Bryn Michael Chetwynd and Another v Barry John Tunmore and Another
|England & Wales
|His Honour Judge Reddihough
|04 February 2016
| EWHC 156 (QB)
|Queen's Bench Division
|04 February 2016
|Case No: HQ11X02516
 EWHC 156 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
His Honour Judge Reddihough
(Sitting as a Judge of the High Court)
Case No: HQ11X02516
Mr Wayne Beglan (instructed by Simon Jackson Solicitors) for the Claimants
Mr Wayne Clark and Mr Joe Ollech (instructed by Mills & Reeve LLP) for the Defendants
Hearing dates: 2–4, 7–11, 14–15 December 2015
This is a claim for damages and injunctive relief by the claimants against the defendants arising out of their respective ownership of adjoining areas of land in rural Norfolk. In essence the claimants claim that the defendants have excavated lakes on their land which have adversely affected the land owned by the claimants and in particular the water levels in fishing lakes thereon. The dispute giving rise to the claim has a long and involved history and it is necessary to set out some of the background to it.
The claimants jointly own land known as Fen Lakes Fishery (the Fishery), Carleton Rode, Norfolk. The land is an area of approximately 3.5 hectares which has on it six lakes totalling about 1.5 hectares in size. It appears that the lakes have been there since at least the 1970s. This land was purchased by the claimants in December 2004 and their ownership was registered on 15 January 2005. The previous joint owner, Mr Robin Ford, had been operating the Fishery as the Fen Angling Club and through the sale of day tickets to anglers who fished the lakes. The Fishery is situated within Carleton Rode Fen (the Fen), an area of some 12.6 hectares, which has been designated as a Country Wildlife Site. The river Tas flows along the southern boundary of the Fishery.
Adjacent to the Fishery and also in the Fen is an area of about 7 hectares of land of which the defendants are the joint owners. They became the owners of that land on 17 January 1995, having purchased it from the estate of Harry Rush, who had also owned the Fishery before he sold it to Mr Ford and his co-owner in 1992. The first defendant, Mr Barry Tunmore, has lived in Carleton Rode since 1974. In 1986 he purchased White Lodge Farm and he and the second defendant have lived there since their marriage in 1987. White Lodge Farm is a short distance from their land in question in the Fen, but on the other side of Fen Road which runs to the north of that land and the Fishery.
Subsequent to the purchase of the defendants' land in the Fen the first defendant excavated four lakes upon it. For ease of identification in this case the six lakes at the Fishery (each of which has a name) have been designated Ponds A-F (although C and D are joined), and the lakes on the defendants' land as Lakes 1–4 (although Lakes 2 and 3 form one body of water). The Lakes are to the west of the claimants' land, with Lake 1 being relatively close to Pond A. There is some doubt about precisely when the lakes on the defendants' land were excavated but according to the first defendant Lake 1 was completed in 2001, Lake 2 by June 1999, Lake 3 in 2000 and Lake 4, which is on the south side of the River Tas, in 2005/6. Thus all the Lakes except Lake 4 had been completed prior to the claimants' purchase of the Fishery. The total surface area of the Lakes is approximately 8,200 m 2.
In 1989, when Mr. Robin Ford was already engaged in the running of the Fen Angling Club at the Fishery, which at that time was still owned by Mr. Rush, he made a planning application for the excavation of three fishery lakes and a parking area on the land in the Fen now owned by the defendants. It appears that the application was made with a view to increasing the size of the Angling Club by having the three additional lakes. There were various objections to the planning application and it was refused by the South Norfolk District Council (SNDC) in August 1989, the first reason for the refusal being the proposed development would involve the destruction of a nature conservation site of county significance through physical works and alteration in the drainage. It would seem that, by reason of this refusal of planning permission, Mr. Ford purchased only the Fishery from Mr. Rush in 1992 but not the land now owned by the defendants. There is an issue as to whether the defendants knew of this planning application and its refusal before and/or after their purchase of their land in the Fen in 1995. Prior to the excavation of the Lakes on their land, the defendants did not make any planning applications for such works.
