to be exhaustive. The claimant submits that the test is whether the statutory scheme of rights is inconsistent with extant common law rights. He relies upon the case of R (Child Poverty Action Group) v Secretary of State for Work and Pensions [2010] UK SC 54. In particular, he draws attention to paragraph 26 where Dyson JSC sets out the argument advanced by the Secretary of State that he had a common law right to recover overpayments under ordinary common law restitution principles. That right, it was accepted, could be displaced by statute but that could only be done expressly or by necessary implication. The question was whether, as a matter of statutory interpretation, Section 71 was an exclusive code for the recovery of overpayments. Where there were two remedies covering the same ground but which were inconsistent with each other then the common law remedy would almost certainly have been excluded by necessary implication. To do otherwise would circumvent the intention of Parliament.[38]The claimant relied also on the case of Marcic v Thames Water Utilities [2004] 2 AC 42. There the court held that the common law should not impose on sewerage undertaker obligations which would be inconsistent with the statutory scheme since that would run counter to the intention of Parliament. As a cause of action in nuisance would be inconsistent with the statutory scheme, there was no room for a common law cause of action in nuisance.[39]Further, whilst it was accepted that one should only look at parliamentary materials exceptionally, here the extra material could identify the mischief to which Section 40 was directed. Issue Four Whether Part 4 of the Marine and Coastal Access Act can authorise that which is not permitted under the 1968 Act ?

Issue Four

[40]The claimant cites the Harbours Act 1964 as providing an example of a statutory scheme where there is express power to override a local act. Section 14 of the Harbours Act provides for the making of a harbour revision order. Under schedule 2 to the Act, in paragraphs 3 and 4, there are express powers to vary or abolish duties or powers “imposed or conferred on the authority by statutory provisions of local application affecting the harbour” (Section 3) and imposing or conferring on the authority… duties or powers… either in addition to or in substitution for duties or powers imposed or conferred as mentioned in paragraph 3 of the above.[41]By contrast Section 65 of the MCAA sets out the requirement for a licence but contains no provision to override the local act. Issue Five Was the claim brought promptly?

Issue Five

[42]The claimant submits that the decision under challenge is that dated 19th December 2013 and the carrying out of the development which began on the 16th January 2014. There is no challenge to the earlier planning permissions, the licence issued under the MCAA or the waiver decisions. Professor Watts had raised issues about the BMA in his letter to the third defendant on the 7th May 2013. Their reply on the 16th July did not respond to those points. The letter from the claimant’s solicitor dated the 30th October 2013 pointed out that the matter was governed by the BMA and what was being questioned was the lateral extent of the proposed works. The reply to that letter dated 19th December 2013 stated that the BMA did not affect or govern the MMO’s consideration or determination of the marine licence application. No reference was made to the Section 24 BMA consent that had been issued that day. The whole situation was, therefore, unclear as to what was happening.[43]There were further consents given to waive the depth of water in part of the Brighton Marina Harbour on the 16th January 2014. What the claimant was seeking to do, therefore, was to clarify the legal situation to ascertain whether there was a case that could be properly challenged. He was not being inactive but establishing the situation. Issue Six Does promptness apply?

Issue Six

[44]Although the time period for planning cases has been codified under CPR 54.5 so that challenges have to be brought with a period of 6 weeks this is not a case governed by CPR 54.5.[45]The witness statement of Richard Buxton, solicitor for the claimant, makes it clear that he was not aware of the Section 24 consent until March 2014. It was only on the 12th March, as a result of a letter from Addleshaw Goddard, that he became apprised of that situation.[46]Had proceedings been commenced earlier it would have made no difference as the contract for building out phase 1 of the outer harbour development was entered into on the 20th November 2013 so that the first and second defendants were committed from that date. EU Directive 2011/92/EU on environmental impact assessment is relevant. All that the claimant needs to do is to establish that he is within the scope of article 11. Where development consent for a project subject to the Directive exists public participation applies at all stages. Here, public participation applied to the section 24 consent. The jurisprudence of Uniplex applies which means that the claim can be brought within 3 months without the need to satisfy promptness. As a result there does not need to be a consideration of R (Berky) v Newport City Council [2012] EWCA Civ 378[47]The criteria for the grant of a licence are set out in Section 69 MCAA. One of those is the need to prevent interference with legitimate uses of the sea: see section 69(1)(c). Further, the MMO also has to have regard to the ongoing use of the works. Section 69(2) reads, “In the case of an application for a licence to authorise such activities as are mentioned in item 7 and section 66(1) the appropriate licensing authority must have regard (amongst other things) to the effects of any use intended to be made of the works in question when constructed, altered or improved.”[48]The requirement to take into account ongoing use is a new requirement. Issue seven What relief is appropriate?

