Brighton & Hove City Council Agenda Item 9
For general release
Meeting: Council
Date: 13 July 2006
Report of: Chief Executive
Subject: Brighton Marina and The Brighton Marina Act 1968
Ward(s) affected: Rottingdean Coastal/All
1. Purpose of the report
1.1 The purpose of this report is to seek the approval of the Council under the provisions of the Brighton Marina Act 1968 to proposed development at Brighton Marina which would exceed the height of the cliff face immediately to the north.
2. Recommendations
2.1 That the Council consent under section 55 of the Brighton Marina Act 1968 to the development permitted by the planning permission relating to application BH2006/01124, for land at Brighton Marina comprising the Outer Harbour, West Quay and adjoining land, exceeding the height of the cliff face immediately to the north as indicated in the planning permission.
2.2 That the Council authorise the entering into of an appropriate agreement with the Developer to evidence this consent and also agree to any changes required to the terms of the Marina Lease as a result of this decision.
3. Introduction
3.1 At its meeting of 30th June 2006 the Planning Applications Sub Committee [“PASC”] resolved that the Council in its capacity as the local planning authority were minded to grant planning permission, for the development shown in application BH2006/01124/FP, subject to a section 106 Agreement and the detailed conditions set out in the report. This report is presented straight to council by the Chief Executive as it was not practical to take the report via Policy & Resources Committee, as it met on the 29th June, before the planning decision had been made.
3.2 The PASC report is comprehensive. As it contains much information relevant to the matter now before the Council, it forms Appendix 1 to the report, but in view of its size it has been included as a separate document. For ease of reference the contents of the report are as follows:
Application description at page 1 Summary at pages 2-4 Recommendations at pages 5 – 24 Site description at pages 24/5 Details of the application at pages 25 – 30 Consultation summaries at pages 30 - 77 List of planning policies at pages 77 - 81 Relevant planning considerations at pages 81 -125 Conclusion at pages 125 –127 Reasons for the recommendations at pages 127/8 Equalities implications at page 128 Planning history at pages 130/1 Drawings list at page 132 – 5 Heads of Terms for the S106 Agreement at pages 135 – 141 List of representations received at pages 142 -155 Summary of SPG BH20 at pages 156 - 8 Letter from Des Turner MP at pages 161/2 Letter from Cllr Mears at pages 163/4 Relevant plans at pages 165 – 8
3.3 The PASC report refers to objectors who have raised the Brighton Marina Act 1968 and at pages 123-4 of the appended report the legal implications thereof, so far as PASC were concerned, are set out. In the context of objections to the proposed development, reliance has been placed by some objectors upon the terms of section 59(1) of the Brighton Marina Act 1968, which, it has been suggested by objectors, absolutely prohibits the construction of any building in the Marina to a greater height than that part of the cliff face which lies immediately to the north of it. It is not in dispute that the development, particularly the tower, will be higher than that part of the cliff face immediately to its north, but section 55 of the Act permits the Council to consent in writing to buildings which do exceed such height.
3.4 Although the height of the development was a matter relevant to the consideration of PASC, the specific wording of the Act and whether or not statutory consent should be given, was not. Whether or not the Council agree to the height restriction being amended is the subject matter of this report, as it is for full Council to decide whether or not consent under section 55 of the Act should be given.
4. Background
4.1 Development of the Marina was controversial when it was first proposed in the 1960s. The works involved interference with navigational rights and reclaiming land from the sea and, accordingly, it was necessary for the developers to obtain the authority of an Act of Parliament. Nowadays it should be noted that it would be possible to obtain the necessary powers by way of an Order obtained under the Transport and Works Act 1992.
4.2 A Bill was first presented to Parliament in 1966 but consideration of it was deferred until after planning permission had been obtained. An application for planning permission was considered at a Public Inquiry in 1966, and later in that year the Minister of Housing and Local Government granted planning permission following consideration of his Inspector’s report. The visual impact of the development was one of the issues considered by the minister, and he concluded, as had his Inspector, that the development as proposed was unlikely to be unduly obtrusive in the local scene. A condition was imposed that:
“No building shall be of a height greater than the level of that part of the cliff-top, which is immediately north of the site of the building.”
4.3 The Brighton Marina Bill was then re-presented to Parliament. It was considered first in the House of Commons. At this stage it did not contain any protective provisions for Brighton Corporation as it then was, i.e. the provisions, which were subsequently to become sections 54-59 of the 1968 Act.
4.4 There were then several debates during the Bill’s passage through the House, which culminated in the Brighton Marina Act.
5. The Brighton Marina Act 1968
5.1 Section 55(1) of the Act provides:
“For the protection of the corporation the next following four sections of this Act shall unless otherwise agreed in writing between the Company and the corporation apply and have effect.”
“The Corporation” is now of course Brighton & Hove City Council.
5.2 Section 59(1) provides:
“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.”
5.3 This height restriction under Section 59(1) is therefore capable of being varied by agreement in writing between the Council and the Company (i.e. the Applicant), as provided under Section 55(1).
5.4 Section 70 is as follows:
“The provisions of the Town and Country Planning Act 1962 and of any restrictions or powers thereby imposed or conferred in relation to land shall apply and may be exercised in relation to any land notwithstanding that the development thereof is, or may, be authorised or regulated by or under this Act.”
