High Court gives Bembridge Harbour Trust permission to proceed with a Judicial Review of Bembridge Harbour’s Management.
On 1st October Judge Lang granted BHT leave to pursue the Judicial Review of the Harbour Authority on the ground of it having made loans – which total over £630,000 – to other companies owned by Mr and/or Mr & Mrs Thorpe shown in the published accounts.
Our advice is that under section 31 of the local Harbour Act these sums should have been available to fund the harbour improvements which the directors themselves say are the harbour’s priority needs. We now await the defence argument that must be lodged within 35 days before commenting further.
These loans are the only financial transactions we could challenge under the rules of Judicial Review due to its strict time limits. Older issues of the allocation of houseboat plots sales incomes, interest payments and amounts in opaque intercompany loan accounts are amongst other concerns. Overall the sums that concern us now run to well over £1,500,000. Mr and Mrs Thorpe have always had the opportunity of explaining these matters with the transparency directed in government guidance and as requested by us, but they actively and consistently resist on the grounds of commercial confidentiality.
Mrs Justice Lang is the same Judge who rejected our claim against the Council, which has been appealed to the Court of Appeal on our barristers’ advice. On other declined grounds of challenge, our lawyers consider that Judge Lang’s findings are (again) “problematic” for a number of reasons, and there has been nothing to alter their advice to us that we were right to progress these issues.
Overall our barristers have advised that we would have a good prospect of successfully challenging this order by an oral hearing, as the court procedure allows, and they advised us to do so, funds permitting. However, we will not challenge the decision on these other grounds as the additional costs would be significant, and no matter how confident we and our advisors are of our grounds, as this ruling illustrates, results can be highly unpredictable.
We try to avoid too much technical detail in these updates, but feel it will help members if we illustrate this unpredictability with just one example of a ground that was dismissed:
In connection with the harbour development scheme, BHT claim that an area of land belongs to the SHA; Mr Thorpe claims the land belongs to BIL. BIL want to build on it with no payment to the SHA and charge the SHA rent for it and the building built on it. The resultant financial loss to the SHA would be large and long lasting. We provided extracts of the Land Registry title plans for both BIL’s and BHIC’s land, explanatory surveyor’s statement and property lawyer’s statement. The plans record the boundaries aligning with each other on the natural line of Mean High Water (the accepted boundary between land and tidal water). All this supported our claim. Our evidence also included an email direct from Land Registry which stated:
“The plan to the Conveyance dated 1 August 1972 included foreshore within its extent. On first registration, as is Land Registry practice, notice was served on Bembridge Harbour who objected to land beyond the mean high water mark being included in the title. The objection was referred to a departmental lawyer who gave instructions for the land beyond the mean high water mark to be excluded from the title and the note to be added to entry 1 of the Property Register. The mean high water mark is subject to accretion and diluvion and at the time of registration was in a different position to that shown on the plan to the Conveyance”.
The records of the SHA will therefore show that the board of BHIC defended its interest when the land was first registered, and thus agreed with BHT’s position. However, Mr and Mrs Thorpe claim the discredited 1972 plan to be correct. Judge Lang ruled that there was insufficient evidence to take our claim forward to a full hearing. Our lawyers considered this conclusion very surprising and very hard to reconcile with the facts.
We still await the ruling of the Court of Appeal on whether we can progress the separate earlier Judicial Review of the Council’s grant of planning permission for the houses. We will keep you posted.
Finally but very importantly: only public bodies can be challenged at Judicial Review and this ruling finally puts to bed the erroneous view expressed by some of our critics that the SHA is not a body accountable to, and with a duty to, the public interest.
Chris Attrill, Jonathan Bacon, William Bland , Jeremy Gully (chair), Phil Jordan, Norman Marshall, Sara Smith, as Trustees
For and on behalf of
Bembridge Harbour Trust