Carallyn Parkes, R (on the application of) v Secretary of State for the Home Department
[2023] EWHC 2580 (Admin)
Carralyn Parkes, R (on the application of) v Dorset Council
23 May 2024
[2024] EWHC 1253 (Admin)
High Court
A barge housing asylum seekers was moored in a harbor. Someone argued it needed planning permission because the seabed underneath is considered 'land'. The court said 'no', because planning laws in the UK don't apply to the seabed under the water. The claim failed.
Key Facts
- •Judicial review claim concerning the geographical extent of planning control in England and Wales where land meets the sea.
- •The Bibby Stockholm barge, moored in Portland Harbour to accommodate asylum seekers, is the central issue.
- •Claimant, a town councillor, argues the seabed where the barge is moored is subject to planning control under the Town and Country Planning Act 1990 (TCPA 1990) and its use constitutes development requiring permission.
- •Defendants and interested parties contend planning control does not extend below the mean low water mark (MLWM).
- •Portland Harbour is a largely enclosed harbour with breakwaters.
Legal Principles
Planning control in England and Wales under TCPA 1990 does not extend below the mean low water mark (MLWM).
Argyll and Bute District Council v Secretary of State for Scotland (1976) S.C. 248 (Scottish case, parallel legislation)
The definition of "land" in TCPA 1990 is limited to corporeal hereditaments, including buildings.
TCPA 1990, s.336(1)
"Land" in planning legislation includes land covered by water, but this does not automatically extend to the seabed below the LWM.
Case law interpretation of various planning acts across different jurisdictions and time periods
The "jaws of the land" principle, concerning the historical extent of county jurisdiction, is not applicable to determining the geographical extent of modern administrative functions like planning control.
Case law analysis of historical legal principles, including Hale's De Jure Maris and various case citations
Accretions from the sea, under s.72 of the Local Government Act 1972, generally refer to land built out from the shore, and do not include the seabed below the LWM.
Local Government Act 1972, s.72; Case law on accretions
The Marleasing principle requires compatible interpretation of domestic legislation with EU law, but cannot rewrite legislation or contradict its fundamental principles.
Marleasing SA v La Comercial Internacional de Alimentacion SA (Case C-106/89)
Outcomes
Judicial review application dismissed.
The court found that planning control under TCPA 1990 does not extend to the seabed below the MLWM. The seabed where the Bibby Stockholm is moored is not 'land' within the statutory definition. Further, the court rejected the claimant's other grounds of challenge, including those based on the 'jaws of the land' principle, the accretion argument, and the Marleasing principle.
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