R (on the application of Carralyn Parkes) v Dorset Council [2024] EWHC 1253 (Admin) 

Case details

In R (Parkes) v Dorset Council, the High Court had to consider a judicial review application by Carralyn Parkes (‘Parkes’), a town councillor and the mayor of Portland Town Council, who sought a determination by the court that Dorset Council had erred in law in determining it could not take planning enforcement action against the use and/or stationing of the Bibby Stockholm barge, notwithstanding that the Home Secretary had not applied for planning permission. Parkes contended that (a) the area of the sea bed above which the Bibby Stockholm is stationed forms part of the ‘land’ which is subject to planning control under the Town and Country Planning Act 1990 (TCPA 1990) and (b) the use of the barge constitutes a material change in the use of that land so as to constitute ‘development’ requiring planning permission. The application for judicial review was dismissed. The High Court found that neither the area of the sea bed above which the Bibby Stockholm is moored, nor Portland inner harbour, nor the ‘inner waters’ in Weymouth bay extending to the baselines of the territorial sea, form part of the area of Dorset Council. The High Court stated further that it would be insufficient to make the location of the Bibby Stockholm subject to planning control as it is not enough that a site should fall within the area of a local planning authority (LPA). It must also constitute ‘land’. ‘Land’ under the TCPA 1990 does not cover ‘land covered by water’ (unlike the Scottish definition) and so the English planning regime, unlike the Scottish regime, does not apply to the sea bed beyond the mean low water mark (‘LWM’). Written by Martha Grekos, barrister at MGLC Legal Ltd.

What are the practical implications of this case?

This case is important as it confirms the geographical extent of planning control in England and Wales under the TCPA 1990 where the land meets the sea and whether ‘land’ in England and Wales includes the sea bed beyond the LWM of the foreshore.

Also, even though the High Court was informed that there is a good deal of opposition to the mooring of the Bibby Stockholm in the harbour and to its use for accommodating asylum seekers, the High Court made it very clear that it had no role to play in considering the rights and wrongs of those issues. The High Court was only concerned with the legal questions raised by this claim.

What was the background?

Bibby Stockholm is a barge moored in Portland Harbour in Dorset and used by the Home Office to accommodate asylum-seekers. Up to 500 men will eventually live on the vessel while they await the outcome of asylum applications. It is moored above a part of the sea which is never exposed by the tide, lying below the LMW.

Parkes, in her personal capacity, had challenged the Home Secretary’s failure to obtain necessary planning permission to use the Bibby Stockholm to accommodate asylum seekers. However the High Court ruled that Parkes had an unarguable case. Parkes therefore then brought a claim, again in her personal capacity as a local resident, against Dorset Council, contending that Dorset Council as LPA does have jurisdiction over the barge. Dorset Council, together with the Secretary of State for the Home Department, and the Secretary of State for Levelling Up, Housing and Communities, contend that planning control under the TCPA 1990 does not extend below the LWM.

The five grounds of challenge were:

The boundaries of Dorset Council encompass Portland Harbour;

By virtue of being moored indefinitely in Portland Harbour, the Bibby Stockholm has become an ‘accretion from the sea’ within the meaning of section 72 of the Local Government Act 1972 (LGA 1972), and therefore falls within planning control;

Even if the geographical extent of the administrative area of Dorset Council does not extend further into the harbour than the finger pier, applying a purposive interpretation of the legislation, Dorset Council’s enforcement powers apply to the Bibby Stockholm;

Dorset Council had erred by failing to consider taking enforcement action in respect of any breach of planning control through a material change in the use of the quay, the finger pier and access road; and

If on an ordinary interpretation of the legislation, Dorset Council would not have power to take enforcement action in relation to the area in which the Bibby Stockholm is moored, it nevertheless does have such a power by interpreting the legislation in accordance with the Marleasing principle, to give effect to the requirement of the Environmental Impact Assessment Directive (EIA Directive) that there be an assessment of the likely significant effects of relevant projects on the environment.

What did the court decide?

The overall conclusion was that the Bibby Stockholm lies outside the area which is subject to planning control and so the claim for judicial review was dismissed.

The first ground failed. The High Court found that neither the area of the seabed above which the barge was moored, nor Portland inner harbour, nor the ‘internal waters’ in Weymouth Bay, form part of the area of Dorset Council. In any event, even if any of those areas did form part of the Dorset Council’s area, that would be insufficient to make the site of the barge subject to planning control as it would also have to constitute ‘land’ under TCPA 1990, s 336(1).’Land’ under TCPA 1990 does not cover ‘land covered by water’ (unlike the Scottish definition) and so the English planning regime, unlike the Scottish regime, does not apply to the sea bed beyond the LWM.

In respect of the second ground, the High Court held that a barge or ship is a chattel capable of being moved. Even if a barge is moored in one position for substantial period of time it remains a chattel; it does not become land or an accretion to land. There was nothing in LGA 1972 to suggest that the extent of a local government area can be influenced by the positioning of a chattel over land.

In respect of the third ground, the High Court held that a LPA does not have power to serve an enforcement notice in relation to development outside its area as that would be contrary to the statutory scheme and clear case law.

In respect of the fourth ground, the High Court found no merit that Dorset Council failed to consider taking enforcement action. Whether a public body has failed to take action depends upon there being a corresponding obligation or duty to take that action but Parkes did not identify any such obligation or timescale within which the Council had to take action.

Lastly, the High Court found that the positioning of the Bibby Stockholm in Portland Harbour and its use to accommodate asylum seekers does not qualify as a project for the purposes of the EIA Directive.

Original Article By Martha Grekos On LexisNexis