Issue seven

[49]The claimant seeks a quashing of the Section 24 consent and an order prohibiting the first and second defendants to continue with their work. If the claimant is wrong on delay then he seeks a declaration which would be of assistance in relation to works yet to proceed in relation to phase 2.

The case for the first and second defendants

[50]The defendants make three over-riding points. The first is that the phase one works are subject to the section 24 consent and are positively authorised by BMA. Sections 5, 23 and 24 of the BMA are examples of sections seen in other acts which authorise alterations to works within the limits of deviation. What is happening is an enlargement of the authorised works.[51]Second, section 40 is not inconsistent with common law rights. It provides for development within its physical reach. Leaving what happens either side of that to the general law is not inconsistent.[52]Third, there has been considerable delay. Work has continued on site for a substantial period. The claimant’s submissions are contrary to the case of Berky. One is dealing here exclusively with a domestic case. Events leading up to the current JR proceedings are relevant to take into account: see Finn- Kelcey v Milton Keynes BC [2009] Env LR 17.[53]It is of note that the height restriction was lifted on the 17th November 2006 which permitted phase 2 including the 40 storey tower.

Statutory interpretation

[54]Phase 1 is positively authorised by the BMA. The relevant works are work number 6 and work number 8.[55]If the works were not completed by 1st October 1979 then the power to construct them ceased. If they were completed then Section 24 provides the power to extend or enlarge, subject to the need for consent from the Board of Trade. All tidal works would be subject to the development control regime.[56]Taking work 6 as an example there would be housing above and a car park below which could be underground. Both would be within the terms of section 40(1) of the BMA. The relevant wording of the section is not the reference to “lands to which this section applies” but to “any part of works numbers 1-9 inclusive”.[57]There is no need to take too technical an approach to the definition of the works. In any event what has been constructed as a pier comes within the definition. It is clear that the works were intended to create non marine development opportunities. Section 40 contains no prohibition on development outside the limits of Section 40 (2). The carrying out of development will require planning permission and a licence from the MMO. Provided those are both forthcoming, development will be lawful in accordance with the general law. The defendants do not accept that the case of ex-parte CPAG has any relevance to the present situation. This is not a case of extinguishment of common law powers because of inconsistency. Here, there is nothing inconsistent. The statutory scheme leaves owners of land with rights subject to statutory control. The same point applies in relation to the case of Marcic.[58]The defendants do not accept that there is any ambiguity so as to allow for reference to any parliamentary material. But if it was to be admissible the special report of the select committee does not assist the claimant. The extra material does not evidence a view that there is a need for any further sanction.[59]Part of the general law is the MCAA. The criteria for the grant of a licence are set out in Section 69. One of those is the need to prevent interference with legitimate uses of the sea: see section 69(1)(c). Further the MMO also has to have regard to the ongoing use of the works under s 69(2).

Delay

[60]The defendants maintain that the claimant does not have any 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 of the 19th December 2013.[61]The claimant has had numerous missed opportunities for acting earlier which are relevant to take into account on the issue of whether the claimant has acted promptly. As the decision in Finn Kelcey makes clear what is meant by promptly depends on all the relevant circumstances. That can include the knowledge of a resolution to grant permission even though time does not formally run until the grant of that permission. The authority of Finn Kelcey in the domestic context was regarded as undiminished in the case of R (Berky) v Newport City Council [2012] EWCA Civ 378.[62]There would be very substantial prejudice if the claim were to be permitted. There has been a very long gestation period for the claim so that what was estimated as £16 million having been spent in Mr Goodall’s first witness statement I was told in argument was now £30 million.[63]There is no allegation of breach of the public participation aspects of EU Law. The allegations made relate entirely to a domestic statute. Notwithstanding that, there was an environmental impact assessment for the 2012 planning application which led to the grant of permission in 2013.

