QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| R(U & Partners(East Anglia) Ltd)
|- and -
|The Broads Authority
|The Environment Agency
Miss Lisa Busch (instructed by the Solicitor to the Environment Agency) for the Interested Party
Crown Copyright ©
Mr Justice Collins:
"Policy INF5 Broadland flood alleviation strategy
In considering the Environment Agency's proposed Broadland Flood Alleviation Strategy, the Broads Authority will seek to ensure that the following issues are fully incorporated:
a) minimising the risk to people and property, both in the defended and undefended areas;b) adequate protection for the natural resources of the area, including the water environment, the wildlife habitats and species;c) adequate protection of the quality of recreation and navigation in the Broads;d) adequate protection for grazing marshes to ensure the continued viability of farming within the Environmentally Sensitive Area scheme;e) investigation and implementation of opportunities for environmental enhancement, for example by habitat creation or rond regeneration;f) investigation and implementation of opportunities for recreational and navigational enhancement;g) investigation and implementation of opportunities to enhance the visual amenity and landscape of the Broads, from land and water, having regard to local character;h) minimising any significant adverse impact on local communities and on the Broads landscape, wildlife and waterways from development required to implement the strategy;i) minimising any significant adverse effects on the residential amenities of occupiers in the surrounding area from development required to implement the strategy."
"We would have to construct a flood wall on a new alignment to protect neighbouring land, but Peto's Marsh would not benefit from this new defence. You would probably have to make arrangements with the Internal Drainage Board for your land to be drained following the construction of the new defence "
The letter concluded:-
"I am writing to notify you that we will now be proceeding with our plans to construct this new flood defence and to cease any further maintenance work to the defences around Peto's Marsh once this new defence is completed."
"The claim form must be filed
(a) promptly; and
(b) in any event not later than 3 months after the grounds to make the claim first arose."
The EA was not, it is said, aware of the possibility of a claim until it received the pre-action protocol letter which, albeit it is dated 24 September 2010, was not received by it until after 28 September. In the meantime, work had been commenced on 24 August 2010 on the new defensive wall and some £130,000 has, it is said, been expended. Thus the EA has suffered prejudice and this has resulted from the undue delay in making this claim.
"The proposed crosswall is approximately 800m long and will allow abandonment of over 300m of the existing defence around Peto's Marsh."
"In considering the character of the development the Local Planning Authority must consider matters including the size of the development, cumulation with other development and the use of natural resources'.
Reference is made to circular 02/99 which gives guidance on how LPAs should approach consideration of whether development requires an EIA. The Circular contains in Annex A what are described as 'Indicative Thresholds and Criteria for Identification of Schedule 2 Developments Requiring EIA'. It notes at the outset:-
"The criteria and thresholds in this Annex are only indicative. In determining whether significant effects are likely, the location of the development is of crucial importance. The more environmentally sensitive the location, the lower will be the threshold at which significant effects will be likely."
Paragraph A24 deals with flood relief works and states:-
"The impact of flood relief works is especially dependent upon the nature of the location and the potential effects on the surrounding ecology and hydrology. Schemes for which the area of the works would exceed five hectares or which are more than 2km in length would normally require EIA."
"It is noted that there are additional impacts on the adjacent land which would arise as a consequence of the proposal, namely the abandonment of the existing defences, however this does not constitute development for which planning permission is required and hence is outside the scope of the this Screening Opinion. It is concluded that the character of the development is not significant in the context of the Regulations. "
"The proposal for the construction of an 800m length of flood defence bank using excavation material would have a small scale and local impact which is reversible."
While facing the difficulty of not having any evidence or explanation from the defendant, Miss Busch was unable to enlighten me when I enquired how the impact could be reversed. That observation seems to me to be unintelligible.
"The proposal will not remove existing flood defences adjacent to the river and these will continue to offer some protection to Peto's Marsh (although in the longer term their effectiveness will reduce unless action is taken by the landowner) The new defence will however limit risk to areas to the south of the new crosswall including the SSSIs, enhancing protection to the majority of the compartment."
