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

Under the Brighton Marina Act 1968, a statutory deadline for completing permanent works did not extinguish the continuing power to extend, enlarge, alter, replace or relay works already completed. The development power in section 40 applied to a completed pier as modified under section 5(2), provided the resulting structure remained within the statutory description and limits of deviation and obtained the required approvals. Section 40 defined development authorised by the Act but did not impliedly prohibit development outside its geographical limits; any required authority had to be obtained under another enactment. Phase I was therefore authorised, while the fact-sensitive public right of navigation issue concerning Phase II remained unresolved.

Robert Powell sought permission to apply for judicial review of the Marine Management Organisation’s decision to grant consent under section 24 of the Brighton Marina Act 1968 for Phase I of the Outer Harbour development at Brighton Marina. He also challenged the developers’ commencement and continuation of Phase I.

Patterson J refused permission by order dated 27 June 2014. Her judgment is reported at [2014] EWHC 2136 (Admin). The appeal concerned whether the Act’s completion deadline prevented later extension, enlargement or alteration of Work No. 6; whether Phase I was an authorised modification and development of that work; and whether section 40 exhaustively prohibited development outside its stated geographical limits. The parties also raised Phase II and the public right of navigation, but that issue depended on facts and degree.

Lord Justice Sullivan gave the leading judgment. Lord Justice Floyd and Lady Justice Arden agreed. The appeal was dismissed and permission to apply for judicial review was refused.

1. Time limit. The works authorised by section 5(1) had been completed in 1977. Section 23(1) did not prevent the continuing exercise, after 1 October 1979, of the section 5(2) power to extend, enlarge, alter, replace or relay completed permanent works. The language of section 5(2) and the statutory purpose supported that construction.
2. Statutory controls. The continuing power remained subject to the relevant safeguards, including approval under section 24 for tidal work, the Corporation’s consent under section 58, and planning permission under section 22 of the Act.
3. Phase I. Sections 5 and 40 had to be read together. The power under section 40(1) to develop any part of Works Nos. 1 to 9 applied to Work No. 6 as extended, enlarged or altered under section 5(2), because the definition of works in section 4(1) included such modified works. The resulting structure had to remain within the description of a pier or breakwater and the applicable limits of deviation. The Phase I works satisfied that requirement and were authorised by sections 5(2) and 40(1).
4. Section 40. Section 40 defined the development permitted by the Act, but did not impliedly prohibit development outside its geographical limits. Any development outside those limits requiring statutory authorisation had to be authorised under another enactment, including where applicable the Marine and Coastal Access Act 2009 or the Harbours Act 1964.
5. The court did not determine whether Phase II unlawfully interfered with the public right of navigation. That was a fact-and-degree issue unsuitable for resolution on this appeal.

1. Court of Appeal (Civil Division) — dismissed the appeal against Patterson J’s order and refused permission to apply for judicial review: [2015] EWCA Civ 650.
2. High Court, Administrative Court — Patterson J refused permission to apply for judicial review: [2014] EWHC 2136 (Admin).