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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Powel v The Marine Management Organisation [2017] EWHC 1491 (Admin) (23 June 2017) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2017/1491.html Cite as: [2017] EWHC 1491 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
ROBERT POWELL |
Claimant |
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- and - |
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THE MARINE MANAGEMENT ORGANISATION |
Defendant |
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(1) BRIGHTON MARINA COMPANY LTD (2) THE OUTER HARBOUR DEVELOPMENT PARTNERSHIP LTD |
Interested Parties |
____________________
Sasha Blackmore (instructed by Browne Jacobson LLP) for the Defendant
Richard Drabble QC (instructed by Addleshaw Goddard) for the Interested Parties
Hearing dates: 22nd and 23rd March 2017
____________________
Crown Copyright ©
Mr Justice Holgate:
Introduction
(1) The grounds of challenge
(2) The application for a marine licence and the decision-making process
(3) "A Sea Change A Marine Bill White Paper"
(4) The statutory framework
(5) Grounds 1 and 3
(6) Ground 2
The grounds of challenge
"(1) In determining an application for a marine 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 legitimate uses of the sea, and such other matters as the authority thinks relevant."
(1) The MMO failed to consider whether the phase 2 works would constitute an actionable interference with public rights of navigation;
(2) Applying the correct legal test, the proposed works would unlawfully interfere with public rights of navigation and the court should so declare;
(3) Where proposed works unlawfully interfere with public rights of navigation, the MMO was not empowered to grant a marine licence under section 71 of the MCAA 2009 unless a harbour revision is also made extinguishing those rights or permitting that interference.
As I explain below, the seemingly absolute approach in ground 3 was subsequently modified.
The application for a marine licence and the decision-making process
(i) The navigation channel in the Outer Harbour is clearly marked by buoys and the channel itself is dredged [the Statement made no proposal to alter those arrangements for the channel];
(ii) The development will not encroach upon the navigation channel at any time during or after construction;
(iii) The spending beach is not safe to navigate. There are many concrete and steel projections related to the original marina construction works which protrude from the beach and constitute hazards to navigation. There are warning signs in place;
(iv) The spending beach is not dredged as that would negate its purpose of absorbing energy;
(v) At low tide most of the beach is exposed and areas outside the dredged navigation channel are too shallow for navigation;
(vi) There are akmons on the perimeter of the spending beach which present hidden obstructions;
(vii) The Harbour Master advises that the area is not safe for navigation and the use of the area is restricted by bye-laws;
(viii) The new buildings are to be protected by a series of piles attached to the side of the new support structures to resist impact damage, and booms will be installed to prevent inadvertent access to the area beneath the development.
(i) John Davey the Harbour Master
The function of the spending beach, to dissipate the force of waves entering the Outer Harbour, would not be harmed by phase 2. Access to the spending beach is restricted to authorised personnel. Because the spending beach is hazardous for vessels and the general public, no one would suffer loss of access as a result of the development. Although phase 2 would use a small part of the water area in the Outer Harbour, this area is outside the navigable channel, the water depth is low, it is adjacent to navigational hazards and it is therefore unsafe for use. A CCTV survey during June and July 2015 showed only one or two vessels in that area over that period. Fishing, diving and the propelling of a vessel other than by engine is prohibited in the area and so there would be no loss of amenity for small vessels or fishermen;
(ii) Brighton Marina Yacht Club
Because of the large tidal range, the navigable channel, which is dredged and has a safe depth, is marked by buoys. Users of the harbour are advised not to stray from this channel, especially at low water. The spending beach is not used by yachts as grounding in this area is not recommended;
(iii) The Royal National Lifeboat Institution
The spending beach has a number of underwater obstacles and silt which makes the area un-navigable for water users. The RNLI has no operational need to use that area;
(iv) Marine and Coastguard Agency
The proposal would be unlikely to have an adverse impact on safety of navigation provided that all maritime safety legislation is followed;
(v) Trinity House
Trinity House had no objections to raise and no requirements for marking.
