Keep US Rural v Newport City Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dove |
| Judgment Date | 18 January 2016 |
| Neutral Citation | [2016] EWHC 698 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 January 2016 |
| Docket Number | CO/6033/2015 |
[2016] EWHC 698 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Cardiff Civil and Family Justice Centre
2 Park Street
Cardiff
South Wales
CF10 1ET
Mr Justice Dove
CO/6033/2015
The Claimant appeared in Person
Mr T Comyn appeared on behalf of the Defendant
Mr J Pike appeared on behalf of the Interested Party
Introduction
The claimant is a company which has been formed by local residents to preserve the local environment of their rural community of Michaelston-y-Fedw. They represent local residents who are overwhelmingly opposed to the development which is the subject of this judicial review and which is described in the planning permission granting it consent in the following terms:
i. "INSTALLATION OF A GROUND MOUNTED PHOTOVOLTAIC (SOLAR ELECTRICITY) PLANT (4.85MW), INCLUDING THE ERECTION OF TRANSFORMERS AND OTHER ANCILLARY EQUIPMENT, TRACKS, DRAINAGE, FENCING, CCTV, LANDSCAPING AND ALL ASSOCIATED BUILDING AND ENGINEERING OPERATIONS, FOR USE FOR A PERIOD OF UP TO 25 YEARS AFFECTING PUBLIC RIGHTS OF WAY 400/61, 400/62 AND 400/63. AMENDMENT TO ORIGINAL PROPOSAL, COMPRISING A REDUCTION IN SITE AREA AND AMENDMENT TO PROPOSED ACCESS POINT."
Planning permission for this development was granted by the defendant on 22nd October 2015 for that part of the site for the installation which was within their area. There is a further part of the site which is not within their area but falls within the jurisdiction of Cardiff City Council. Cardiff City Council granted planning permission for that part of the scheme over which they had power on the 13th November 2015.
The interested party is related to the applicant for planning permission as a sister company. It is the majority shareholder of the company which holds the option for a lease over the site and also controls the right with the power networks to make a connection to those networks. For ease of reference the applicant for planning permission and the beneficiary of that planning permission will within the course of this judgment both be referred to under the portmanteau term "the interested party" for ease of reference.
The matter has been brought on before me on an expedited basis as a rolled up hearing at which I have been asked to determine both whether or not permission to apply for judicial review should be granted and also whether or not, in the event of permission being granted, that the ground has been substantively made out.
The History
On 26th September 2013 the interested party applied for a screening opinion in relation to whether a larger proposal including the application site would be environmental impact assessment development. In addition to other matters the request provided information in relation to the site in the following terms:
i. "3. None of the site is located within flood risk Zone C2. Part of the site is located in flood risk Zones B1 and C1 but the development does not comprise "highly vulnerable development" as defined in TAN 15: Development and Flood Risk."
On 18th October 2013 the defendant reached a decision in relation to that screening request. The letter, which had been written on behalf of the interested party, was referred to during the course of the determination and also within the reasons for concluding that the development would not be likely to have significant environmental affects. The officer who made the assessment addressed environmental concerns in relation to ecology and nature conservation, flooding, visual impact, impact on local population and cumulative effects. He did not identify, under any of those headings, any matters which would amount to likely significant effects which would give rise to the need for an environmental impact assessment, nor did he conclude taking those matters as a whole and holistically that likely significant effects would arise.
In relation to flooding he observed as follows:
i. "Flooding
ii. The site is not considered to be at risk from flooding as it is not within any flood risk area. However, given the scale of the development and the ground penetration required to install the solar panels I would suggest that a hydrology assessment supports any formal submission. Natural resources Wales (NRW) has also requested such an assessment. NRW has also requested that a flood consequence assessment be submitted with any application. I am not convinced that such a request is warranted and the request has come from the arm of NRW that would have been the Countryside Council for Wales."
