Town and country planning – Enforcement action – Planning control – Claimant applying for judicial review of decision of defendant local planning authority that area occupied by barge moored adjacent to pier fell outside planning control – Whether area of sea bed above which barge stationed formed part of “land” subject to planning control and constituted material change of use requiring planning permission – Application dismissed
The Bibby Stockholm was a barge which had been moored in Portland Harbour, Dorset to accommodate asylum-seekers. The barge was moored adjacent to a pier above a part of the sea bed which was never exposed during the ebb and flow of the tide. That area always lay below the low water mark (LWM).
The claimant was a local resident. She brought an application for judicial review contending that the area of the sea bed above which the barge was stationed formed part of the “land” which was subject to planning control under the Town and Country Planning Act 1990 and constituted a material change in the use of that land so as to constitute “development” requiring planning permission.
On that basis, she said that it was open to the defendant local planning authority to consider taking enforcement action for any breach of planning control in respect of that use under Part VII of the 1990 Act. The claimant sought a declaration that defendant erred in law in deciding that the area occupied by the barge fell outside planning control.
The defendant, together with the second and third interested parties (the Secretary of State for the Home Department and the Secretary of State for Levelling Up, Housing and Communities), contended that planning control under the 1990 Act did not extend below the LWM. The first interested party harbour authority did not take part in the proceedings.
Held: The application was dismissed.
(1) Although the finger pier to which the barge was moored was an accretion from the sea within section 72 of the Local Government Act 1972 and so fell within the defendant’s area, neither the area of the sea bed above which the barge was moored, nor Portland inner harbour, nor the “inner waters” in Weymouth bay extending to the baselines of the territorial sea, formed part of the defendant’s area. A barge or ship was a chattel. It could move or be towed to a different location. Even if a ship or barge be moored in one location for a sufficiently long period of time that its occupier was in rateable occupation of the underlying soil and so liable for business rates, the vessel did not cease to be a chattel. A boat moored to a river bed, even for a lengthy period of time, did not become a fixture and therefore part of, and an addition to, the land: Holland v Hodgson (1872) LR 7 CP 328, Chelsea Yacht and Boat Co Ltd v Pope [2000] 2 EGLR 23 and Rudd (Valuation Officer) v Cinderella Rockerfellas Ltd [2003] EWCA Civ 520; [2003] PLSCS 88; [2003] 1 WLR 2423 considered.
In any event, that would be insufficient to make the location of the barge subject to planning control. It was not enough that a site fell within the area of a local planning authority. It also had to constitute “land” as defined in section 336(1) of the 1990 Act. That definition was expressed in narrower terms than the Scottish definition, in that it did not include the words “land covered by water”. There was no dispute that land covered by a lake or by a river within the area of a local planning authority was a corporeal hereditament and fell within “land” in the English planning statute. But the narrower wording of the English definition lent no support to the claimant’s argument that the English planning regime, unlike the Scottish regime, applied to the sea bed beyond the LWM: Argyll and Bute District Council v Secretary of State for Scotland (1976) SC 248 considered.
(2) A local planning authority did not have power to serve an enforcement notice in relation to development outside its area, even if that development had an impact inside its area. The authority which had the power to serve an enforcement notice was the planning authority for the district in which the development had occurred (section 1(1) and paragraph 11 of schedule 1 to the 1990 Act). The claimant’s suggestion that the defendant could issue an enforcement notice in relation to development in Portland Harbour depended upon the proposition that a local planning authority had a general power to take enforcement action against development outside its area in, for example, the area of an adjoining district. That was contrary to the statutory scheme. The purpose upon which the claimant relied could not be found in the language used by parliament: District Council v Krushandal [1999] JPL 174, R (North Wiltshire District Council) v Cotswold District Council [2009] EWHC 3702 (Admin) and Fenland District Council v CBPRP Ltd [2022] EWHC 3132 (KB) considered.
Further, the claimant’s reading was inconsistent with the language used by parliament, which confined planning control to “land”, including “tidal lands”, but not the sea bed below the LWM. A purposive construction could not involve rewriting the legislation.
(3) An allegation that an authority had failed to take action depended upon a correlative obligation or duty to take that action. But the claimant had not identified any timescale within which the defendant was legally obliged to reach a decision on enforcement. Accordingly, she had not advanced any proper legal basis for saying that the defendant had acted unlawfully, and that the court was entitled to intervene, because the defendant had not already reached a decision on enforcement action or issued an enforcement notice.
(4) The claimant submitted that the 1990 Act failed to give effect to the requirement in article 2(1) of the EIA Directive (Directive 2011/92/EU) that there be an assessment of the likely significant effects of relevant projects on the environment: see Marleasing SA v La Comercial Internacional de Alimentacion SA (Case C-106/89) [1990] ECR I-4135.
The positioning of the barge in Portland Harbour and its use to accommodate asylum seekers, even for 18 months or so, did not qualify as a project for the purposes of the EIA Directive. In any event, Marleasing could not be used to read words into legislation that were at odds with the fundamental principles of the statute, or which went against its grain or fundamental or essential principles. Planning control was only concerned with the carrying out of operations on, and the use of, “land”: Ghaidan v Godin-Mendoza (FC) [2004] 2 EGLR 132 and Vidal-Hall v Google [2016] QB 1003 considered.
Alex Goodman KC, Penelope Nevill, Fiona Petersen and Alex Shattock (instructed by Deighton Pierce Glynn) appeared for the claimant; Richard Wald KC and Jake Thorold (instructed by Dorset Council) appeared for the defendant; The first interested party did not appear and was not represented; Guy Williams KC and Nina Pindham (instructed by the Government Legal Department) for the Second Interested Party; Richard Honey KC and Stephanie Bruce-Smith (instructed by the Government Legal Department) appeared for the third interested party; Sasha Blackmore (instructed by Marine Management Organisation) appeared for the Marine Management Organisation.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of Parkes) v Dorset Council
