Briefing note on Jenners Basin, Thorpe Island
Members, staff and other organisations may be aware that there is a social media page
related to the planning issue at Jenners Basin in Thorpe Island. There is a lot of
misinformation being disseminated and the purpose of this briefing note is to set out the
facts, both with respect to the planning situation and the legal proceedings.
The issue in a nutshell is a planning dispute relating to whether landowner Roger Wood
already has planning permission or not. Mr Wood believes he has by way of a covenant and
his assertion that existing rights are in place but he has taken his case to two Secretary of
State planning inspectors and a High Court judge who have all ruled that the covenant does
not constitute the permission he needs and that there are no existing rights.
Nevertheless one planning inspector’s decision, upheld by the High Court judge, was to
allow Mr Wood mooring for 25 boats, subject to Mr Wood giving information within three
months about how certain conditions such as landscaping, access and parking provision,
would be met. Mr Wood has appealed against this decision however and has said in
planning committee that mooring for 25 boats would be insufficient. The dispute and legal
proceedings only relate to Jenners Basin at the western end of Thorpe Island.
We have utmost sympathy to the residents of Jenners Basin caught in the dispute but as a
planning authority are bound by law to uphold planning legislation and these rulings.
Members and members of staff may have been upset by the unsubstantiated allegations
about the Chair, senior members of staff and the Authority in general. We have referred
these matters to the Solicitor and Monitoring Officer but to date we have not received the
evidence from the complainant required to take this any further.
Detailed information is set out below.
Location and area covered by the legal proceedings.
Thorpe Island is located within Thorpe St Andrew parish and is within a Conservation Area.
This designation is to protect the special qualities of the buildings and the landscape.
The eastern end of Thorpe Island facing Thorpe River Green, where there are around 35 to
40 boats moored, is not part of the legal action. Many of the boats are believed to have
been there for a number of years and the circumstances here are very different to those at
Jenners Basin, the area which is subject to legal proceedings.
The western end of Thorpe Island is more open and only linked to Thorpe St Andrew by a
bridge across the river. Jenners Basin is a former commercial mooring basin in the centre of
the open space which was disused and largely empty for a number of decades, but six years
ago boats began mooring there without the necessary planning permission.
On 5 January 2016 there were 25 vessels in Jenners basin, which includes one jetski, four
tenders/dinghies, two houseboats, two fully sunk boats and one workboat. Only two vessels
are known to be lived on. The land has also been developed with various structures,
including a large green container fitted with solar panels on its roof which is used to provide
power to charge batteries and pump non-drinking water from a borehole.
On 5 January 2016 there were also five boats moored on the river Yare adjacent to the
entrance to Jenners basin. Two of these are known to be lived on.
These are the only areas covered by the current legal proceedings.
The planning position and the actions of the Broads Authority
Planning permission is legally required for the use of land by anyone. There is no planning
permission in Jenners Basin for mooring or any of the development which has taken place,
including the standing of the green container. There is also no planning permission for the
mooring at the entrance to the basin. These are the views of two planning inspectors and a
High Court judge.
In 2007 the landowner Roger Wood began to move boats into Jenners basin. The full
planning history is set out below, but, in summary, Mr Wood was advised when he started to
move boats into the basin that planning permission was required and that if he continued
without it then the Broads Authority would have to take action.
Roger Wood continued to move boats into the basin so, in November 2011, the Broads
Authority served notices requiring that Jenners Basin be cleared of boats and that the green
container be removed.
Roger Wood appealed against the Enforcement Notices to the Secretary of State’s Planning
Inspectorate and a Public Inquiry was held in May 2012. In his decision in July 2012 the
Planning Inspector ruled that planning permission was needed. However he felt that some
mooring would be acceptable and granted permission for up to 12 boats subject to
conditions including that none of the boats should be lived on permanently.
Roger Wood appealed against the decision of the Secretary of State’s Planning Inspector to
the High Court on a legal technicality.
The appeal was reheard by the Planning Inspectorate at an Informal Hearing in July 2014.
In his decision in October 2014 the second Planning Inspector agreed that planning
permission was needed, however he too felt that some mooring would be acceptable and
granted permission for up to 25 boats subject to conditions, including that none of the boats
should be lived on permanently. He ordered that the information about how these conditions
would be met be submitted within three months, or the permission would lapse.
