Powel v The Marine Management Organisation

Factual and Procedural Background

The Plaintiff challenges the grant by the Defendant, the Marine Management Organisation ("the MMO"), of a marine licence under Section 71 of the Marine and Coastal Access Act 2009 ("MCAA 2009") dated 24 February 2016. The licence was granted to the First Interested Party, Company A, the harbour authority for Brighton Marina. The Second Interested Party, Company B, a subsidiary of Company A, is the developer of phase 2 of a scheme for additional development at Brighton Marina. The marine licence relates to works comprised in phase 2.

The Brighton Marina covers about 127 acres and is one of the largest marinas in Europe and the largest in the United Kingdom, providing approximately 1500 berths in the outer harbour. Access is via a lock to an inner harbour. Existing development includes residential flats, a superstore, shops, restaurants, a cinema complex, and leisure facilities.

The Marina's construction was authorised by a private statute, the Brighton Marina Act 1968 ("BMA 1968"), which authorised reclamation of land, harbour works, and development of marina, residential, and recreational facilities. Section 5(1) authorised Company A to construct specific works, and section 5(2) authorised extensions or alterations within limits of deviation.

Ownership and leases of the marina site have passed through local authorities, with Company A holding a lease from the successor authority as of 2005. Planning permissions for development schemes were granted in 2006 and 2013, including a deck construction over a "spending beach" and sea area to the south, which absorbs wave energy.

Phase 1 involved construction of two buildings on an extension to the pier; phase 2 involves nine buildings on the new deck, including one 40-storey building adjacent to the West Breakwater. The Plaintiff resides in a flat overlooking the marina and the proposed development and is concerned about effects on outlook and amenity.

The Defendant previously granted a marine licence and a consent under section 24 of BMA 1968 for phase 1 works in 2013. The Plaintiff challenged the section 24 consent by judicial review, which was dismissed at first instance and on appeal. It was accepted that parts of phase 2 were not authorised by BMA 1968 and would require further authorisations, including a marine licence under MCAA 2009.

The Plaintiff's challenge in the present case focuses on the lawfulness of the marine licence granted for phase 2, particularly whether the development unlawfully interferes with public rights of navigation. The Plaintiff sought to re-open the earlier appeal and permission to appeal to the Supreme Court on related issues but was unsuccessful.

Company B applied for the marine licence for phase 2 in August 2015, describing proposed works including construction of buildings and associated structures. The Defendant consulted relevant bodies and the public, received representations including from the Plaintiff, and ultimately granted the marine licence in February 2016. The licence authorises installation of deflector piles adjacent to structural piles but does not authorise additional piling along the northern side of the navigation channel.

The Defendant considered evidence and consultation responses, concluding that the proposed development would not interfere with public rights of navigation or safe navigation within the marina. The Plaintiff challenges this decision by judicial review.

Legal Issues Presented

1. Whether the Defendant was obliged under section 69(1) of MCAA 2009 to consider if the phase 2 works would constitute an actionable interference with public rights of navigation.
2. What legal test applies to determine whether proposed works unlawfully interfere with public rights of navigation and whether that test was satisfied in this case.
3. Whether the Defendant was empowered to grant a marine licence under section 71 of MCAA 2009 where proposed works unlawfully interfere with public rights of navigation without a harbour revision order permitting such interference.

Arguments of the Parties

Plaintiff's Arguments

• The Defendant failed to consider whether the phase 2 works would constitute an actionable interference with public rights of navigation.
• The correct legal test is that any non-de minimis reduction in the area available for navigation constitutes unlawful interference.
• The Defendant cannot grant a marine licence if the works unlawfully interfere with public rights of navigation unless a harbour revision order extinguishing or permitting such interference is made.
• The Defendant's decision and the marine licensing regime fail to properly address these requirements.