The claimants' purchase of the Fishery in 2004 was with a view to continuing to run it as a commercial fishery, as Mr. Ford had done. The first claimant had recently retired from the army and had a longstanding interest and involvement in angling.
The defendants assert that initially the construction of Lakes 2 and 3 arose from the widening and extension of existing dykes and tributaries on their land. Once the Lakes were completed, they did not intend to utilise the land for a commercial fishery but they stocked the Lakes with fish. Initially they were fished by family and friends, but then local anglers became interested and the first defendant formed a members club for anglers at the Lakes and also made day tickets available. The profits of this angling operation, while it continued up to 2010, appear to have been less than £1,000 per annum.
It appears that, subsequent to the excavation of Lake 1 in 2001, the defendants agreed with Mr. Ford that a pipe be placed between Lake 1 and Pond A so that excess water from Lake 1 would feed into Pond A. This pipe was no longer in position when the claimants purchased the Fishery.
The local planning authority (SNDC) became aware that the Lakes had been excavated without the required planning permission and in May 2007 resolved to take enforcement action to have the land restored to its original state. The defendants through an agent then made an application for a certificate of lawful use of the land on the basis that the Lakes had existed for more than ten years so that the absence of planning permission was obviated. That application falsely stated that the Lakes had been in existence since 1995. Subsequently, the application for a certificate of lawful use was withdrawn and instead the defendants made two applications in September and October 2007 for retrospective planning permission for Lake 4 and Lakes 1, 2 and 3 respectively. In June 2008, SNDC allowed the applications and granted retrospective planning permission for the Lakes with a number of conditions attached, including a condition that outfall from them should not exceed 20 m 3 per day, that being the limit over which a water abstraction licence would be required under the Water Resources Act 1991.
The first claimant had noted that from June 2005 the water level in the Ponds at the Fishery dropped and that the situation deteriorated over the following years. The first claimant asserts that this reduction in water levels in the Ponds has been caused by the excavation of the Lakes on the defendants' land. He considered that the retrospective planning permissions for the Lakes should not have been granted and he made an application for judicial review to quash them. The defendants did not participate in those proceedings. The judgment in the judicial review application was delivered by Collins, J. on 13 th May, 2010. He quashed the retrospective planning permissions for the Lakes on the basis that the decisions to grant the permissions were inconsistent with environmental policies which applied to the Fen and found that there had been a failure to require an environment impact assessment within the relevant regulations. He also found that the construction of the Lakes gave rise to an abstraction of water from the underground strata and that any outfall or overflow of such water from the Lakes amounted to an abstraction of water for the purposes of the Water Resources Act 1991. The defendants accept that the Lakes do give rise to such abstraction.
Following the decision in the judicial review proceedings, SNDC asked the defendants to comply with the Environmental Impact Assessment Regulations by preparing an environmental statement. Thereafter, on 29 th September, 2010, SNDC issued to the defendants an enforcement notice in respect of the breach of planning control occasioned by the construction of the Lakes without planning permission. The enforcement notice included a requirement for the defendants to submit an environmental assessment in accordance with the Environmental Impact Assessment Regulations, indicating the hydrological and ecological impact of the Lakes; and for them to implement a scheme of works to be approved by SNDC to reduce the total abstraction of ground water from the site to less than 20 m 3 per day and to remedy the adverse ecological impacts of the unauthorised construction of the Lakes. The enforcement notice took effect on 29 th December, 2010 and compliance was required by 29 th June, 2011.
Thereafter, there has been a great deal of work and monitoring undertaken by Harrison Environmental Consulting on behalf of the defendants and Cascade Consulting on behalf of SNDC regarding the effect of the Lakes on the Fen and the work which is required to remedy the ecological impact of the Lakes. A considerable number of reports and assessments has been prepared by these consultants. There has also been the involvement of the Environment Agency, which on 15 th October, 2012,...
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