"In determining marine licence applications, the MMO must have regard to the need to protect the environment, human health, and to prevent interference with legitimate uses of the sea (and such other matters as thought relevant) (section 69 MCAA).
The MMO received representations regarding disruption to existing navigational rights by the construction of the Phase 2 towers. MMO has consulted widely on the application with advisors on navigational safety including the BMHM, RYA and MCA. The applicant has also provided a detailed statement regarding the potential navigational impacts, which includes correspondence from the Brighton Marina Yacht Company, Royal National Lifeboat Institute and Premier Marina (Brighton) stating that they consider there are no navigational impacts from the proposed Development.
Whilst it is not for the MMO to conclusively determine the scope of public rights of navigation, it does take into account all legitimate uses of the sea and all other relevant considerations. In making its determination the MMO has had regard to public representations alongside the views of MMO advisors. The MMO is satisfied that the proposed Development will not interfere with public rights of navigation or prevent the existing safe navigation within Brighton Marina. Furthermore, it is the harbour master's statutory obligation to manage navigational safety within the Marina and is required (under the conditions of the marine licence) to regularly notify mariners during the proposed development." (emphasis added)
"3.1 You also made representations regarding the disruption to existing navigational rights by the construction of the Phase 2 towers. MMO has consulted widely on the application with experts on navigational safety including the Brighton Marina Harbour Master, the Royal Yachting Association and Marine and Coastguard Agency. The licence holder has also provided a detailed assessment regarding the potential navigational impacts, which includes correspondence from the Brighton Marina Yacht Company, Royal National Lifeboat Institute and Premier Marina (Brighton) stating that there are no impacts. Whilst it is not for the MMO to conclusively determine the scope of public rights of navigation, it does take into account all legitimate uses of the sea and all other relevant considerations.
3.2 In making its determination the MMO has had regard to your comments alongside the expert views of its advisors provided through consultation. The MMO assesses each application on a weight of evidence approach and is satisfied that the licensed activities will not interfere with public rights of navigation or prevent the existing safe navigation within Brighton Marina. Furthermore, it is the harbour master's statutory obligation to manage navigational safety within the Marina." (emphasis added)
"A Sea Change A Marine Bill White Paper"
"The current approach to authorising marine works in or near port or harbour areas is complicated and often archaic some of the legislation dates back two centuries or more. We want to ensure wherever possible that a straightforward and consistent system of regulation applies in future. We also want to reduce unnecessary bureaucracy, and provide a clear basis for the implementation of European environmental rules."
The Statutory Framework
"It is the duty of the MMO to secure that the MMO functions are so exercised that the carrying on of activities by persons in the MMO's area is managed, regulated or controlled
(a) with the objective of making a contribution to the achievement of sustainable development (see subsections (2) and (4) to (11)),
(b) taking account of all relevant facts and matters (see subsection (3)), and
(c) in a manner which is consistent and co-ordinated (see subsection 12)) "
Thus, the promotion of "sustainable development" lies at the heart of the MMO's statutory functions. This is similar to the policy and statutory objectives underpinning the terrestrial planning system (see the National Planning Policy Framework and section 39 of the Planning and Compulsory Purchase Act 2004). This concept of sustainable development is not defined in the statute, but is generally understood to refer to "development which meets the needs of the present without compromising the ability of future generations to meet their own needs" (the 1987 Report of the World Commission on Environment and Development the Brundtland Report).
"For the purposes of subsection (1)(b), the facts and matters that may be taken into account include each of the following
(a) scientific evidence, whether available to, or reasonably obtainable by, the MMO;
(b) other evidence so available or obtainable relating to the social, economic or environmental elements of sustainable development;
(c) such facts or matters not falling within paragraph (a) or (b) as the MMO may consider appropriate "
Thus it is made plain that the MMO is given a discretion as to the matters it will take into account in exercising its functions, which ordinarily may only be challenged on grounds of irrationality. That test may be satisfied if the court considers that in the circumstances of the case, a matter was so "obviously material" to a particular decision that a failure to take it into account would not be in accordance with the intention of the legislation (In re Findlay [1985] AC 318, 333-4; Creed NZ v Governor General [1981] 1 NZLR 172; R (Plant) v Lambeth LBC [2017] PTSR 453 at paragraphs 62 to 63).
