We lost and here’s why
On 29th July permission to proceed with a Judicial Review [JR] of the Isle of Wight Council’s [IWC’s] Bembridge Harbour planning decision was refused. This frustrated BHT’s hoped-for result in the interest of the harbour and its environment, with the judge ruling that there were insufficient grounds to challenge Bembridge Investments Limited’s application for houses and new facilities around the harbour. Unsurprisingly the developer, who would gain all predicted profits, supported IWC as an interested party, while the Statutory Harbour Authority [SHA] took no part and incurred no costs.
Of necessity this JR focused on just a small number of important and environmental issues and could not address all of the issues of concern, but clearly our counsel failed to convince Judge Lang on those few points.
We still firmly believe the planning decision does not deliver the material benefit to the SHA, needed to justify an Enabling Development. This is because the developer makes all the predicted profit at direct cost to the SHA, which must pay the developer full rent for any improvement, as well as losing most of its operational, entertainment and car parking space. However, Planning Authorities may exercise judgement. We are advised that even when such judgement seems unreasonable or irrational, unless there is breach of law that decision is effectively unchallengeable. This further narrowed the grounds we could take forward.
Also, to some extent we may have been the victims of our own success, having worked hard along the way to see errors addressed as and when we came across them. Having already achieved so much by our open approach the only grounds left to be taken forward in JR were those that our advisers say the IWC had not properly addressed in the public interest.
What BHT achieved along the way
Earlier in the planning process BHT openly shared QC opinions and expert views with the IWC, who took these on board, correcting some of the worst errors and so securing advantages for the SHA and better planning. These wins include:
- A secure lease of shoreside facilities on open terms, as opposed to no security of tenure and opaque arrangements as at present.
- A report on profits leading to an overage clause to capture excess profits for the SHA, when there was no capture of any profits in the original application.
- Correcting a misinterpretation of the DVS viability report that would have seen the developer getting the first £2.2m of any profits made before the SHA got anything at all , rather the £1.2m threshold the DVS recommended.
- The dismissal of a proposal to force the SHA to buy on artificially high terms (That is the same SHA which had previously advised the IWC it could not afford a purchase!)
- An appropriate assessment to consider ecological impacts. (The IWC had failed to carry this out before making their first decision)
- Extensive conditions in the planning permission that should ensure better control and monitoring.
Holding the SHA to account
On a brighter note, since the prospect of the two JRs (of which this was the first) pressure to demonstrate compliance with harbour legislation has increased, and we have already seen indications of improved decisions by the SHA with some pile repairs, some land based dredging being restarted and some tentative moves towards a critical groyne repair. And if Mr Thorpe is true to his word, we can expect much more, as he has always said that so much could progress if only BIL got its planning permission. We watch with interest.
Looking ahead to JR2
BHT’s second JR challenges the actions of the SHA. In this the issues of law that we challenge on are clear and the SHA’s counsel already concede that BHIC has made substantial loans of the SHA’s own money to other Thorpe-owned companies, and that this ground of the Claim is ‘arguable’ and so should be addressed by the court. Our forensic accountants support our claim in that the loans appear to be approximately £630,000 . Amongst our aims are the immediate repayment of this sum to the SHA. It won’t escape readers’ notice that these claimed breaches of the ’63 Habrour Act involve money that could have been available for dredging, groyne repair or could have paid for new facilities without the need for the contested housing development.
Chris Attrill, Jonathan Bacon, William Bland , Jeremy Gully (chair), Phil Jordan, Norman Marshall, Sara Smith, as Trustees