In Paragraph 7.9, this is said:-
"The existing flood defences protect two SSSIs from flooding. Without enhanced flood defence there is an increase (sic) risk of damage to these areas, which have such a national/international importance. The scheme would not provide any additional protection from the risk of flooding of Peto's Marsh (a non SSSI area). Whilst it is recognised that this may limit its potential use of Peto's Marsh during certain periods as outlined above the proposal will not prevent its continuing agricultural use and will positively enhance protection for other agricultural land and SSSIs."
It is difficult to conclude that at the very least the positive effects of the development are not significant.
"The Solicitor advised members that they would need to view the application from a planning perspective. In particular they needed to consider the access requirements and whether the scheme would interfere with the objector's lawful vehicular access. In relation to the concerns over viability of farming on the retained area of Peto's Marsh, this needed to be considered from a planning point of view. This was not a planning consideration. Many of the concerns expressed were land law issues and not planning considerations. She emphasised that although another application was submitted, this did not preclude the present scheme being determined. The application had to be considered on its planning merits. Both applications might be permitted. It would be up to the parties concerned to negotiate."
An adverse effect on neighbouring land resulting from a development will normally be a planning consideration. The solicitor was clearly wrong to advise the committee to disregard it.
"Where there are clear planning objections to a proposed development eg because it would injure the openness and visual amenity of those contrary to Policy G2, the more likely it is that it will be relevant, and it may in some cases be necessary to consider whether that objection would be overcome by an alternative proposal."
The claimant's scheme involved strengthening of the existing defences, which was what the EA had originally wanted to do. The evidence before me indicated that there were objections to it from the EA since it would not in its view achieve a satisfactory result. But there were planning objections to the application, by the claimant, namely interference with its right of way, an inability because of the new crosswall to access Peto's Marsh with combined harvesters and the flooding risk. One member of the committee wanted to defer consideration to enable both schemes (the claimant had applied for planning permission for its scheme) to be considered together.
"You will of course appreciate that were the Broads Authority to fail to have regard to material considerations to which it should have regard and grant planning permission for the proposed development that decision would be open to review by the Courts."
That is, of course, correct, but it is a general statement and it cannot be used to counteract a failure to put the EA on notice that a challenge to the lawfulness of the decision to grant planning permission was a realistic possibility.
"Will you please arrange to relocate the barrier wall so as to avoid unnecessary imposed change in the activities at Peto's Marsh. It is appreciated that this requirement will entail a further planning application and delay to the flood defence programme."
At no time during the negotiations were the EA advised that a challenge to the lawfulness of the grant of permission was a possibility.
"Proceedings under this regulation must not be brought unless (b) those proceedings are brought promptly and in any event within three months from the date when grounds for the bringing of the proceedings first arose unless the court considers that there is good reason for extending the period within which proceedings may be brought."
The similarity to CPR 54.5 is all too obvious.
"[an] application for the review of a decision to award or the award of a public contract shall be made at the earliest opportunity and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending such period."
While the wording is not identical to that contained in Regulation 47(7)(b) of the 2006 Regulations, it has the same effect. It is to be noted that the Irish Rule 84, which deals with judicial review, provides by 84(21)(1):-
"An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose, or six months where the relief sought is certiorari, unless the Court considers that there is good reason for extending the period within which the application shall be made."
Thus the English and the Irish provisions are to all intents and purposes identical (save for the extension to six months in Ireland where certiorari is sought).
"(1) The Member State shall take the measures necessary to ensure that, as regards [relevant] contract award procedures decisions taken by the contracting authorities may be reviewed effectively and, in particular, as rapidly as possible
(3) The Member State shall ensure that the review procedures are available at least to any persons having or having had an interest in obtaining a particular contract and who has been or risks being harmed by an alleged infringement. In particular, the Member State may require that the person seeking the review must have previously notified the contracting authority of the alleged infringement and of his intention to seek review."
" [A] limitation period whose duration is placed at the discretion of the competent court is not predictable in its effect. Consequently, a national provision providing for such a period does not ensure effective transposition of Directive 89/665."
"74. The possibility cannot be ruled out that such a provision empowers national courts to dismiss an action as being out of time even before the expiry of the three-month period if those courts take the view that the application was not made "at the earliest opportunity" within the terms of that provision.
75. It is not possible for parties concerned to predict what the limitation period will be if this is left to the discretion of the competent court. It follows that a national provision providing for such a period does not ensure effective transposition of Directive 89/665."