Powel v The Marine Management Organisation

The claimant sought judicial review of the Marine Management Organisation’s (MMO) grant of a marine licence under section 71 of the Marine and Coastal Access Act 2009 (“MCAA 2009”) for phase 2 works at Brighton Marina. The claimant argued that the MMO failed to consider whether the works would amount to an actionable interference with public rights of navigation and that, if so, the MMO could not grant a licence unless a harbour revision order extinguishing or permitting that interference had been made.

The court held that section 69(1)(c) (the duty to have regard to "the need to prevent interference with legitimate uses of the sea") requires the MMO to evaluate and balance competing uses of the sea, not to determine as a matter of law whether proposed works would give rise to an actionable interference with public rights of navigation. The MMO properly consulted maritime advisors, considered evidence about navigation and safety, and applied a weight-of-evidence approach. The licence authorised deflector piles adjacent to the development footprint and did not authorise additional works along the northern side of the navigation channel.

All grounds of challenge failed. The court dismissed the claim because (i) section 69(1)(c) is a compendious obligation to have regard to legitimate uses (not a direction to adjudicate on actionable interference with navigation rights), (ii) section 78 is procedural and does not require dual determination of harbour orders and marine licences in all cases, and (iii) the question whether an interference with navigation is actionable is fact-sensitive and not for resolution in these judicial review proceedings.

The claimant, a resident overlooking Brighton Marina, challenged the MMO’s grant on 24 February 2016 of a marine licence under section 71 MCAA 2009 for phase 2 of a Brighton Marina development. Phase 2 involved construction of a circa 2.08 hectare deck and several buildings (including a 40-storey tower K) and protective deflector piles. The Brighton Marina development operates under the Brighton Marina Act 1968 and planning consents were in place for the scheme; earlier litigation had considered the scope of that Act and phase 1 works (see [2014] EWHC 2136 (Admin) and [2015] EWCA Civ 650).

Nature of the claim: an application for judicial review seeking quashing of the MMO’s marine licence. The claimant advanced three primary grounds: (1) MMO failed to consider whether the phase 2 works would be an actionable interference with public rights of navigation; (2) applying the correct legal test, the works would unlawfully interfere with navigation and a declaration should be given; and (3) where proposed works would unlawfully interfere with navigation the MMO lacked power to grant a licence unless a harbour revision order extinguishing or permitting that interference was made.

Issues framed by the court: whether section 69(1)(c) required the MMO to determine actionable interference with public rights of navigation and to refuse a licence (or require a harbour order) where such an interference would result; the proper legal test for actionable interference with public rights of navigation; and whether the MMO’s reasons and consultation process were sufficient.

Court’s reasoning and decision: the court analysed MCAA 2009 in context (noting the MMO’s duty to contribute to sustainable development under section 2 and the requirement to have regard to relevant marine policy under sections 58–59). Section 69(1)(c) was construed as a compendious obligation to have regard to the need to prevent interference with legitimate uses of the sea (a broad category that includes but is not limited to navigation). That duty does not impose an absolute bar or require the MMO to determine, as a matter of law, whether a proposed work would give rise to an actionable interference with public rights of navigation; instead the MMO must weigh competing considerations and apply a proportionate, evidence-based judgment. Section 78 (on concurrent consideration of harbour orders) is procedural and permissive, not a substantive constraint preventing the grant of a licence absent a harbour revision order. The court observed that whether an interference with navigation is actionable is fact-dependent and inappropriate for determination in a judicial review of the MMO’s decision. The MMO had carried out targeted consultation (including with the harbour master, RYA and MCA), re-consulted on specific points, and adopted a weight-of-evidence approach; it lawfully concluded the licensed activities would not interfere with public rights of navigation or safe navigation in the marina. All grounds of challenge were dismissed and permission to appeal was refused.

Procedural and contextual remarks: the judgment records prior litigation concerning the Brighton Marina Act 1968 and confirms that the marine licence authorised specific deflector piles and did not authorise additional works along the north side of the navigation channel; it also notes that no factual complaints about navigation interference had arisen while the coffer dam for phase 2 had been in place (summer 2016 onwards).

The claim for judicial review is dismissed. The court held that section 69(1)(c) of the MCAA 2009 requires the MMO to have regard to and weigh the need to prevent interference with legitimate uses of the sea, not to determine as a matter of law whether proposed works would give rise to an actionable interference with public rights of navigation. The MMO lawfully applied a weight-of-evidence approach, properly consulted experts and concluded there was no practical interference with navigation or navigational safety warranting refusal of the licence. The court refused permission to appeal.

The judgment records prior related proceedings: the claimant’s challenge to a section 24 consent for phase 1 was dismissed by Patterson J ([2014] EWHC 2136 (Admin)) and the dismissal was upheld by the Court of Appeal ([2015] EWCA Civ 650). An application to re-open the Court of Appeal hearing was refused by Sales LJ on 3 December 2015. The claimant’s application for permission to appeal to the Supreme Court on the section 40 issue was refused on 12 May 2016. These prior steps were described in the judgment.