On 3rd April 2014 the interested party submitted their planning application for 18.5 megawatt solar farm on an application site of 45 hectares. On 9th April 2014 the defendants' officers completed what is referred to as an "EIA checklist". This was not a re-screening of the development or a retaking of the decision which had already been reached on 18th October 2013. It was, essentially, to determine whether anything had changed since that decision had been reached on 18th October 2013. Having noted on the checklist form that there had been a pre-application screening, the form was completed as follows:
i. "A2. Have the proposals or environmental considerations changed since that date?
ii. No. Copy the pre-act screening to planning register and proceed with application….
iii. The proposal will not have potential to cause environmental effects because: see copy of screening opinion 18/10/13."
Thus in the review which was undertaken on 9th April 2014 no change in the environmental circumstances of the site was observed and the negative screening decision was sustained. Accompanying the application was a Flood Consequences Assessment (the FCA) dated February 2014. On 24th April 2015 the application was amended by the interested party to one for a 4.85 megawatt installation on 17.5 hectares of land. The subsequent officer's report, to which I shall turn in due course, suggests that this amendment was driven by the desire to remove best and most versatile quality agricultural land from the development proposal site such that the site would be solely grade 3B land.
A sequential test report was produced seeking to examine whether or not there were brownfield sites which were suitable and available alternatives to the site which was being proposed in the application. A revised FCA was submitted dated March 2015 to address to the smaller site area which was now being promoted. In relation to sources of flooding the FCA noted as follows:
i. "Fluvial or Tidal Flooding.
ii. 3.1. The Welsh Government Development Advice Map (DAM) indicates the application site area is mostly in development advice Zone A: considered to be at little or no risk of fluvial or tidal flooding. Parts of its western upper extent is in development advice Zone C1: areas of the floodplain which are developed and served by significant infrastructure, including flood defences. Part of Zone C1 is surrounded by Zone B: Areas known to have been flooded in the past evidenced by sedimentary deposits …
iii. 3.4 See Appendix F with the proposed development superimposed over the Flood Zone Map data. Note that only the flood resistant framed solar panels and access tracks are proposed to be placed in the lower western extent that is the Rymney River floodplain.
iv. 3.5 The site is not tidal therefore there is no risk of tidal flooding, however it is considered that there is a risk of fluvial flooding to the proposed development."
During the course of the presentation of the case I was furnished with better quality colour drawings than those which had originally been provided with the hearing bundle. The parties endeavoured to identify the extent of the site which was the subject of Zone C1 and indeed, as described in the written text that I have just quoted, there is an area which is small in extent, in particular in proportion to the whole of the site, within the western upper portion of it which has been identified as within Zone C1, and in particular within the zone which is subject to a frequency of flooding of 1 in 100 years.
The document went on to describe flooding from sewers in the following terms:
i. "Flooding from Sewers/Drains.
ii. 3.11. No sewers are present at or upstream of the site. It is considered there is no current risk of flooding from sewers."
The overall conclusions of the document were set out in the following terms:
i. "9.1 The larger eastern extent of the site is identified by the TAN15 DAM as being in development advice Zone A and is therefore appropriate in terms of flood risk for the proposed development classification, and does not require a justification test.
ii. 9.2. Part of the western upper extent of the site is identified by the TAN15 DAM as being in development advice Zone C1, indicating development can take place if it satisfies the justification test and consequence assessment.
iii. 9.3 While part of the development, the solar panels within Zone C1, does not fully satisfy the justification test, it is considered some flexibility should be taken by the local authorities in permitting part of this development within Zone C1, for the several reasons listed in Section 8.
iv. 9.4. Existing information indicates that part of the site is subject to flood risk from fluvial and surface water flooding.
v. 9.5 There are downstream receptors that may be considered to be at risk from surface water flooding from potential increase in runoff from the proposed development.
vi. 9.6 The proposed development's drainage strategy details will fully mitigate the effects of any increased to scour...
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