Third defendant’s submissions

[64]The third defendant makes three general points. First, that it considered the consent under the BMA alongside the MCAA and, therefore, there is no conflict between the two. Second, no part of phase 1 is outside the limits of deviation. Third, that this is an exercise of construing a local act from the 1960s in 2014. There is a very different statutory framework now. That is important because to interfere then with the public right of navigation required an Act of Parliament. The BMA required the consent of the Board of Tradewhich would have been given against the background of the powers in the Coastal Protection Act 1949. Those have been superseded in the MCAA 2009.[65]The MCAA is not governed by the local act. Usually the third defendant will consider consents under a private act along side an application for a licence under the MCAA. Thereby conflict between the two is avoided. That process was followed here. It is difficult to see where conflict could arise in those circumstances.[66]If there was a conflict then all relevant considerations to be taken into account were taken into account under the MCCA. That is not to say that the BMA is irrelevant but that the focus should be on the licence which was granted by the third defendant which is not the subject of any challenge. The licence is the principal way in which Parliament has now chosen to manage marine schemes.

Delay

[67]The third defendant adopts the submission of the first and second defendants on the issue of delay. It should be an additional ground for refusal as it prejudices good administration.

Discussion and conclusions

[68]I propose to structure this part of the judgment so that it deals with, firstly, the issue of statutory construction and, secondly, the issue of delay. Those two issues subsume the various points that the claimant makes.

