ON APPEAL FROM
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SULLIVAN
LORD JUSTICE FLOYD
| THE QUEEN ON THE APPLICATION OF ROBERT POWELL
|- and -
| (1) THE BRIGHTON MARINA COMPANY LIMITED
(2) WEST QUAY DEVELOPMENT COMPANY PARTNERSHIP LLP
(3) THE MARINE MANAGEMENT ORGANISATION
BRIGHTON AND HOVE CITY COUNCIL
Richard Drabble QC and Daniel Kolinsky QC (instructed by Addleshaw Goddard LLP) for the First and Second Respondents
Sasha Blackmore (instructed by Browne Jacobson LLP) for the Third Respondent
The Interested Party was not represented and did not appear.
Hearing dates: 16TH & 17TH June 2015
Crown Copyright ©
Lord Justice Sullivan:
"And whereas the sport of yachting, cruising and boating is expanding and is likely to continue to expand around the south east of England and it would be of public and local advantage to increase the existing facilities therefore at Brighton:
And whereas the county borough of Brighton and its environs constitute an important holiday and residential centre and it would be of public and local advantage to expand the existing facilities for the accommodation and enjoyment of tourists and visitors and of residents on the sea front in the said county borough:
And whereas it is expedient that the Company should be authorised to construct the marina and the recreational, residential and other facilities and the road and harbour works described in this Act and to reclaim land from the sea, as by this Act provided:"
""the works" means the works authorised by section 5 (Power to construct works) of this Act and any works constructed under section 6 (General power to make subsidiary works) and section 7 (Subsidiary works on foreshore) of this Act for or in connection with or subsidiary to any of those works and includes those works as extended, enlarged, altered, replaced or relaid under subsection (2) of the said section 5 and "work" shall be construed accordingly."
"5 (1) Subject to the provisions of this Act the Company may make and maintain in the lines and situations and upon the lands delineated on the deposited plans and described in the deposited book of reference, and according to the levels shown on the deposited sections the following works, that is to say:-…"
Works Nos. 1-14 are then described. Works Nos. 1-3 are three breakwaters. Works Nos. 6 and 7 are described as follows:
"Work No. 6 A pier or breakwater commencing at a point 390 yards measured in an east-south-easterly direction from the commencement of Work No 1 and terminating at a point 220 yards measured in a southerly direction from the point of commencement;
Work No. 7 A reclamation embankment commencing by a junction with Work No. 1 at a point 195 yards measured in a southerly direction from the commencement of that work, extending in an easterly direction and terminating by a junction with Work No. 6 at a point 30 yards measured in a southerly direction from the commencement of that work."
"(2) The Company may within the limits of deviation for the said works extend, enlarge, alter, replace or relay the same.
(3) The Company may by means of Works Nos. 1, 3, 7 and 8 and of that part of Work No. 6 which extends from the termination of Work No. 7 to the commencement of Work No. 8, enclose, in and reclaim from the foreshore and bed of the sea so much of the foreshore and bed of the sea as lies between Works No. 1 and 3 and is situate within the limit of deviation of Works Nos. 7 and 8 and landward of those works."
"(1) If the works authorised by section 5 (Power to construct works) of this Act are not completed before 1st October 1979, then on that day the powers by this Act granted to the Company for making and completing those works shall cease, except as to so much thereof as is then completed.
(2) On the application of the Company the Minister may by order extend the period referred to in subsection (1) of this section.
(3) An order, under subsection (2), of this section shall be subject to special parliamentary procedure."
"(1) A tidal work shall not be constructed, altered, extended, enlarged, replaced or relaid except in accordance with plans and sections approved by the Board of Trade and subject to any conditions and restriction imposed by the Board before the work is begun."
A "tidal work" means so much of any work authorised by the Act that is "on, under or over tidal waters or tidal land below the level of high water": subsection 4(1).
