199-berth marina near Dudley could become 'place of main residence' for houseboats due to loophole in wording

The owner of Swindon Marina wants to allow people to live on boats as their main residence, in a move which is likely to reignite a fierce row.

Tim and Joanna Munday were granted permission to build the marina in 2009, following a long-drawn out battle with residents who said it could double the population of the village, just outside Dudley. 

Minor works have begun on the site, which will see the flooding of green belt fields in the village, but the substantive work is yet to commence.

At the time, South Staffordshire Council said it had imposed 'strict' conditions on the development, which meant that no more than two boats would be used as 'permanent dwellings', and these should only relate to the management or maintenance of the site.

But Eiser Planning and Development Consultancy now says that the wording of the condition does not preclude them from allowing people to use the moorings as their fixed residences, and has quoted a court case involving Donald Trump as evidence that the moorings could be used for residential purposes.

"It is proposed to use the moorings for the mooring of boats which may be occupied as a person’s sole or main place of residence under a temporary mooring agreement for a 12-month stay," said a statement issued by the company to the council.

"The moorings themselves are lawful under the 2010 permission and there are no operational works proposed as part of the application. 

"The condition does not specify holiday occupancy only, and the permission description does not refer to a type of occupancy of the boats on the marina."

The company cited a court case between Donald Trump's golf course in Aberdeenshire and the Scottish Government, where the Supreme Court ruled that the provision for implying terms into the permission was limited and should be undertaken with 'great restraint'.”

"In this case, the context of the condition is that the permission was granted for a 'marina', it was not granted for a ‘holiday marina’ or a 'marina for tourism' or any other qualification suggested in the description of the development as to the use of or the occupation of the boats in the marina. 

"A marina itself is not a use which implies within the natural and ordinary meaning of the term any particular type of occupation of the boats, a marina is a place where boats are moored and boats can be occupied for a variety of motivations, whether as a holiday, leisure or main place of residence."

The statement adds that no special conditions were imposed relating to occupation of the boats or the moorings. 

"For example, if there was a condition which imposed some length of stay limit of the boats or a seasonal use restriction or some register of occupants, as is often the case with holiday accommodation, it might be reasonable to conclude that the permission when read as a whole related to a permission for a particular type of occupancy. These considerations do not apply in this case."

The application said the interpretation of the condition was an objective exercise, and had to be based on the literal meaning of the words, not what the local authority might consider that the condition was intended to achieve, or whether it would have been desirable for the condition to have been expressed in different terms. 

"This is not case where it is clear what the condition would have been intended to achieve but it is equally clear that the condition has failed in this regard," it said.

The consultancy said while there was nothing in the planning consent that prevented the marina being used as a place for people to live, its client was seeking a 'lawful development certificate' to clarify the legality of the proposed development.

"Whether expressly intended or otherwise, the condition when read in an objective manner in the context of the permission as a whole would not limit or even imply a limit that as to how the boats which are moored at the marina are intended to be occupied," said the application.

"The manner of use within this application would therefore be lawful if it were to take place and a certificate should be issued accordingly."

The original plans attracted almost 300 objections, and then MP Gavin Williamson called for a public inquiry to determine whether permission was granted.

The freehold of the site is now on the market through Vail Williams estate agents for £550,000 undeveloped, or for £3.8 million as a completed project.

The advertisement says consent has been given for a 'non-residential marina'.  

The latest application will now be considered by the South Staffordshire Council planners.