R (on the application of Powell) v Brighton Marina Co Ltd 2014 [EWHC] 2136 (Admin)

The claimant (P) sought to prevent the development of Brighton Marina, a large mixed residential and commercial re-development of part of the marina, which would also include the re-siting of the RNLI and other works including the construction of a large residential block of flats at the harbour edge.  Planning permission had been granted for the redevelopment as a whole some time previously, and the whole development had also been subjected to EIA assessment. The MMO, the third defendant, had granted a marine licence under the Marine and Coastal Access Act 2009 and also a consent under the Brighton Marina Act 1968 for the first phase of this scheme, which was essentially the construction of an engineered basement which would in due course facilitate further redevelopment including an underground car park.  P challenged only the consent under the Brighton Marina Act.  P also sought an order to prevent the first and second defendants (B and W) proceeding with the works that they had already initiated. P contended that the defendants’ actions were not permitted under the Brighton Marina Act 1968. The 1968 Act authorised B to construct a marina, and to reclaim land from the sea for that purpose.  It also envisaged development on the reclaimed lands, including residential and recreational facilities, including such as car parking.   Under section 28, it was required that that work was to be completed by 1^st October 1979.  It also restricted the geographical limits of the development.  P submitted that the construction, which was abruptly undertaken by B and W, was (1) restricted by the time limit of the completion date 1^st October 1979 (2) the redevelopment works contemplated were structurally distinct from works authorised under section 5 of the Act, as it was not an extension or alteration of the existing works and were merely ancillary and not within the authorisation Claim refused. Section 5, the court held, authorised a continuing power for the “making and maintaining” of the works set out in that section. Works under section 5(2) therefore were not subject to the end date of 1^st October 1979. Provided the work took place within the limits of deviation, then any extension, enlargement, alteration and replacement of the originally authorised works was permitted. The basement and car park was therefore within what was permitted under s.5. The court also held that the provisions in s.40 of the Act authorising mixed use development were permissive in their effect and were not to be read as displacing the rights of the owners of the land to use their land subject to the securing of necessary consents. Richard Drabble QC and Dan Kolinsky appeared for the First and Second Defendants Sasha Blackmore appeared for the Third Defendant