Roger Wood appealed against the decision of the Planning Inspectorate in the High Court.
This was heard in May 2015. In his decision in August 2015 Justice Lindblom upheld the
decision of the Planning Inspector that planning permission was required.
There is no automatic right to appeal against a High Court decision so instead Mr Wood had
first to persuade the Court of Appeal that he has a valid challenge with a realistic chance of
success, a process known as an ‘application for leave to appeal’. On 9 October 2015 the
Court refused Mr Wood’s application for leave to appeal after considering the matter by
exchange of papers.
Mr Wood has now taken up his right to ask the Court of Appeal to review the decision to
refuse a leave of appeal in a face to face, or oral, hearing which will be heard on 3 February
2016.
If, after the oral hearing, Mr Wood is given leave to appeal, the Court will hear Mr Wood’s
challenge against the High Court decision of August 2015. If Mr Wood is refused leave to
appeal the August 2015 High Court decision will be upheld.
In the meantime the planning permission granted for 25 boats has lapsed because Mr Wood
had not submitted the information about meeting the conditions as ruled by the court.
Furthermore he indicated at the meeting of the Planning Committee on 21 August that
permission for 25 boats would not be sufficient.
Actions by the Broads Authority
Mr Wood’s legal challenges to every decision made by the two Planning Inspectors and the
Courts indicate that he does not intend to comply with the original enforcement notices
issued five years ago. Each delay prolongs the adverse impact on the Conservation Area
and landscape. Additionally defending all the court actions instigated by Mr Wood has been
expensive for the Authority given its limited public funding and staff resources.
In an effort to bring this long running matter to a conclusion members of the Planning
Committee resolved unanimously on 21 August 2015, prior to Mr Wood’s application for
leave to appeal, to apply to the Courts for an injunction requiring compliance with the 2011
enforcement notices. This would require Mr Wood to cease all planning breaches on the site,
including the boat moorings, the development on the land and the green container.
An injunction is a remedy of last resort. Given that the Court has the power to fine anyone
breaching the injunction or impose a custodial sentence, the law requires that a Local
Planning Authority must give notice to everyone who might be affected by an injunction. This
is in the form of a ‘letter before action’ advising them of what they need to do to avoid
becoming subject to the injunction.
The law says that an injunction does not just apply to a landowner, but to anyone who has
an interest in the land. In this case, this includes anyone who has a boat moored on the site
even though they are only renting the mooring from Mr Wood.
On 6 November 2015, letters before action were only sent to everyone with an interest in the
land on the western end of Thorpe Island who would be affected by any injunction. The
Broads Authority has no power to serve eviction notices contrary to claims.
The Broads Authority is in the process of preparing the paperwork to seek the injunctions
and the Court will decide whether or not to grant our application.
Planning history
The planning history of the site goes back to the mid 1960s when various permissions were
granted to Jenners boatyard in Thorpe St Andrew for a mooring basin, wet and dry
boatsheds and other development on Thorpe Island to support a hire boat facility to be run
by Jenners.
The basin was dug and the wet boatshed constructed, but then the business went into
administration. In the early 1970s the wet boatshed was demolished and the site closed. No
further activities took place on the site, although there was occasional trespass mooring in
what was an otherwise disused and empty basin.
In the mid 1980s planning permission was granted to Carningle Ltd for housing development
on an adjacent site at Thorpe Hall as part of a package to save the grade I listed hall. There
was concern at the time that if a commercial boatyard were to start up again in Jenners
Basin that this would have an adverse impact on those living in the new housing. Therefore
a formal legal agreement (known as a Section 52 Agreement) was put in place undertaking
that if planning permission were to be given to any mooring on the island it would be
restricted to “private moorings only”. This agreement is what Mr Wood refers to as the
covenant.
In the mid 1990s the western end of Thorpe Island, including Jenners Basin, was owned by
Richardsons. In 1995 and 1996 they asked the Broads Authority for its view on whether the
company could move its hire fleet into the basin, or use the basin for private mooring. In a
letter dated 25 April 1996 the Broads Authority advised the company that the basin had not
been in continuous use, therefore the previous permission given to Jenners might have been
abandoned. In October 1996 Richardsons submitted an application seeking to establish that
the previous use was still in place, but could not provide sufficient evidence to demonstrate
continuous use, so the application was withdrawn.
