High Court dismisses judicial review against council after finding Bibby Stockholm barge lies outside area subject to planning control

In R (Parkes) v Secretary of State for the Home Department [2024] EWHC 1253 (Admin), Mr Justice Holgate concluded that the seabed above which the Bibby Stockholm is moored is not land subject to planning control, and therefore the location of the barge “does not fall within the definition of “land” in the TCPA 1990”.

The three-storey Bibby Stockholm is docked at Portland Port in Dorset, for the purpose of accommodating asylum seekers.

The Home Office began transferring people onto the barge at the beginning of August 2023.

The Claimant, Ms. Parkes, who was the mayor of Portland for 2023/24, contended that the mooring of the barge amounted to “development” - a material change in the use of that land – and so required planning permission.

She asked the court to grant a declaration that Dorset Council (DC), the local planning authority, had “erred in law” when it decided that the area occupied by the barge falls outside planning control.

The claimant relied upon five grounds of challenge:

The boundaries of DC encompass Portland Harbour;
By virtue of being moored indefinitely in Portland Harbour, the Bibby Stockholm has become an “accretion from the sea” within the meaning of s.72 of the Local Government Act 1972, and therefore falls within planning control;
Even if the geographical extent of the administrative area of DC does not extend further into the harbour than the finger pier, applying a purposive interpretation of the legislation, DC’s enforcement powers apply to the Bibby Stockholm;
DC has erred by failing to consider taking enforcement action in respect of any breach of planning control through a material change in the use of the quay, the finger pier and access road;
If on an ordinary interpretation of the legislation, DC would not have power to take enforcement action in relation to the area in which the Bibby Stockholm is moored, it nevertheless does have such a power by interpreting the legislation in accordance with the Marleasing principle, to give effect to the requirement of the Environmental Impact Assessment (“EIA”) Directive (Directive 2011/92/EU) that there be an assessment of the likely significant effects of relevant projects on the environment.

On ground 1, Mr Justice Holgate found that neither the area of the seabed above which the barge was moored, nor Portland inner harbour, nor the “internal waters” in Weymouth Bay, form part of the area of Dorset Council, and so the ground failed.

He added: “In any event, even if the claimant had succeeded on that issue, I agree with DC, the Secretary of State for the Home Department, and the Secretary of State for Levelling Up, Housing and Communities that that would be insufficient to make the location of the Bibby Stockholm subject to planning control. It is not enough that a site should fall within the area of a Local Planning Authority. It must also constitute “land”, the subject to which I turn next.”

On ground 2, the judge noted that even if a barge is moored in one position for a substantial period of time it remains a chattel. It does not become land or an accretion to land.

Dismissing ground 2, Mr Justice Holgate said: “The claimant has not shown that the sea bed within the harbour formed part of the county for the purposes of local government administration or rating when the LGA 1888 was enacted or subsequently”.

On ground 3, the court ruled that a local planning authority does not have power to serve an enforcement notice in relation to development outside its area. That would be contrary to the statutory scheme and clear case law.

Further, “the claimant’s reading is inconsistent with the language used by Parliament, which confines planning control to “land”, including “tidal lands”, but not the sea bed below the low water mark (LWM). A purposive construction cannot involve rewriting the legislation”, said the judge.

Ground 3 was dismissed.

Turning to ground 4, the judge found no merit in the complaint that Dorset Council had failed to consider taking enforcement action. He said: “An allegation that an authority has failed to take action depends upon a correlative obligation or duty to take that action. But the claimant has not identified any timescale within which DC was legally obliged to reach a decision on enforcement.

“Accordingly, she has not advanced any proper legal basis for saying that DC has acted unlawfully, and that the court is entitled to intervene, because the authority has not already reached a decision on enforcement action or issued an enforcement notice.”

Ground 4 was also dismissed.

Finally, on ground 5, the judge concluded that the positioning of the Bibby Stockholm in Portland Harbour and its use to accommodate asylum seekers, even for 18 months or so, does not qualify as a project for the purposes of the Environmental Impact Assessment (EIA) Directive.

He said: “The minimal works carried out on the quayside could not conceivably have amounted to an “urban development project” within Annex II, even on a broad purposive interpretation. The claimant has not provided any real information about the construction of the barge. But no doubt it was the sort of work which would typically be carried out in whichever shipyard was involved. Any environmental effect of that work would have been an effect of the use of that shipyard as part of the construction of any number of vessels. (Judge’s emphasis).

“That effect would not be relevant to determining whether the mooring of the Bibby Stockholm in Portland Harbour involved the carrying out of a project there, any more than if some other vessel were to be moored and used in the Harbour for a substantial period of time.”

Dismissing the application for judicial review, Mr Justice Holgate concluded: “I consider ground 1 to have been arguable and I grant permission to apply for judicial review to that extent only. However, for the reasons set out above, ground 1 must be rejected.

“In any event, the location of the Bibby Stockholm does not fall within the definition of “land” in the TCPA 1990 and for that further reason this part of the claim must fail.

“For the reasons set out above, grounds (2) to (5) are unarguable and I refuse permission to apply for judicial review in relation to those matters.”

A Dorset Council spokesperson said: “Dorset Council was confident that the planning for the barge sat outside of our jurisdiction. Although this case has put a burden on the local taxpayer in terms of time and costs, we’re pleased that the ruling is final. We will, however, continue to investigate planning status for the facilities onshore at Portland Port”.

Deighton Pierce Glynn Solicitors, who represented the Claimant, said: “Our client is disappointed that a loophole continues to exist whereby the Home Office can avoid local authority oversight of its use of the barge to accommodate asylum seekers in Portland. The judgment finds that neither the marine licensing regime nor the terrestrial planning regime applies to the barge, and the Court was unwilling to interpret legislation to close this loophole and give effect to the purpose of planning law, which is to allow local communities to have a say over the development in their area. The Claimant is currently considering whether to appeal the judgment.

“Our client is pleased however, that the judgment confirms that it is within the hands of Dorset council to take enforcement action which would bring the use of the Bibby Stockholm to an end. As confirmed in the judgment, the position of Dorset Council is and has always been that the Council does have the power to exercise planning authority over the onshore aspects of the Bibby Stockholm operation, including the quayside security, embarkment, smoking and transportation areas. The Council has stated throughout the proceedings that it ‘continues to consider’ whether it should exercise planning control over those onshore areas. In fact, our client’s fourth argument failed precisely because the Court found that the Council is considering to take this action, and therefore not refusing to do so. The Claimant strongly hopes that after a full year of consideration, the Council will now finally take action.

“Our client is deeply grateful for the solidarity and support of the many people who have supported the legal action, including many contributors to the crowdfunder, which made the case possible, and campaigners and local residents raising the concerns and perspectives of those onboard and directly affected.”

Lottie Winson