"(1) Subject to the provisions of this Act the Company may lay out and develop any lands to which this section applies (or any part of Works Nos. 1 to 9 inclusive) by the erection thereon of buildings and other structures and works, including without prejudice to the generality of the foregoing, car parks (either over or underground), filling stations, hotels, restaurants, club premises, offices, theatres, cinemas, casinos, dance halls, ice rinks, playgrounds, boatyards, bowling alleys, shops, houses, flat and other residential accommodation and in connection with such development may construct, sewer, pave, flag, channel and kerb streets, bridges, and ways:
Provided that any development authorised by this section shall not by virtue only of this section be deemed for the purposes of the Town and Country Planning General Development Orders, 1963 to 1965 and any enactment amending or replacing the same, to be carried out in pursuance of an Act which designated specifically both the nature of the development and the land upon which it may be carried out.
(2) The lands to which this section applies are those parts of the foreshore, the bed of the sea and other lands which lie between Works 1 and 3 and are situate within the limits of deviation of Works 7 and 8 and landward of those works (but excluding any part of Undercliff Walk)."
"The Company shall not construct or erect, to the south of the cliff face, any work, building or structure to a greater height than the height, at the time of such construction or erection, of that part of the cliff face which lies immediately to the north thereof."
This height limitation has been waived by the Corporation in relation to the development. The Company is given power to sell or lease its undertaking by section 52, and power to mortgage it by section 53. Section 59(1)(c) prohibits the Company from exercising those powers without the Corporation's approval.
"…[T]he existing pier is being extended so as to produce a platform on which buildings F1 and F2 will eventually be located. Within the extended pier will be located the underground car park. The extended pier will continue to serve at all times existing the breakwater function.
Phase 1….comprises an extended pier (in which will be located an underground car park) on which will be located Buildings F1 and F2 which will accommodate one hundred and ninety two residential units, of which twenty will be affordable homes, with food and drink units at ground floor level.
Whilst it will replicate the important function of the pre-existing pier as the western breakwater, members of the public will be able to walk along the improved landscape pier, which will be an animated place from morning to late evening as a result of the residential unit occupiers accessing their buildings from the pier, and due to the ground floor food and drink units within Buildings F1 and F2. These will have good views of the waterfront and the boating berths within the marina. A public amenity space and the yacht club will also be located within Building F2, and of course the new RNLI boathouse will be accessed at the end of the pier."
"As can be seen from the drawings …. the Phase 1 Development will be fully connected to, and reliant upon, the existing pier and quay for support. The access ramp is built over and supported by the quay. In particular:
(a) it comprises a three sided extension connected to and built over the existing West Quay forming the underground car park;
(b) the podium structure and buildings above the car park are connected to and supported by the existing West Quay; and
(c) the only entrance to the new buildings are over and through the existing quay wall.
Upon completion, the Phase 1 Development will provide all of the facilities normally associated with a quay or pier in terms of a landing place for boats, leisure activity and residential amenity. The works are clearly an extension of the pre-existing pier."
The Appellant's submissions
(1) The power conferred by subsection 5(2) to "extend, enlarge, alter, replace or relay" the works authorised by subsection 5(1) was subject to the time limit imposed by subsection 23(1), so that any extension, enlargement or alteration of the works, including Work No. 6 had to be completed by 1st October 1979 ("time limit").
(2) The Phase I works were the construction of a new, separate structure, and were not properly described as the extension, enlargement or alteration of Work No. 6 ("extension, enlargement or alteration").
(3) Section 40 impliedly prohibited the Company from laying out and developing any land outside the geographical limits described in subsection (2) of that section, so that if the First and Second Respondents wished to carry out any development of the kind described in subsection 40(1) outside those limits it would have to obtain a further Act of Parliament. A declaration was sought that the section 40 powers "were intended to be exhaustive, subject to further Parliamentary authority." ("Section 40").
Extend enlarge or alter
(a) while section 40 did not permit the Company to carry out any development of the kind described in subsection 40(1) outside the geographical limits described in that section, neither did it prohibit the Company from carrying out such development outside those limits;
(b) if the Company wished to lawfully develop land outside those limits it would have to obtain authorisation (if and insofar as any authorisation was required) under the relevant statutory code;
(c) while authorisation from Parliament by way of the Private Bill procedure would have been the only option in 1968, there was now power to grant authorisation (if it was required) under the Marine and Coastal Access Act 2009 ("the 2009 Act") and/or the Harbours Act 1964 as amended ("the 1964 Act").
Lord Justice Floyd:
Lady Justice Arden: