Powell, R (on the application of) v The Brighton Marina Company Ltd & Ors

Where works authorised by a private Act have been completed, a continuing power to extend, enlarge, alter, replace or relay them may remain available if the statutory language and purpose support that construction. The power is not necessarily spent when the statutory deadline for completing the original works expires.

A permissive development power does not impliedly exclude the landowner’s common-law rights merely because it specifies geographical limits. Exclusion requires inconsistency with the statutory scheme. Judicial review must also be brought promptly. The ordinary three-month period does not remove that requirement where the challenge concerns domestic law and no EU public-participation right is engaged.

The claimant, a local resident, challenged a decision by the Marine Management Organisation to grant consent under Brighton Marina Act 1968 section 24 and challenged works undertaken by the first and second defendants for phase 1 of a marina redevelopment. The challenge concerned whether the works were authorised by sections 5 and 40 of the Act, whether the section 5(2) power was time-limited, whether the Marine and Coastal Access Act 2009 could authorise works not permitted by the 1968 Act, and whether the claim was brought promptly.

The claimant also sought a declaration concerning phase 2. The central issues were the proper construction of the private Act and the effect of delay and prejudice on the claim.

1. Statutory construction. Sections 5(1) and 5(2) of the Brighton Marina Act 1968 authorised the original works, including the pier or breakwater, reclamation embankment and quay or wharf. Those works had been completed before the statutory completion date. Section 5(2) therefore provided a continuing power to extend or enlarge them; the 1 October 1979 deadline did not cut down that later power. The words “the same” referred to the completed works listed in section 5(1), and the construction accorded with the Act’s purpose of enabling marina, residential and other facilities.
2. The phase 1 works fell within the statutory powers. Their form continued the breakwater function and created an extended pier capable of supporting development and an underground car park. Section 40 supplied a permissive power to develop works and lands, subject to planning and other statutory controls. It did not impliedly prohibit development outside the geographical description in section 40(2), nor did sections 40 and 52 displace common-law rights. R (Child Poverty Action Group) v Secretary of State for Work and Pensions [2010] UKSC 54 and Marcic v Thames Water Utilities [2004] 2 AC 42 concerned inconsistent statutory and common-law remedies and did not govern this case.
3. There was no conflict between the 1968 Act and the Marine and Coastal Access Act 2009. The section 24 consent was lawful because section 5 authorised the development. Extraneous parliamentary material was unnecessary because the statutory meaning was clear.
4. Delay. The six-week period in CPR 54.5 did not apply, but promptness remained required. Article 11 of Directive 2011/92/EU and Uniplex did not apply because no EU public-participation breach was alleged and the section 24 consent raised no new issues beyond the earlier environmental assessment. Applying Finn-Kelcey v Milton Keynes BC [2009] Env LR 17 and R (Berky) v Newport City Council [2012] EWCA Civ 378, the claim was not brought promptly. The claimant knew of the substance of the objections, yet waited until the last day of the three-month period; substantial investment created serious prejudice.
5. The claim failed on every ground. No declaration concerning phase 2 was granted. Final order and costs were left for submissions.

First-instance judicial review. The judgment records no prior appellate decision in this dispute.