In a decision dated the 20th January 2022 the Court of Appeal has roundly blocked Bembridge Harbour Trust’s (BHT) attempts to progress a judicial review against Isle of Wight Council. This would have challenged a planning decision BHT view as damaging the Harbour and its environment.
The developer Bembridge Investments Ltd has won a profitable permission, but it is far from clear that the Statutory Harbour Authority has anything to celebrate.
BHT’s objective was simple: to protect the interests of the Harbour. The justification of the ‘Enabling Development’ planning application was entirely based on enabling the Statutory Harbour Authority (SHA) to deliver an otherwise un-fundable public benefit. But the planning permission granted only assures financial benefits to the applicant development company and unless unexpected profits are made, none for the SHA which loses most of its harbour side operational land to housing. This appears contrary to the logic in planning guidance as well as the harbour and the public’s interest.
Procedurally, the court could only consider the facts as they were presented to the Planning Authority by the applicant at the time of the planning decision. Despite being alerted to many concerning issues by BHT, the IWC lacking powers of investigation were left to make judgements take based on the information they were given by the applicant as fact. It is not unlawful for a Planning Authority to make judgements after considering the information in front of them, even if fuller information would have led them to a different decision. Further information supporting BHT’s claims, but coming to light subsequently, were not considered. Critically these include the SHA’s own accounts demonstrating greater affordability than was admitted and an earlier High Court case showing the SHA had previously supported exactly the same position as BHT advised on land ownership that the Land Registry documents align with.
At the very least, the IWC still has opportunity to ensure the “best of a bad deal” by liaising with ecological bodies who are already engaged with them, careful consideration of the upcoming reserved matters applications, ongoing monitoring to see transparent performance of the planning obligations and the proper treatment of SHA’s own land to ensure it is not further disadvantaged.
Despite this setback, BHT will continue our efforts to protect the interests of the Harbour and the public, including the ongoing and very important second judicial review of the SHA itself. The directors of any company have a legal duty to promote its own best interests; an SHA also has a responsibility to the public and in the case of Bembridge, a Local Harbour Act to abide by. We seek to challenge Bembridge SHA’s actions in lending large sums to other companies also owned by the Thorpes which could and, we are advised should, have been put to use in the Harbour rather than lent to support other companies owned by Mr and or Mr and Mrs Thorpe. The second judicial review will decide whether (as we are advised) these loans were unlawful under the Local Harbour Act.
Finally, we would like to remind members and funders of what they have helped achieve in this planning process. So far these wins for the harbour 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 profits over 20% retained by the developer (if any) 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 than the 20% (approx. £1.2m) threshold the DVS recommended.
- Correcting a proposal to misapply a Corporation Tax principle that would have led to the SHA receiving less than it should, even if the overage threshold was met.
- 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)
- Correction of misinformation on sewage discharges, without which additional nitrates would have been discharged without any mitigation.
- Extensive conditions in the planning permission that should ensure better control and monitoring.
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