QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| R (on the application of David Padden)
|- and -
|MAIDSTONE BOROUGH COUNCIL
- and -
GUY HARRISON EMILY HARRISON
MONK LAKES LIMITED and TAYTIME LIMITED
Stephen Hockman QC and Megan Thomas (instructed by Maidstone Borough Council) for the Defendant
Hearing dates: 27 & 28 November 2014
Crown Copyright ©
Judge Mackie QC :
"Change of use of land and physical works to create an extension in the fish farm, to form an area for recreational fishing. The application involves the formation of ponds and lakes, the erection of a building and the formation of a car park, the existing access to Staplehurst Road is to be improved "
Facts agreed or not much in dispute
"it uses the date of 2010 with significant unlawful development in place as its base point rather than the position in 2003, preceding the commencement of the unauthorised development a position which is the actual lawful base point".
The letter made the point that other reports submitted with the application made the same error. The letter pointed out that at a meeting between members of the Hertsfield Residents Association and senior officers of the Defendant Council on 21 March 2011 it was confirmed by those officers that:
"any application and accompanying Environmental Statement should compare the proposed development with the 2003 position"
That assertion is disputed by the Council. The letter also complained, correctly, that the Interested Parties had failed to undertake any scoping for the Environmental Statement. (Scoping is the process of determining the content and extent of the matters which should be covered in an Environmental Statement).
"Environmental Impact Assessment
The application states that Maidstone Borough Council informed MLL in October 2010 that the proposal would need to be accompanied by an Environmental Statement, but we were not contacted with any scoping documentation
Although there is no legal requirement for scoping consultations, we are disappointed that MLL chose not to engage in this process, as it can help to clarify issues concerning key environmental issues and proposed methods for survey, evaluation and assessment."
"We write to advise that following the site meeting on the 4th May 2012 with Barrie Neaves of the Environmental Agency ["EA"], a meeting you were invited to attend, we now have an explanation concerning the flooding at our client property. Mr Neaves had discussed the matter with a geologist from the EA who advised that the problems were most likely to be as a result of the unauthorised works on the neighbouring land due to the weight and compaction of unauthorised material. This has in effect reduced the capacity of the gravel aquifer layer, which is in the main contained by clay, so the water seeks the weakest path to escape and this appears to be the pond and immediate area at Hertsfield Barn. This is explained in the attached letter from an independent geologist.
We also understand that the EA will confirm their geologist's advice in writing, although we understand the EAs duty as a statutory consultee is limited to providing advice regarding river flooding.
On the facts it can reasonably be concluded that the unauthorised works have, and if the proposed were approved, will continue to have a direct impact on ground water levels at our client property such that unless the pond is continually pumped to remove the additional water that is being displaced from the aquifier layer it will cause damage to his house which is located immediately adjacent to the pond. This problem is not as a result of river flooding, surface water or ditch drainage...
we note that despite the problems of excessive ground water that has been experienced by our client since the unauthorised works, it is estimated that it will take nearly 7 years to fill the three lakes as proposed
If the 2003 permission had been lawfully implemented, following the discharge of pre-commencement conditions, the approved plans did not provide for the significant importation of materials to site or for the lake floors to be 3 metres or more above natural ground level. The existing and proposed developments bear no resemblance to that which was approved in 2003. We do not accept the assertion that the application proposals would result in lesser impacts on our client than the 2003 permission ..."
"RE: Recent excessive ingress of Ground Water into Hertsfield Barn Pond
The local geology, rocks and sediments of an area can have a significant impact on the local water-course and groundwater flow patterns. Human activity on the other hand can detrimentally and easily change the natural water-course balance or direction of groundwater flow.
The geology of the southern area of Maidstone Borough, including Staplehurst, the River Beult and Hertsfield Barn is underlain by Weald Clay capped by 'Drift' deposits of sand and gravels (see Figure below).
Weald Clay, like many other types of clay, is impermeable, which means that it acts as a vertical barrier to water flow. However, the sands and gravels of the overlying Drift are highly permeable and porous and can act as preferential flow paths for ground water into the local water-course. Commonly, the Drift deposits bordering the River Beult act a conduit for local drainage into the river. For many years this relationship has been in balance in the Hertsfield Barn area, until recently.