Statutory construction

[69]The Brighton Marina Act as is evident from its recital had amongst its objects the expansion of existing facilities for accommodation and enjoyment of tourists and visitors to Brighton. For that purpose the Brighton Marina Company was expressly authorised not only to construct the marina but also residential and other facilities through the works described within the Act and through reclamation of land from the sea where necessary. Phase 1 of the proposed development, as is apparent from the plans, is contained within the limits of deviation shown on the deposited plans and described in the deposited book of reference.[70]Section 5 of the BMA authorises the “making and maintaining” of the works set out within that section. Those include work numbers 6, 7 and 8, namely, a pier or breakwater, a reclamation embankment and a quay or wharf. They were completed before the end date of the 1st October 1979.[71]Under Section 5 (2) the first defendant has the power to “extend, enlarge, alter, replace or relay the same”. So far as the exercise of that power is concerned, in my judgment, it is not affected by the end date of the 1st October 1979. The claimant accepts that to a degree in that he accepts that for maintenance of the works because that is not dealt with expressly within Section 23 of the BMA that can be carried out at any time. That is clearly right. However, the Act goes further. Section 5(2) is dealing with the future powers of amendment of the works carried out. The words “the same” can only refer to the works which are itemised in section 5(1). The act of replacement which is envisaged under section 5(2) can only come after the works have been completed or at least substantially completed. The same would apply to any of the other words used to amend the works as constructed. Given the object of the statutory scheme it was sensible for the Act to make provision for the range of possibilities set out in Section 5(2) to take place after 1st October 1979. If it had been the intention to make no such provision that would stymie the clear statutory purpose of bringing to Brighton the expansion of facilities for the accommodation and enjoyment of tourists, visitors and residents. Both in terms of the language used and the purpose of the statute the meaning of section 5 is, in my judgement, clear. It follows that it provides a continuing power to, amongst other things, extend or enlarge any section 5(1) work.[72]Section 40 of the BMA takes matters still further. That gives the power to lay out and develop any part of works numbered 1-9 inclusive by “the erection thereon… of car parks (either over or under ground).” The fact that the piling works are associated with an underground structure to be used for car parking purposes does not take the works outside the statutory provisions. Indeed the converse: given the language of the statute the works would clearly be within the statutory provisions provided they can come within the descriptions in Section 5(2).[73]The second witness statement of Mr Goodall who is the managing director of Brunswick Developments and a director of the first and second defendants sets out the works which are being undertaken. He says as follows:
“As the existing pier is being extended so as to produce a platform on which buildings F1 and F2 will eventually be located. Within the extended pier will be located the underground car park. The extended pier will continue to serve at all times existing break water function”
[74]Mr Goodhall further exhibited photographs to his second witness statement which are helpful in showing the progress and extent of the works which are currently ongoing.[75]The claimant submits that what is taking place is not an extension or alteration of the existing works but the construction of an entirely separate and different structure. It is an engineered basement to house an underground car park and platform for further development. It is phase 1 of a proposed residential development above the structure. In the alternative, even if part of the current work comprises extending the pier or breakwater that is ancillary to the main purpose which is development within Section 40. In support of those submissions the claimant relies upon the witness statement of Professor John Watts who was the project architect of the Brighton Marina scheme.[76]It is highly material that the power in Section 5 is wide. Provided the work takes place within the lines of deviation, extension, enlargement, alteration and replacement of the originally authorised and completed works is, in my judgement, permitted. That is consistent with the statutory object as set out above. It follows that what is being constructed at present is within what is permitted under Section 5 of the BMA.[77]As the Act is intended to promote mixed use development including residential development as well as the creation of a harbour, to refer to the works of extension and/or enlargement as merely ancillary to the main purpose of the works is clearly wrong.[78]The defendants observe that, as a matter of ordinary meaning, the definition of pier is a “Solid structure extending into the sea or a river to protect a harbour and form a landing stage for vessels, a breakwater a mole. Also a similar structure supported on pillars of girders for use as a pleasure promenade or landing stage.” ”[79]The built form described in Mr Goodall’s witness statement fulfils the protective breakwater function of dividing the marina from the outer harbour, is laid out in a manner which will be able to accommodate future development as expressly contemplated within Section 40 and has a promenade function as described. It comes within the description of a pier.[80]The claimant contends that Section 40 is the main issue. It has to be construed as including an implied prohibition on developing land outside the limits of Section 40 (2). That has four geographical limitations i) between works numbers 1-3, ii) within the limits of deviation works 7-8, iii) landward of works 7 and 8, iv) excluding Undercliff Walk.[81]Section 40(1) is permissive in its language as to the fact and nature of development which can occur on any part of works number 1-9 inclusive. As set out the BMA authorised the recovery of land from the sea both for the creation of a marina and for mixed use development associated with the marina but for the benefit of Brighton. As the defendants submit it is a reasonable inference looking at the scheme of the Act that the marina would be financed by the non marine development. Section 40 makes it plain that the reclaimed land is available for that purpose. That is re-enforced by the side note to Section 40 which makes clear that there is the power to develop works and lands. The owner of the land is thus given a wide permissive power to develop and reclaim land as he sees fit subject to the requirements to comply with the Town and Country Planning Act, as provided for later on in the Act, and that the development takes place within the geographic limitations as set out. In the context of this claim the first and second defendants are, therefore, able to build within the two main harbour arms, within the limits of deviation of works number 7 and 8 and landward of those works.[82]The claimant submits that sections 40 and 52 of the BMA displace the common law power of the first and second defendants as owners of the land to build on it as they see fit. I reject that submission. The cases upon which the claimant relies are concerned with where the common law has been excluded by a statutory code concerned with inconsistent remedies. In ex p CPAG section 71 of the Social Security Administration Act 1992 conferred on the Secretary of State a statutory power to recover subject to specified conditions a payment of any relevant benefit from any person who misrepresented or failed to disclose any relevant fact where payment would not have been made but for the misrepresentation or non disclosure. As Lord Brown remarked [13B], “What in short is striking about Section 71 is not its omission of an express exclusion of common law rights but rather its omission of any provision recognising or giving effect to such rights.”[83]Lord Dyson dealt with the position at paragraph 33, “If two remedies cover precisely the same ground and are inconsistent with each other, then the common law remedy will almost certainly have been excluded by necessary implication. To do otherwise would circumvent the intention of Parliament,. A good example of this is Marcic where a sewerage undertaker was subject to an elaborate scheme of statutory regulation which included an independent regulation with powers of enforcement whose decisions were subject to judicial review. The statutory scheme provided a procedure for making complaints to the regulator. The House of Lords held that a cause of action in nuisance would be inconsistent with the statutory scheme. It would run counter to the intention of Parliament.”[84]That is entirely different to the instant case. Here, there is nothing inconsistent. The owners of the land are left with rights subject to statutory control. The same point applies in relation to the claimant’s submissions based on the case of Marcic (supra).[85]The claimant submits that the third defendant had no power to issue the consent under section 24 of the BMA for the same reasons that section 5 does not authorise the development. For reasons that I have set out, in my judgment, section 5 does authorise the development. The third defendant was, therefore, acting lawfully in issuing the consent. It is accepted by the claimant that the third defendant had the power to grant the consent.[86]In my judgment there is no conflict between the BMA and the MCAA. The problems that the claimant was concerned about simply do not arise. But, even if there was such a conflict, all of the relevant considerations would be taken into account by virtue of the powers of the third defendant under the MCAA.[87]Because the meaning of the statute is clear there is no need to refer to extraneous material.[88]It follows that on all matters of statutory interpretation I find that the claimant has failed in its challenge.

Delay

[89]I accept that the claim is not a challenge to a planning permission and, therefore, the six week period under CPR 54.5 within which a claim has to be brought does not apply.[90]However, it is clear that the reason for issuing the challenge on the last day within the three month period has to be looked at in all the circumstances of the case.[91]The claimant has contended that there is an EU element because of the application of Directive 2011/92/EU. There is no allegation here of a breach of public participation aspects of EU Law. The allegation relates entirely to a domestic statute. Nevertheless, an EIA was submitted with the 2012 application for planning permission. The public had the opportunity to participate in that process. The application for consent under section 24 of the BMA raises no new issues. It follows that this is not a case which can be said to come within Article 11 of Directive 2011/94/EU. It follows that Uniplex does not apply and the claimant has to satisfy the requirement of promptness.[92]On that, the decision of the Court of Appeal in Finn Kelcey v Milton Keynes [2008] EWCA Civ makes it clear that there is an expectation of promptness which is to be judged against the entire background of the case. That approach was affirmed in R v Berky where Carnwath LJ and Moore-Bick LJ rejected the proposition that a principle of certainty prevented any reduction of the three month time limit in respect of domestic grounds of challenge.[93]The full circumstances of the case are as follows, i) On the 4th July 2006 planning permission was granted for mixed use development at Brighton Marina West Quay and adjoining land. The claimant contested the grant of planning permission by contending that the proposed scheme would conflict with the BMA. ii) On the 17th November 2006 consent was granted to the first defendant under Section 55 (1) of the BMA to vary the height restriction contained in Section 59 (1) of the BMA to permit implementation of the 2006 planning permission. iii) On the 22nd February 2007 DEFRA granted a marine licence for the development; iv) By 2008 as evidenced in a letter from the interested party dated 8th September 2008 steps had been taken to implement the planning permission including the construction of the access road. v) On the 12th February 2012 the interested party approved a non-material amendment to the 2006 planning permission. vi) On the 7th May 2013 Professor Watts wrote to the third defendant about the proposed test piling. vii) On the 13th May 2013 the interested party granted permission for variation of condition 70 on planning permission 2006/01124. viii) On the 16th July 2013 the third defendant responded to Professor Watts informing him of the issue of a marine licence for the ground investigation work for Brighton marina. The MMO expressed the view that they did not consider ground investigation works would adversely affect the marina. ix) On the 23rd August 2013 the first defendant made an application to the third defendant for a marine licence under part 4 of the MCAA to undertake phase 1 of the outer harbour development at Brighton Marina. The public register records an intention to implement the commencement of piling on the 6th January 2014. x) On the 30th October 2013 the claimant’s solicitors were instructed and wrote to the third defendant about the outstanding marine management licence application. They were concerned about the application of the BMA and Directive 2011/92/EU. xi) On the 19th December 2013 the third defendant granted consent under Section 24 of the BMA for the works defined in the marine licence application which accompanied the application under Section 24 of the BMA. The letter says, “This consent accompanies the favourable marine licence determination made by the MMO under part 4 of the Marine and Coastal Access Act 2009 for the works.”[94]It is against that background that the concept of promptness has to be judged. In my judgment it is clear that the claimant was well aware of the issues that he was seeking to raise and, indeed, was raising comparable points as long ago as 2006. Experienced environmental solicitors were instructed and were on the record from October 2013. In those circumstances to wait until the last day of the three month period before bringing the claim is not acting promptly.[95]Further, it is clear that there has been significant investment in bringing forward the redevelopment scheme thus far. Even if the figure is that set out in the witness statement of Mr Goodall, which is that £16 million has been spent, that indicates a very substantial prejudice that would be occasioned should this claim be permitted. With that scale of investment it is no answer for the claimant to say that incurring such expenditure is simply a commercial risk inherent in the development. At the very least the claimants could have put the first and second defendants on notice of their concerns and a prospective challenge.[96]In those circumstances I find that the claim has not been brought with appropriate promptness.[97]As it is I would have dismissed this application on all grounds.[98]In the circumstances it is not appropriate to grant any declaration as to the meaning of the BMA which might affect the progression of phase 2. As this judgment deals with the interpretation of the BMA which is not covered in any previous judgment it can be used to guide any prospective development, if necessary.[99]This claim fails. I invite submissions as to the form of final order and costs.

Cited in 2 later judgments