Carallyn Parkes, R (on the application of) v Secretary of State for the Home Department

The claimant sought judicial review of the Secretary of State's actions and proposed actions in accommodating asylum seekers on the barge Bibby Stockholm in Portland Harbour. The challenges relied primarily on planning law (whether the stationing and use of the barge constituted "development" under section 55 of the Town and Country Planning Act 1990, and whether the mooring fell within the local planning authority's jurisdiction), environmental impact assessment obligations under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 and retained EU law, and the public sector equality duty under section 149 of the Equality Act 2010.

The court concluded that (i) any breach of planning control by the Crown in placing the barge would give rise to enforcement jurisdiction for the local planning authority and not ordinarily to public law relief against the Secretary of State; (ii) the Secretary of State accepted that the use could be capable of amounting to a material change of use/development for planning purposes, so ground 1 raised no real issue against the Secretary of State; (iii) questions about the geographical extent of planning jurisdiction in the interface between land and sea (including the application of section 72 of the Local Government Act 1972 and foreshore/low-water-mark issues) raised complex and inadequately pleaded points which were not appropriate to decide against the Secretary of State in these proceedings; (iv) the EIA ground was parasitic on the jurisdictional/planning point and therefore not arguable here; and (v) the equality duty complaint was a freestanding point but, on the facts and the assessments before the court, did not show irrationality and was not arguable. For these reasons permission to proceed was refused and the claim terminated.

Background and parties. The claimant, a local resident and Mayor of Portland, challenged the lawfulness of the Secretary of State for the Home Department's proposed accommodation of asylum seekers on a barge, the Bibby Stockholm, moored in Portland Harbour. Dorset Council was named as an interested party. The claimant sought declaratory relief rather than quashing orders.

Nature of the application and relief sought. The claimant sought declarations that the accommodation was capable of constituting "development" under section 55 of the Town and Country Planning Act 1990, that it might amount to a breach of planning control and be subject to enforcement by the Council, that environmental impact assessment duties had not been complied with, and that the Secretary of State had failed to comply with the public sector equality duty under section 149 of the Equality Act 2010.

Issues framed by the court. The court formed the issues as four grounds: (1) error in law in treating the stationing/use of the barge as incapable of constituting development; (2) error in law in treating the matter as outside the Council's planning jurisdiction; (3) failure to comply with EIA obligations in the 2017 Regulations/retained EU law; and (4) breach of the public sector equality duty (s.149).

Key reasoning. The court emphasised that where development is carried out without planning permission by the Crown, that is a matter for local planning authority enforcement and is not, of itself, a public law error by the Secretary of State. Authorities such as R (Hammerton) v London Underground Ltd and R (Prokopp) v London Underground Ltd underline that enforcement discretion lies with local planning authorities. The Secretary of State had accepted that the mooring and use of the barge could be capable of amounting to a material change of use (so ground 1 presented no sustainable challenge against her). The jurisdictional issue about the spatial reach of planning control at the land/sea interface raised complex questions under section 72 of the Local Government Act 1972 and authorities on the foreshore and low-water mark; those points were insufficiently pleaded and in any event would more appropriately be addressed in proceedings directed at the local planning authority. The EIA ground was dependent on the jurisdiction/planning question and therefore could not stand alone. The equality duty ground, though freestanding, did not disclose irrationality in the Equality Impact Assessment and was not arguable on the material before the court.

Procedural and other observations. The court criticised the claimant for advancing new oral arguments without adequate written notice and held that wide-ranging novel points with potential broader implications required a properly pleaded fresh claim so that interested parties (including other government departments) could respond. The claimant's proposed amendment to join Dorset Council was rejected as inappropriate given the refusal of permission against the Secretary of State.

Permission to bring the claim against the Secretary of State is refused and the claim is at an end (the claim is dismissed). The court held that alleged breaches of planning control by the Crown do not of themselves give rise to public law error actionable against the Secretary of State, that the Secretary of State accepted the use could be capable of being development (so ground 1 raised no issue), that the jurisdictional/foreshore points were complex and insufficiently pleaded and belonged primarily to the local planning authority's enforcement domain, that the EIA ground was parasitic on those jurisdictional matters, and that the equality duty complaint did not disclose irrationality.