It is hereby concluded that compaction of the porosity and permeability system of the Drift deposits around Hertsfield Barn, from activity at the local Waste Disposal site, has significantly damaged the drainage patterns of the Drift and its flow directionality. The net effect of this impact has resulted in the continual flooding of the Hertsfield Barn pond, which now requires electrical pump emptying into the River Beult to avoid flooding surrounding properties. Local groundwater flow now appears to be preferentially diverted into the pond, as the pond was originally filled manually for many years before the Waste Disposal site development.
I believe that restoration work now needs to be carried out and drainage facilities put in place on the Waste Disposal site property to rectify this matter."
"5.3 Principle of the Development
5.3.1 the principle of the creation of lakes is accepted in the surrounding area. Whilst the site is covered by an Enforcement Notice the Council has to consider the current application on its own merits and in accordance with the Development Plan and any other material considerations.
5.3.2 The proposal is not dissimilar to that permitted under MA/03/0836. The principle of such a development on this site was considered acceptable in 2003 when the Council granted planning permission. It is the Council's view that the 2003 permission has not been implemented and is not a fallback position. However, the decision to approve the 2003 application was a decision of the Council and is a material consideration in the determination of this application to which I give some weight."
"6.1 The proposed scheme would result in a development for recreational fishing for the Monk Lake facility. It would sit alongside existing lawful recreational fishing at Mallard Lakes with an existing car park access and road.
6.2 The scheme would not result in any significant planning harm in particular in relation to flooding, biodiversity, landscape impact or residential amenity.
6.3 There are no objections from statutory consultees on the proposal and the Council will ensure full implementation within an agreed timescale through a Section 106 agreement"
" [w]hilst the Environmental Statement does not compare the proposed scheme with the 2003 position the Council has assessed the development against the 2003 position as outlined in the main report".
"The Environmental Statement [ES] that accompanies the current planning application does not use the 2003 pre-development base point for assessing the impacts of the development. This is a serious flaw in the ES process in that the starting point for assessing the impacts of this part-retrospective development should be the pre-development position. We therefore maintain that an ES which is based on a comparison between the current proposal and the onsite conditions in 2010 including the unauthorised works- is misconceived and potentially challengeable in law
the Council is being offered a fait accompli that significantly does not address the detrimental impacts of the unauthorised development specified in the Council's reasons for issuing the Enforcement Notice. In summary these are:
Flooding of neighbouring properties.
An additional letter supported by a qualified geologist has already been sent to the Planning Case Officer regarding the water levels at Hertsfield Barn, which have risen as a result of the compaction of the aquifer under the site and the consequent displacement of water to the weakest point of escape in the pond at Hertsfield Barn. The situation is deteriorating as the winter drought relents. [A photograph showing the flooding was attached]
The Flood Risk Assessment and other material submitted by the applicant do not deal with this off-site impact or provide any mitigation for it. The water levels in the pond at Hertsfield Barn are only kept to a safe level by the constant operation of pumps, even through the summer months and the dry winters of 2010 -2012 "
We believe you have received information from the Hertsfield residents expressing concern that groundwater flooding may be being exacerbated by the existence of the deposited material on the site.
Our own hydrologist has looked into this and concurs with the resident's opinion. She is currently drawing up a sketch and brief examination of how this may happen. Unfortunately it is unlikely to be available in time to inform your Planning Committee tonight.
Although we have a general supervisory duty over all forms of flooding we tend to concentrate on flooding from designated 'main' rivers, such as the River Beult. We will comment on surface water and ground water flooding where there are known pre-existing problems. In this instance it would appear that the ground water flooding problem was not pre-existing and may have been caused by deposition of material. This was not identified as an issue in the submitted Flood Risk Assessment. "
The Agency was referring to, and had seen, Dr Fox's letter.
"Good afternoon Peter
Thank you for forwarding this proposed condition and informative.
We have the following concerns.
There is an existing groundwater flooding problem possibly resulting from the material that has already been deposited on site. This matter needs to be investigated and remediated prior to any further material potentially being imported on site, especially as this is a part retrospective application.
Regarding the wording of the condition itself, I understand that when referring to "groundwater controls" you have discussed with Barrie the option of abstracting groundwater to reduce the water level as one possible control, a further borehole being used to monitor water levels. It should be noted that this may be a short term solution, however it is unsustainable and there are risks, particularly if the abstraction ceases for whatever reason. It should also be noted that we believe that this activity could require an abstraction licence in the near future, and we cannot guarantee that a licence would be issued. If compliance with this proposed condition hinges on the applicant being able to put in place groundwater controls is there not the risk this condition may never be complied with, therefore is it a valid condition?Without further investigations into the groundwater flooding situation we cannot at this time identify if there are any other possible options for groundwater controls. This is something the applicant will have to look into. It is likely however that the potential deposition of additional material will only exacerbate the existing flooding of the nearby property."
"[i]n terms of the Environment Agency and the works undertaken by the hydrologist, the full details of that aren't available but I have discussed this with the Environment Agency and the worst case scenario is that the hydrologist confirms that the groundwater is flooding on to the neighbours' property and that is a result of the imported material. To that end we have recommended the condition which requires the submissions of these ground water controls so the condition is there to alleviate those matters. So again, I don't think that there's any further information that's needed."
"Discussion regarding scenario
Given that the need to pump an increased amount of groundwater flow from the pond has coincided with:
One of the driest periods of weather on record
Very low groundwater levels in aquifers in the South-East
It is unlikely that this issue is due to increased rainfall or a general increase in groundwater. It is more likely that the increased volume of flow is coming from a local change in the immediate vicinity of the pond.
It is quite likely that the pressure of over-burden, caused by the deposit of earth on the adjacent land, has lead to a localised compression of the river terrace gravels above the Weald Clay. This, in turn, may have resulted in the local change of flow regime and an impact on the pond.
A full investigation of this site is required to ascertain what is happening to the flow regime and what is impacting it. This really requires a thorough local investigation of the water levels, flows and drainage. It is a very unusual thing to have happened, especially with the level of impact that it is having. It is for this reason that it will be very important to investigate it thoroughly before deciding on a way forward or a solution. A specialist drainage engineer, with good knowledge of interpreting groundwater level data, is likely to be required".
"I can confirm that I have spoken to Max Tant, the Flood Risk Management Officer at KCC. He was completely unaware of the Riverfield development indeed, I had to describe the location of the site to him.
I understand that you are still pumping water from the pond to prevent water ingress to your property; this despite river levels generally returning to normal summer water levels. This would reinforce our belief that the high water levels in the pond area a result of groundwater ingress, possibly as a result of changes to landform on Riverfield as detailed in the report of our hydrologist. As yet we have not seen the details of any conditions that [the Council] have applied to the planning permission.
Furthermore, I can confirm that, to my knowledge, we have received no approach for an Environment Agency Permit "
"24. Prior to the importation of any material full details of proposed groundwater controls shall be submitted to and approved in writing by the Local Planning Authority and the scheme shall be completed in accordance with the approved details
Reason: In the interests of residential amenity in accordance with policy ENV28 of the Maidstone Borough- Wide Local Plan (2000)."
"The groundwater at Hertsfield Barn does not appear to have been considered.
It is our opinion that groundwater flooding at Hertsfield Barn is more than likely caused by the excavations and waste deposited at Monks Lakes"
Disputed facts and legitimate expectation
The law- general and Grounds 1 and 2
"38. The Regulations envisage that the applicant for planning permission will produce the environmental statement. It follows that the document will contain the applicant's own assessment of the environmental impact of his proposal and the necessary mitigation measures. The Regulations recognise that the applicant's assessment of these issues may well be inaccurate, inadequate or incomplete. Hence the requirements in Regulation 13 to submit copies of the environmental statement to the Secretary of State and to any body which the local planning authority is required to consult. Members of the public will be informed by site notice and by local advertisement of the existence of the environmental statement and able to obtain or inspect a copy: see Regulation 17 of the Regulations and Article 8 of the Town and Country Planning (General Development Procedure) Order 1995 .
39. This process of publicity and public consultation gives those persons who consider that the environmental statement is inaccurate or inadequate or incomplete an opportunity to point out its deficiencies. Under Regulation 3(2) the local planning authority must, before granting planning permission, consider not merely the environmental statement, but "the environmental information", which is defined by Regulation 2 as "the environmental statement, including any further information, any representations made by any body required by these Regulations to be invited to make representations, and any representations duly made by any other person about the environmental effects of the development".
40. In the light of the environmental information the local planning authority may conclude that the environmental statement has failed to identify a particular environmental impact, or has wrongly dismissed it as unlikely, or not significant. Or the local planning authority may be persuaded that the mitigation measures proposed by the applicant are inadequate or insufficiently detailed. That does not mean that the document described as an environmental statement falls outwith the definition of an environmental statement within the Regulations so as to deprive the authority of jurisdiction to grant planning permission "and
"In an imperfect world it is an unrealistic counsel of perfection to expect that an applicant's environmental statement will always contain the "full information" about the environmental impact of a project. The Regulations are not based upon such an unrealistic expectation. They recognise that an environmental statement may well be deficient, and make provision through the publicity and consultation processes for any deficiencies to be identified so that the resulting "environmental information" provides the local planning authority with as full a picture as possible."
"56. In addition, the grant of such a retention permission, use of which Ireland recognises to be common in planning matters lacking any exceptional circumstances, has the result, under Irish law, that the obligations imposed by Directive 85/337 as amended are considered to have in fact been satisfied.
57. While Community law cannot preclude the applicable national rules from allowing, in certain cases, the regularisation of operations or measures which are unlawful in the light of Community law, such a possibility should be subject to the conditions that it does not offer the persons concerned the opportunity to circumvent the Community rules or to dispense with applying them, and that it should remain the exception.
"61. By giving to retention permission, which can be issued even where no exceptional circumstances are proved, the same effects as those attached to planning permission preceding the carrying out of works and development, when, pursuant to Articles 2(1) and 4(1) and (2) of the Directive 85/337 as amended, projects for which an environmental impact assessment is required must be identified and then before the grant of development consent, and, therefore necessarily before they are carried out- must be subject to an application for development consent and to such an assessment, Ireland has failed to comply with the requirement of that directive".
"The [decision-taker] can and in my view should also consider, in order to uphold the Directive, whether granting permission would give the developer an advantage he ought to be denied, whether the public can be given an equal opportunity to form and advance their views and whether the circumstances can be said to be exceptional. There will be no encouragement to the pre-emptive developer where the [decision-taker] ensures that he gains no improper advantage and he knows he will be required to remove his development unless [he] can demonstrate that exceptional circumstances justify its retention."
"EU law permitted the grant of retrospective planning permission in respect of EIA development (with the environmental assessment carried out after the development had started), but only in exceptional circumstances "
Grounds 1 and 2- is the application for retrospective permission of pre-existing development?
Grounds 1 and 2- exceptional circumstances
"This report has, from necessity, taken as its baseline, October 2010, when Maidstone Borough Council informed MLL of the need for an Environmental Statement to support a fresh planning application. It has not been possible to assess the situation 'on the ground' at a point before this date. The consultants preparing the Environmental Statement were instructed from that date forward. The Environmental Statement therefore looks forward, at the benefits overall of completing the project, taking into account the work that has already been undertaken on site, assessing the manner in which it can be made acceptable and providing an overall environmental benefit."
Grounds 1 and 2-Decision
Grounds 3 and 4- additional points of law
"41 Mr Straker laid emphasis upon the fact that the local planning authority felt that, in imposing conditions, it had ensured that adequate powers would be available to it at the reserved matters stage. That, in my view, is no answer. At the reserved matters stage there are not the same statutory requirements for publicity and consultation. The environmental statement does not stand alone. Representations made by consultees are an important part of the environmental information which must be considered by the local planning authority before granting planning permission.
(a) Legality of decision
62 Having decided that those surveys should be carried out, the Planning Committee simply were not in a position to conclude that there were no significant nature conservation issues until they had the results of the surveys. The surveys may have revealed significant adverse effects on the bats or their resting places in which case measures to deal with those effects would have had to be included in the environmental statement ... Having decided that the surveys should be carried out, it was, in my view, incumbent on the respondent to await the results of the surveys before deciding whether to grant planning permission so as to ensure that they had the full environmental information before them before deciding whether or not planning permission should be granted.
64 In my judgment, the grant of planning permission in this case was not lawful because the respondent could not rationally conclude that there were no significant nature conservation effects until they had the data from the surveys. They were not in a position to know whether they had the full environmental information required by regulation 3 before granting planning permission. I would therefore quash the planning permission "
" the planning authority or the Inspector will have failed to comply with [their duties under the then Environmental Impact Assessment Regulations] if they attempt to leave over questions which relate to the significance of the impact on the environment, and the effectiveness of any mitigation. This is so because the scheme of the regulations giving effect to the Directive is to allow the public to have an opportunity to debate the environmental issues, and because it is for those considering whether consent to the development should be given to consider the impact and mitigation after that opportunity has been given "
Grounds 3 and 4
Grounds 3 and 4- Decision.
Condition 24 and the importation of material.