In 2002 an approach was made by Knight Benjamin and Co regarding the existing and
potential uses of the western end of Thorpe Island and Jenners Basin on behalf of a third
party who was interested in buying the land. In a letter dated 19 November 2002 the Broads
Authority advised them that “ … Although there is the framework of the abandoned mooring
basin still in place, there are no ‘existing use rights’ for the basin and the area has
regenerated naturally around it. Any development of this area, therefore, is unlikely to be
seen to ‘enhance or protect’ the Conservation Area and would be resisted as having a
detrimental effect on the character of the area”.
This advice was on the basis of planning policies developed in 1997 in consultation with
Thorpe Parish Council and residents for this area which did not favour development on the
western end of Thorpe Island. Following further discussion on this with the Authority’s
solicitor, the advice to Knight Benjamin and Co. was reiterated in an email dated 21 January
2003 stating that the solicitor’s view was that the use had been abandoned.
A number of further approaches were made between 2003 and 2006, including from Knight
Benjamin and Co, regarding the lawful use of the basin. The Broads Authority was
consistent in its advice that the previous use had been abandoned and therefore no existing
use rights were in place.
In 2006 the site was purchased by Roger Wood and his business partner Geoff Yell, who
has subsequently passed away. A number of meetings were held between Mr Wood and Mr
Yell and the Broads Authority, during which the Broads Authority made clear its position that
any previous use had been abandoned and advised that any resumption of commercial use
or use for private moorings would require planning permission. Moreover, Mr Wood and Mr
Yell were advised that the current planning policies, which Thorpe residents and the Thorpe
St Andrew Town Council had been consulted on, did not support such a use due to the
impact upon the character of the Conservation Area and on the resident neighbours now
living there.
In 2007 Roger Wood started moving boats into Jenners Basin. A planning application was
submitted in March 2008 for the repair of quay heading to facilitate a mooring use, but the
application was refused on the grounds of lack of information. A repeat application was
submitted in July 2009, but was withdrawn in March 2010 by Mr Wood.
During the period 2007 to 2010 Roger Wood continued to move boats into the basin. In
June 2010 a meeting was held with Lanpro, the agents for Roger Wood, to discuss the
situation. At that meeting Lanpro stated it was their view that the previous planning uses had
not been abandoned and there was still planning permission for the mooring use.
Abandonment of a planning permission is a complex issue and is, essentially, a matter of
legal judgement. In this case Lanpro disagreed with the legal judgement which had been
made by the Broads Authority. Lanpro advised the Authority that Roger Wood would
continue to operate under what they viewed as existing rights and that it would be up to the
Broads Authority as the Local Planning Authority to pursue the matter through the
enforcement route. This is summarised in a letter dated 7 July 2010, which is attached.
In conclusion, two Planning Inspectors and a High Court judge have ruled that the Section
52 Agreement does not constitute the permission required for private moorings. The
Planning Inspector (October 2014) concluded that the Section 52 Agreement was “intended
to ensure the permanent cessation of all commercial activity on the appeal site.”
Furthermore “the then owners were clearly indicating that the former boatyard use was not
merely in abeyance but was being brought to an end”. He further concluded that “the
[current] use that is taking place does not have planning permission and constitutes a
material change of use for which permission is required.” Judge Lindblom concluded the
Inspector was correct and added “the Section 52 Agreement did not itself, and could not,
have the effect of granting planning permission for a private mooring use”.
Resolving the issues on Thorpe Island
This is a complicated case and one where Mr Wood has refused either to accept the legal
rulings of the Planning Inspectorate and the Courts, or to submit a planning application.
It is necessary for the Local Planning Authority to be clear and consistent in upholding the
planning system and its credibility. The Planning Committee was unanimous in its decision
to apply for injunctions and has supported the legal process to bring the breaches on this
site to a close. In taking this forward, the Broads Authority is receiving support for this
approach from the Thorpe St Andrew Town Council, the local District Councillors and many
of the local residents, as well as wider Broads users.