The central question in the claim was the geographical extent of planning control in England and Wales under the Town and Country Planning Act 1990 (“TCPA 1990”) where the land meets the sea.

Part of Ms Parkes’ case (Ground (1)) was that Portland Harbour fell within the body of the county of Dorset.  The claimant relied on Lord Hale’s treatise De Jure Maris and historic case law to support its argument that parts of the sea within “the jaws of the land” fell within “the body of the county”.  The High Court accepted the Defendant and Interested Parties’ submissions that the case law relied on by the claimant did not support the argument that Portland Harbour forms part of the area of Dorset Council (paras 114-142).  The Judge held that there was no authority to support the proposition that the “jaws of the land” case law applied to determine the geographical extent of local government functions (para 140).

Mr Justice Holgate rejected the claimant’s argument that the Bibby Stockholm barge was an “accretion from the sea” for the purposes of s.72 of the Local Government Act 1972 (paras 153-154). 

The High Court also rejected the claimant’s contention that the sea bed above which the Bibby Stockholm is moored is “land” within s.336(1) TCPA 1990.  Holgate J accepted the SSLUHC’s submissions that the word “land” was such a potent term, defined in contradistinction to the sea in its ordinary meaning, that the bed of the sea could not be “land” (paras 178-180). 

Holgate J also accepted the SSLUHC’s submission that “land” in s.336(1) is limited to corporeal hereditaments and does not include the sea bed owned in right of the Crown as allodial land – that is, land which is owned by the Crown by virtue of a prerogative right (paras 181-195).

In addition, the High Court held that the claimant’s argument that a local planning authority could take enforcement action outside its area was flawed (paras 199-201).

Ground (5) was an argument that the TCPA 1990 ought to be interpreted to require planning permission for the mooring of the barge, in order to comply with the requirements of the Environmental Impact Assessment Directive.  Mr Justice Holgate decided, however, that mooring the barge in Portland Harbour for 18 months or so, to accommodate asylum seekers, did not amount to a project for the purposes of the EIA Directive (paras 216-219). 

Holgate J found that Grounds (2)-(5) were unarguable and dismissed the claim on Ground (1).  He also refused an application for permission to appeal on Ground (1).

A copy of the judgment is available here.

Richard Honey KC and Stephanie Bruce-Smith acted for the Secretary of State for Levelling Up, Housing and Communities, instructed by the Government Legal Department.