Defendant and Interested Parties' Arguments

• Public rights of navigation are not exercisable within the marina due to statutory provisions and the absence of an "open port" provision.
• Even assuming public rights of navigation exist, the Defendant was not required to determine actionable interference under section 69(1)(c) but only to consider interference with legitimate uses of the sea.
• Section 69(1)(c) requires a balancing exercise considering all relevant matters, not an absolute prohibition on interference.
• Section 78 of MCAA 2009 is procedural and does not prevent the grant of a marine licence where a harbour revision order is not obtained.
• The Defendant properly consulted and considered evidence and representations, concluding no interference with navigation or navigational safety.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
In re Findlay [1985] AC 318	Test for irrationality and materiality in administrative decisions.	Used to explain the discretion the MMO has in deciding relevant matters.
Creed NZ v Governor General [1981] 1 NZLR 172	Similar principle on discretion and materiality.	Supported the court's approach to MMO's discretion.
R (Plant) v Lambeth LBC [2017] PTSR 453	Discretionary weight to be given to relevant factors.	Reinforced the balancing exercise MMO must undertake.
City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447	Balancing competing legitimate interests in decision-making.	Supported the MMO's balancing of legitimate uses of the sea.
Stringer v Minister of Housing and Local Government [1970] 1 WLR 1281	Planning control analogy regarding use of land.	Used to analogise marine licensing to terrestrial planning.
R (Baker) v Secretary of State for Communities and Local Government [2008] LGR 239	Public sector equality duty requires due regard, not absolute result.	Supported interpretation of statutory duties as requiring consideration but not absolute outcomes.
R (Hurley & Moore) v Secretary of State for Business Innovation and Skills [2012] EWHC 201 (Admin)	Decision-maker's discretion on weight to give to statutory objectives.	Supported the MMO's discretion in weighing factors.
Attorney General v Terry (1874) LR 9 Ch 423	Interference with public rights of navigation requires actual obstruction causing inconvenience.	Considered but court found it did not establish a strict de minimis test analogous to highways law.
Iveagh v Martin [1961] 2 QB 232	Injunction may be granted for serious interference with public rights of navigation.	Used to illustrate fact-sensitive nature of interference.
R v Betts (1850) 16 QB 1022	Whether obstruction causes damage to navigation is a question of fact for jury.	Supported view that interference is fact-sensitive.
R v Shephard (1822) 1 LJOS 45	Whether an obstruction produces inconvenience is a question of fact.	Supported the fact-sensitive approach.
Denaby and Cadeby Main Collieries v Anson [1911] 1 KB 171	Similar principles on actionable interference with navigation.	Referenced for factual determination of interference.
Save Britain's Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153	Standards for reviewing reasons given by public authorities.	Applied to assess adequacy of MMO's Decision Report.
South Bucks D.C. v Porter (No. 2) [2004] 1 WLR 1953	Standards for review of reasoning in public law decisions.	Applied similarly to MMO's decision.

Court's Reasoning and Analysis

The court examined the statutory framework of the MCAA 2009, particularly section 69(1), which requires the MMO to have regard to the need to protect the environment, human health, and prevent interference with legitimate uses of the sea. The court rejected the Plaintiff's argument that section 69(1)(c) imposes an absolute prohibition on interference with public rights of navigation or requires the MMO to assess actionable interference.

The court emphasized that "legitimate uses of the sea" is a broad concept including but not limited to navigation, and that the MMO must balance competing interests and weigh relevant evidence rather than apply an absolute test. The MMO's role is not to conclusively determine the scope or legality of public rights of navigation but to consider practical interference with legitimate uses based on evidence and consultation.

The court found that the MMO properly undertook consultation with relevant experts and stakeholders, considered representations including those of the Plaintiff, and applied a "weight of evidence" approach. The MMO concluded that the proposed development would not interfere with navigation or navigational safety in the marina.

The court noted that enforcement provisions in MCAA 2009, such as sections 90 and 91, also apply tests of harm or interference with legitimate uses of the sea but do not impose absolute prohibitions. The MMO's discretion and balancing role is consistent throughout the statute.

The court further held that the Plaintiff's proposed legal test for actionable interference with public rights of navigation is fact-sensitive and not suitable for determination in judicial review proceedings challenging the lawfulness of the MMO's decision. The court declined to make a declaratory ruling on this factual issue.

Finally, the court found no legal flaw or inadequacy in the MMO's Decision Report or reasoning and concluded that the MMO discharged its statutory duties appropriately.

Holding and Implications

The court DISMISSED the Plaintiff's application for judicial review, rejecting all grounds of challenge.

The decision confirms that under section 69(1)(c) of MCAA 2009, the MMO's duty to consider interference with legitimate uses of the sea involves a discretionary balancing of relevant factors and does not require an absolute prohibition on interference with public rights of navigation or an assessment of actionable interference.

The ruling clarifies that the MMO may grant marine licences notwithstanding potential interference with public rights of navigation, provided it reasonably concludes no practical or serious interference arises, and that separate statutory mechanisms (such as harbour revision orders) govern lawful extinguishment or authorisation of interference with such rights.

No new precedent was established on the legal test for actionable interference with public rights of navigation, which remains a fact-sensitive question unsuitable for determination in judicial review of licensing decisions.