Under the rules of statutory interpretation this reference to the 1962 Act should be taken to mean the current Town & Country Planning Act. To adopt the language of the Developer’s eminent Counsel (Keith Lindblom QC, Paul Morgan QC and Philip Petchey) in respect of the legal position that the provision of section 55 is not a material planning consideration: “It is a well established principle of planning law that where, in respect of land which is the subject of a planning application, a consent other than planning permission is required before development can go ahead, the need for that consent is not a material consideration in deciding whether planning permission should be granted. Even more relevantly to the facts of the present case, there is clear law that the existence of an inhibition imposed by Act of Parliament upon development is not a material planning consideration.”
6. Consent Under The Act
6.1 The Council has deliberately chosen not to consider whether or not consent under the Act should be granted until after planning permission has been granted. This is consistent with the way that Parliament dealt with the passing of the Act.
6.2 Although Parliament chose to give the additional control over the height it did not set out any specific criteria how the decision should be exercised. It simply said that the restriction was for “the protection” of the Council. Contrary to what has been argued by some objectors to the planning application, what was said in Parliament does not cut down or fetter the wide power conferred upon the Council. Section 55(1) unequivocally enables the City Council to waive the requirements of any of the provisions contained in section 56 to 59 of the Act. There is nothing ambiguous or obscure about the drafting. Various MPs made points in debate, but they did not find their way into the Act. In the absence of ambiguity, it is settled law that it is not possible to have recourse to the Parliamentary material to interpret the Act [Pepper v. Hart 1993 Ac593].
6.3 As stated in the Developer’s Counsels’ opinion: “In R v Secretary of State for Environment, Transport and the Regions, ex parte Spath Holme Limited [2001] 2AC349 (HL) it was argued that recourse could be had to Hansard in order to demonstrate that a power was being used in a way to frustrate the policy and objects of the Act. However a majority of the House of Lords held that no such recourse should be had to Hansard unless the statutory provisions were ambiguous”. Counsel add that even there were ambiguity in the drafting it “is hard to see how a decision by the City Council to waive, in a particular case, protective provision inserted in the Act for its benefit could properly be construed as frustrating the policy and objects of the Act.”
6.4 In any event the object of the Act was to enable the Marina to be created and it does not follow that different proposals presented over 30 years later should be regarded as automatically unacceptable simply because they exceed the height of the cliff top. It can reasonably be assumed that Parliament entrusted the Council to make decisions in good faith if at any time a development which exceeded the cliff height was proposed. Otherwise it could have prohibited such development in perpetuity. In the course of the last 30 years considerable experience has been gained in the design of tall buildings and planning policy has recognised the contribution they make to the city. Indeed PASC decided that it was appropriate to grant planning permission for the development proposals, including the tower.
6.5 General rules of exercising discretion reasonably and transparently apply to this decision.
6.6 The Council would be exceeding its powers if it was to try and seek collateral advantage or payment from the developer in return for consent i.e. the Act does not entitle the council to levy a charge for consent to build beyond the cliff height.
6.7 Given that the statutory purpose of the Act was linked to proper planning, needs and amenities of the area, the Council’s decision should be based on its assessment of what is best for the city, taking into account the protection afforded by the detailed planning permission and Section 106 Agreement. The PASC report comprehensively sets out the nature of the proposals and why PASC thought it appropriate to grant planning permission. It also sets out consultation responses to the planning application, which the Council can take into account in determining whether or not consent under the Act should be given.
6.8 If it is considered as a matter of reasonable common sense that the main reason was connected to the effect on views members should note the comments at pages 110 -112 of the PASC report.
Meeting/Date / Full Council – 13th July 2006Report of / Chief Executive
Subject / Brighton Marina & the Brighton Marina Act 1968
Wards affected / Rottingdean Coastal/All
Financial implications
There are no financial implications to this report. The brighton Marina Act does not entitle the Council to levy a charge for consent to build beyond the cliff height.
Finance Officer consulted: James Hengeveld 03/07/06.
Legal implications
The proposals in this report are consistent with the powers of the Council under the Brighton Marina Act and within general principles of administrative law. The details of the Act and the legal parameters are set out in the body of the report.
Lawyer consulted: Bob Bruce 03.07.06.
Corporate/Citywide implications
The Marina has been identified as a site with opportunities for development, enhancement and regeneration. The development would act as a catalyst for further proposals to come forward. See PASC report for further information e.g the summary of the Head of Tourism’s comments on the application on page 75. / Risk assessment
Safety issues are dealt with in the PASC report [see for example pages 103-5 and 120]. The Marina proposals have attracted a lot of support and a lot of opposition. As with any major development proposal there is always a risk of a Council decision
being challenged.
Sustainability implications
A highly sustainable development is proposed. See PASC report for details, particularly pages 105/6. / Equalities implications
See PASC report page 128.
Implications for the prevention of crime and disorder
See PASC report pages 62/3 for a summary of Sussex Police’s comments on the proposed development.
Background papers
1. Brighton Marina Act 1968. 2. The attached PASC report.
Contact Officer
Contact officer Bob Bruce. Principal Solicitor. Tel: 291518.
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