Powel v The Marine Management Organisation

Under section 69(1) of the Marine and Coastal Access Act 2009, the licensing authority must have regard to the need to prevent interference with legitimate uses of the sea. That obligation is evaluative, not absolute. It requires the authority to consider the relevant use, assess the nature and degree of any interference, weigh it with environmental, health and other relevant considerations, and strike an appropriate balance.

The authority need not determine whether the proposed works would constitute an actionable interference with public rights of navigation. Any separate need for a harbour revision order remains a freestanding requirement. Judicial review is concerned with the legality of the licensing decision, not with determining disputed factual questions about actionable interference.

The claimant challenged the Marine Management Organisation’s grant of a marine licence under section 71 of the Marine and Coastal Access Act 2009 for phase 2 of development at Brighton Marina. He argued that the proposed works would interfere with public rights of navigation and that the MMO had to determine whether that interference was actionable before granting the licence.

The MMO had consulted navigation and safety bodies, considered the claimant’s representations, and concluded that the works would not interfere with safe navigation or justify refusal of the licence. The central issues were the construction of section 69(1)(c), the relationship between a marine licence and a harbour revision order, and whether the court should determine the alleged interference in judicial review proceedings.

1. Application dismissed. All grounds of challenge failed. Permission to appeal was refused.

2. Section 69(1) of the Marine and Coastal Access Act 2009 had to be read as a whole. The phrase “the need to prevent interference with legitimate uses of the sea” was not an absolute prohibition. “Need” was relative, and the obligation to “have regard to” required the MMO to take the matter into account and decide what weight it should receive alongside environmental protection, human health, sustainable development and other relevant considerations.

3. “Legitimate uses of the sea” extended beyond public rights of navigation. It included navigation and navigational safety, but could also include fishing, mineral extraction, amenity and uses arising from existing marine licences. The MMO was entitled to evaluate competing uses and consider the nature, extent and practical significance of any interference.

4. Section 69(1)(c) was not directed to deciding whether proposed works would create an actionable interference with public rights of navigation. A marine licence could not itself legitimise such an interference, but any need for a harbour revision order under the Harbours Act 1964 was a separate legal requirement. Section 78 of the 2009 Act was procedural and facilitated the joint consideration of related applications; it did not make a harbour order a precondition to a marine licence.

5. The MMO had collected substantial evidence, re-consulted on the claimant’s specific concerns, and reasonably concluded that the works would not interfere with navigation or navigational safety sufficiently to justify refusal. It was not required to determine the separate legal question of actionable interference.

6. The proposed actionable-interference test was not necessary to the decision. In any event, the court would not equate that test automatically with the highway rule that any obstruction beyond de minimis is actionable. The issue was fact-sensitive and unsuitable for determination in judicial review proceedings.

7. The MMO’s reasons were adequate when read fairly and as a whole. There was no statutory duty to give reasons, and the report did not purport to determine actionable interference.

First-instance judicial review in the Administrative Court. The judgment records earlier proceedings concerning phase 1 of the development: the challenge was dismissed by the High Court in [2014] EWHC 2136 (Admin) and the appeal was dismissed by the Court of Appeal in [2015] EWCA Civ 650. Those decisions were not the subject of the present challenge.