A decision by the Marine Management Organisation to grant a marine licence relating to development in Brighton Marina has been upheld in the High Court following a Judicial Review.

On Friday 23 June the Hon. Mr Justice Holgate handed down his judgement at the High Court, London, following a hearing which took place on 22 and 23 March 2017. In doing so he concluded the MMO had fulfilled its obligation under section 69(1) of Marine and Coastal Access Act 2009 (the 2009 Act) ‘admirably’.

In bringing a Judicial Review lawyers acting on behalf of a local resident challenged the way in which the MMO reached its decision in February 2016 to grant a marine licence for phase 2 of the development under section 71 of the 2009 Act.

Lawyers claimed that MMO had acted unlawfully in giving consent to the Brighton Marina Company Limited whose subsidiary, the Outer Harbour Development Company Partnership LLP, is carrying out the development. In particular they argued that MMO failed to consider whether phase 2 of the Brighton Marina development would amount to an actionable interference with public rights of navigation.

They also claimed that in instances where works unlawfully interfere with public rights of navigation MMO is not empowered to issue a marine licence unless a harbour revision was also made, extinguishing public navigation rights or permitting interference with the same.

The judgement

In his judgement Mr Justice Holgate stated that ‘the Claimant’s argument involves a fundamental misunderstanding of MCAA 2009, and of section 69(1) in particular…’ finding that MMO had gone to ‘substantial lengths to collect evidence on the relevant navigation issues’ and ‘had consulted and re-consulted on the relatively narrow points raised by the claimant’.

The judgement made clear that the MMO’s decision that the proposed activities would not interfere with navigation or safety of navigation in the entrance to the marina so as to justify refusing the application was a correct application of the relevant legislation. It also set out that ‘there was no statutory requirement or need to consider whether the effect on public rights of navigation would also be actionable’.

The judge also denied the claimant the right to appeal the judgement.

More information

The marine licence and related documents are available to view on the public register (case reference MLA/2015/00349/2). The MMO has also updated the relevant selected cases page of its website.

The Judicial Review process considers the lawfulness of a decision or action made by a public body. They are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached. More information about the Judicial Review process is available on the Courts and Tribunals Judiciary website.

A drawing of the Schmadribach Waterfall is at risk of being exported from the UK unless a buyer can be found to match the asking price of £68,750.

Arts Minister John Glen has placed a temporary export bar on the drawing, by Austrian Romantic artist Joseph Anton Koch, to provide an opportunity to keep it in the country.

The preparatory study was made for J.A. Koch’s most celebrated composition, The Schmadribach Waterfall near Lauterbrunnen, which is famed for its spectacular scenery.

Dating from around 1793, the work is typical of the highly precise studies Koch made for compositions, using black chalk and heightening the contours in black ink.

The drawing is an important work by a major figure of early 19th century painting. Koch’s depictions of Switzerland were extremely influential and helped to popularise Alpine scenery among European artists.

He was especially popular with British collectors during his lifetime, but only seven of his drawings remain in UK public collections.

Arts Minister John Glen said:

This striking study for Joseph Anton Koch’s most celebrated landscape shows why this leading Romantic painter was so highly regarded by British artists.

I hope that a buyer comes forward to help keep it in the UK so that more people can learn about this artist’s creative process and the development of his art.

The decision to defer the export licence follows a recommendation by the Reviewing Committee on the Export of Works of Art and Objects of Cultural Interest (RCEWA), administered by The Arts Council.

RCEWA member Lowell Libson said:

Joseph Anton Koch is a pivotal figure in the European Romantic movement at the turn of the eighteenth and nineteenth centuries and enjoyed a significant relationship with British patrons and collectors who particularly appreciated his ‘heroic’ Alpine landscapes.

Very few of Koch’s many important works originally in British collections now remain in the UK. This unusually highly elaborate drawing was made in preparation for the painting that is considered to be his masterpiece.

The retention in this country of this beautiful and important drawing would greatly add to the way in which British institutions can tell the story of European Romanticism and of the development of British taste and patronage.

The RCEWA made its recommendation on the grounds of the drawing’s outstanding significance for the study of Romantic landscape art and Swiss scenery.

The decision on the export licence application for the drawing will be deferred until 27 September 2017. This may be extended until 27 December 2017 if a serious intention to raise funds to purchase it is made at the recommended price of £68,750 (plus VAT of £2,750).

Organisations or individuals interested in purchasing the drawing should contact the RCEWA on 0845 300 6200.

An image of the drawing can be downloaded via our flickr site

ENDS

Notes to editors

1. Details of the drawing are as follows: The Schmadribach Waterfall near Lauterbrunnen, Switzerland A faint sketch of a mountainous landscape Black chalk, pen and black ink, lightly squared in black chalk, indented for transfer, 44.3 x 35.8cm (17 ½ x 14 1/8 in.) Dated around 1793 The drawing is un-faded and in good condition for a work of its date and technique
2. Collection of Brian Sewell (1931-2015); his sale, Christies, King Street, London, 27 September 2016, lot 60 (estimate £20,000-30,000); sold at £68,750.
3. The Reviewing Committee on the Export of Works of Art and Objects of Cultural Interest is an independent body, serviced by The Arts Council, which advises the Secretary of State for Culture, Media and Sport on whether a cultural object, intended for export, is of national importance under specified criteria.
4. The Arts Council champions, develops and invests in artistic and cultural experiences that enrich people’s lives. It supports a range of activities across the arts, museums and libraries – from theatre to digital art, reading to dance, music to literature, and crafts to collections. www.artscouncil.org.uk.