A recent High Court decision has confirmed the geographical extent of planning control in England and Wales.
The Bibby Stockholm barge to accommodate asylum seekers has been moored in Portland Harbour adjacent to a pier and above a part of the sea bed which is never exposed during the ebb and flow of the tide, i.e. below the Low Water Mark (LWM).
The Claimant contended that the area of the sea bed above which the Bibby Stockholm floats forms part of the Land and that the Bibby Stockholm therefore falls within the jurisdiction of planning control, she raised a number of arguments to say that the Council should take planning enforcement action under the Town and Country Planning Act 1990 (TCPA) against the stationing of the Bibby Stockholm.
The High Court rejected the Claimant's argument in relation to the United Nations Convention on the Law of the sea, holding that this was only applicable to international rights of passage and does not apply to the jurisdiction of local administrative bodies.
Under an alternative ground, the Claimant argued that the barge was an "accretion from the sea", this was dismissed as the High Court held that it cannot be an accretion because the seabed is below the LWM and the barge can be moved or towed to a different location, therefore the barge could only be considered as a chattel and not a permanent fixture.
Under a further ground, the Claimant argued that a purposive approach should be adopted which would allow the Planning Authority the powers to control activities outside its boundary. The court rejected this because legislation and case law indicate that an LPA cannot take enforcement action on development outside its boundaries even if the development were to have significant impact. Parliament had intended that planning control is confined to "land" and "tidal lands" but not the seabed below the LWM.
What conclusions can be drawn from this High Court decision?
The claim for Judicial Review was rejected as the location of the Bibby Stockholm does not fall within the definition of land in the TCPA.
Planning control is exercisable above the LWM, but not below it.
Although not a point raised in this case, readers are reminded that Marine Licensing applies below Mean High Water Springs (MHWS), so works on the foreshore may potentially require consent from both the Local Planning Authority and the Marine Management Organisation.
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