Carralyn Parkes, R (on the application of) v Dorset Council

General planning control under the Town and Country Planning Act 1990 extends to land within a local planning authority’s area, including the foreshore, but not ordinarily to the seabed below the low-water mark. The geographical scope of statutory functions depends on the language and purpose of the particular enactment. International-law concepts such as internal waters, territorial waters and the jaws of the land do not determine the extent of local planning powers.

A structure may become an accretion from the sea where it enlarges the mainland, but a moored barge remains a chattel and does not thereby become land. A local planning authority cannot take enforcement action for development outside its area merely because that development affects the authority’s land. The mooring and use of the Bibby Stockholm did not constitute an EIA Directive project.

The claimant, a local resident and town councillor, sought judicial review of Dorset Council’s position that the mooring and use of the Bibby Stockholm in Portland Harbour fell outside planning control.

The barge was moored above seabed that was permanently below the low-water mark. The claimant argued that Portland Harbour formed part of Dorset, that the seabed or barge constituted land or an accretion from the sea, and that the Council could enforce planning control over the barge or associated quayside activities. She also relied on a purposive interpretation of the Town and Country Planning Act 1990 and the Marleasing principle in relation to the EIA Directive.

1. Grounds (1) and (2). Portland Harbour, the relevant inner waters of Weymouth Bay and the seabed beneath the Bibby Stockholm were not shown to form part of Dorset Council’s local government area. The historical concept of the body of a county and the jaws of the land arose principally in connection with criminal, admiralty and coroners’ jurisdiction. They did not determine the geographical extent of modern administrative functions. UNCLOS likewise regulates relations between states and navigation rights; it does not determine the territorial extent of local planning powers.
2. Section 72 of the Local Government Act 1972 includes qualifying accretions from the sea within the relevant local government area. The inner breakwaters were accretions because they were solid structures connected to the mainland and constructed on seabed from which the sea had been excluded. The permanently submerged seabed was not an accretion. The barge itself was a chattel. Its lengthy mooring did not turn it into a fixture or an addition to the land.
3. In any event, the seabed was not “land” for the purposes of section 336(1) of the Town and Country Planning Act 1990. The statutory definition, read with the potency of the term “land” and the history of planning legislation, excluded seabed below the low-water mark. The reasoning in Argyll and Bute District Council was applicable. The foreshore remained subject to planning control, but the legislation contained no equivalent general provision extending control to the permanently submerged seabed.
4. Grounds (3) and (4). A local planning authority could not serve an enforcement notice for development outside its area merely because the development affected its community or land. Dorset Council was considering possible enforcement action concerning the quayside and finger pier, and no legal duty or timetable requiring an earlier decision had been established. A planning unit could not include land outside the geographical scope of planning control.
5. Ground (5). Assuming that the Marleasing principle remained applicable, it could not justify rewriting the statutory scheme or extending planning control beyond “land”. The mooring and use of the barge did not amount to an EIA Directive project, because the relevant works did not constitute an urban development project and the construction of the vessel elsewhere was not an alteration to the physical state of Portland Harbour.
6. Permission to apply for judicial review was granted only on ground (1), but that ground failed. Permission was refused on grounds (2) to (5). The application for judicial review was dismissed.

First-instance judicial review decision. The judgment records an earlier permission decision in the same dispute, [2023] EWHC 2580 (Admin), but this claim was dismissed.