Marine Licences and Public Rights of Navigation

The recent case of R (on the application of Powell) v Marine Management Organisation [2017] has confirmed the already understood position regarding the relationship between marine licences (granted under the Marine and Coastal Access Act 2009 ('MCCA 2009')) and public rights of navigation (common law).

The Court held that a marine licence cannot legitimise an actionable interference with public rights of navigation. If a harbour revision order was required to legitimise what would be an unlawful interference with public rights of navigation it would be a freestanding legal requirement, not dependant on s.69(1)(c) MCCA or the existence of the marine licensing regime. The expression 'the need to prevent interference with legitimate uses of the sea' in s.69(1)(c) MMCA (see below) does not have the effect of requiring the Marine Management Organisation ('MMO') to consider whether in some cases a harbour revision order is necessary to extinguish or legitimise interference with public rights of navigation.

Marine Licences

Under MCCA 2009 a marine licence is needed for licensable activities taking place up to the mean high water spring tide mark (including tidal estuaries, rivers and channels). Under section 66, licensable marine activities include construction, alteration or improvement of any works in or over the sea or under the sea bed and dredging.

Section 69(1) MCCA 2009 deals with the determination of applications for a marine licence and states that the licensing authority must have regard to:

"(a) the need to protect the environment,

(b) the need to protect human health,

(c) the need to prevent interference with legitimate uses of the sea, and such other matters as the authority thinks relevant."

Paragraph 241 of the Explanatory Notes further explains that 'legitimate uses of the sea' in s.69(1)(c) include, but are not limited to, navigation (including taking any steps for the purpose of navigational safety); fishing; mineral extraction; and amenity use.

Public Rights of Navigation

Where development is being considered below the high water mark, thought also needs to be given to public rights of navigation (common law). The basic position is that any significant structure, for example a pier, below the high water mark, by its nature, is likely to interfere with public rights of navigation and will need to be authorised by or under statute to be immune from actions for public nuisance.

If statutory authority is not granted, it may be possible to defend nuisance proceedings if it can be shown that the obstruction will result in a direct public benefit that outweighs any inconvenience caused by it. The public benefit must be felt by users of the port or harbour. For example, in Attorney General v Terry (1874) Jessel MR stated that works to straighten the sides of a harbour of irregular space might not be a nuisance, even if they do obstruct navigation to a certain extent.

The case

The arguments

R (on the application of Powell) v Marine Management Organisation (MMO) [2017] concerned the grant, by the MMO, of a marine licence for phase 2 of the Brighton Marina Development (the construction of nine buildings on a new two hectare deck being built over tidal water).

The claimant argued that due to the requirement in s69(1)(c) for the MMO to have regard to 'the need to prevent interference with legitimate uses of the sea' the MMO, in granting a marine licence, was obliged to consider whether the proposed works would amount to an actionable interference with public rights of navigation. If they did, then the MMO was not empowered to grant a marine licence under s.71 MMCA 2009 unless a harbour revision order was also made extinguishing those rights or permitting interference. The claimant argued that the test for determining whether there is an unlawful interference with public rights of navigation is the same as the test for determining whether an interference with a public highway is actionable i.e. any interference which is more than de minimis.

The MMO argued, that if the Court accepted the Claimant's test for unlawful interference under s.69(1)(c), the MMO would have to refuse applications for marine licences in most or nearly all cases unless a harbour revision order is also obtained. Moreover, the claimant's approach was not substantiated by the language of s.69(1) , or elsewhere in MCAA 2009. If a harbour revision order was required to legitimise what would be an unlawful interference with public rights of navigation it would be a freestanding legal requirement, not dependant on s.69(1)(c) or the existence of the marine licensing regime.

The judgment

Mr Justice Holgate, held that s.69(1)(c) is not directed at interference with public rights of navigation but 'whether the proposal would interfere with legitimate uses of the sea, including but not limited to, use of the sea for the purposes of navigation, and if so whether any such interference would afford a sufficient ground for refusing the application.'

The MMO in this case had discharged its s.69(1) duties as it had gone to substantial lengths to collect evidence on the navigation issues. In this instance the spending beach and area of sea affected by the works are used for only very limited navigation purposes and relatively infrequently. The proposed activities would therefore not interfere with navigation or safety of navigation in the entrance of the marina so as to justify refusing the marine licence application.

Parliament intended to model the marine licensing system on terrestrial planning control, with adaptions. The new system was therefore intended to enable a balance to be struck between competing uses and to be risk-based. Consequently, It was held that whilst regard must be given to the three statutory objectives in s.69(1) they are not absolute requirements. The decision on the weight and merit to be given to that subject in the circumstances of the particular case remains with the decision maker i.e. the MMO.

Hence, on a true construction of MCCA 2009 s.69(1) the MMO, in granting a marine licence, was not obliged to consider whether the proposed works for a development at Brighton marina would amount to an actionable interference with public rights of navigation.