"In determining an application for a marine 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 legitimate uses of the sea, and such other matters as the authority thinks relevant."
"In the case of an application for a licence to authorise such activities as are mentioned in item 7 in section 66(1), the appropriate licensing authority must have regard (among other things) to the effects of any use intended to be made of the works in question when constructed, altered or improved."
"(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.
(4) A licensing authority may
(a) from time to time consult any person or body it thinks fit as to the general manner in which the licensing authority proposes to exercise its powers in cases involving any matter in which that person or body has particular expertise;
(b) in relation to any particular application, consult any person or body which has particular expertise in any matter arising in relation to that application.
(5) If the appropriate licensing authority consults any person or body under subsection (4)(b), it must give the applicant the opportunity to make representations to the licensing authority about any observations made by the person or body."
"the carrying on of the activity has not caused, and is not likely to cause, any of the following
(a) serious harm to the environment;
(b) serious harm to human health;
(c) serious interference with legitimate uses of the sea."
Thus, section 90(3) invokes the same three objectives as in section 69(1), and applies tests of serious harm to either the environment or human health, or serious interference with legitimate uses of the sea.
"(a) serious harm to the environment;
(b) serious harm to human health;
(c) serious interference with legitimate uses of the sea."
"(a) harm to the environment;
(b) harm to human health;
(c) interference with legitimate uses of the sea."
A remediation notice may require the person to whom it is given to take "remedial or compensatory steps" for (inter alia) "preventing interference with legitimate uses of the sea" or "preventing or minimising, or remedying or mitigating the effects of" the "interference with legitimate uses of the sea". A remediation notice may also require the person served to pay to the MMO the reasonable expenses of any remedial or compensatory steps it takes for those purposes (section 91(7) to (9)).
"Extinguishing public rights of navigation for the purposes of works described in the order or works ancillary to such works, or permitting interference with the enjoyment of such rights for the purposes of such works or for the purposes of works carried out by a person authorised by the authority to carry them out."
Pursuant to The Harbours Act (Delegation of Functions) Order 2010 (SI 2010 No. 674), the functions of the Secretary of State in relation to harbour revision orders have been delegated to the MMO in England and Wales.
Grounds 1 and 3
"Legitimate uses of the sea include (but are not limited to): navigation (including taking any steps for the purpose of navigational safety); fishing; mineral extraction; and amenity use."
This passage further undermines the Claimant's argument. It is plain that the phrase "legitimate uses of the sea" is not limited to public rights of navigation. Moreover, the fact that Parliament had in mind matters such as amenity and fishing demonstrates that it did not use the word "interference" so as to connote an interference of an actionable kind in a court of law. Parliament did not express section 69(1)(c) so that it has the effect of requiring the MMO to consider whether in some cases a harbour revision order might be necessary.
(i) Proceedings brought by the Attorney General on behalf of the Crown in respect of its prerogative right of conserving navigation;
(ii) A relator action in the name of the Attorney General;
(iii) Proceedings brought by a local authority in the interests of the inhabitants of its area under section 222 of the Local Government Act 1972;
(iv) Criminal proceedings in respect of a public nuisance;
(v) Civil proceedings in nuisance by a private individual who suffers special damage beyond that suffered by the public generally.
In practical terms, whether a developer will apply for an order, such as a harbour revision order, to extinguish public rights of navigation will depend on the view it takes as to whether or not the development will involve an actionable obstruction of such rights.
"(1) A public authority must, in the exercise of its functions, have due regard to the need to
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it." (emphasis added)
Subsequent subsections elaborate on the content of this duty.
Ground 2
Conclusion
Application for permission to appeal