Mr Gary Sharp and Others v Chelmsford City Council Environment Agency (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 06 December 2013 |
| Neutral Citation | [2013] EWHC 4180 (Admin) |
| Docket Number | CO/6291/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 06 December 2013 |
[2013] EWHC 4180 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Ouseley
CO/6291/2013
and
Mr Martin Edwards (instructed by Holmes & Hills LLP) appeared on behalf of the Claimants
Mr Paul Shadarevian and Ms Emma Dring (instructed by the Solicitor to Chelmsford City Council) appeared on behalf of the Defendant (Mr Shadarevian not in attendance at hand down)
Miss Lisa Bush (instructed by the Environment Agency) appeared on behalf of the Interested Party
This is the rolled-up hearing of an application for permission to apply for judicial review of the grant of planning permission by Chelmsford City Council, the defendant, on 26 February 2013 to the Environment Agency, the interested party, for works required for a flood alleviation scheme on farmland adjacent to the River Wid near Margaretting, a few miles south-west of Chelmsford city centre. The claimants own the farmland on which a substantial part of the works will be constructed. Part of the flood storage will be on their land. Ancillary rights, such as access to part of the works, will also be required permanently over their land.
Underlying the claimants' challenge to this permission is that there is no other route available to them to challenge the imposition of this scheme on their land. There is no compulsory purchase process. The Environment Agency claims, although the claimants dispute (and that issue is not before me), that it can exercise compulsory powers of entry under the Water Resources Act to construct, maintain and access the flood alleviation scheme works, albeit that compensation would be payable.
The flood alleviation scheme works at Margaretting, permitted by the permission under challenge, consist of an earth or clay embankment, 500 metres long and up to 5.5 metres high, across the valley of the River Wid. The earthen material would largely be taken from nearby fields. Two steel sluice gates and a concrete structure would permit the flow of the Wid to be controlled. The Wid would be diverted and banked so as to take its flow to the sluice gates. There would be a control building with hardstanding to which services would be provided. There would be fencing, lighting and landscaping. A telemetry system would monitor and record the water levels. Access roads would be provided. A secondary embankment would be built off the claimants' land to protect two houses, and the existing railway embankment would be protected by a timber-clad sheet piling. These works would enable the flow of water on the Wid to be held back in times of flood on land behind the embankment for a short while, rather than flowing in a north-easterly direction around the south of Chelmsford to the confluence of the Wid and Can to the west of Chelmsford which then flows eastwards through Chelmsford to join the Chelmer. The purpose of the works would be to relieve the Can, and particularly the Chelmer, of flood flows so that far greater flood water on the Chelmer could flow through Chelmsford but remain within its banks.
The claimants contend that the grant of planning permission is unlawful because of deficiencies relating to the environmental statement and to the officer's report to committee, principally because of the consideration of the Metropolitan Green Belt in which the application site lies. I set them out as I understand their final evolution. I shall deal later with two, which Mr Edwards, who appeared for the claimants, did not regard as of any real consequence.
First, the environmental statement took a different view from the defendant on whether development was appropriate in the Metropolitan Green Belt, and that view was not taken into account, which had the effect that the environmental statement was itself not fully taken into account as required.
Second, the defendant had required further information on the role of the Green Belt in its consideration of alternatives, which information the Environment Agency had refused to apply. This meant that the officer's report ought to have informed the committee members of that so that they could consider whether they were satisfied that there was no better scheme in the Green Belt.
Third, the real project was not just these works, but also included a stage B which the Council and Environment Agency had failed to consider. In effect, there was a failure to consider relevant cumulative impacts.
Fourth, the officer's report failed — and therefore so did members — to address Green Belt policy in a lawful manner since the report was too unclear to enable an informed reader (that is the members) to understand what they were being advised. The decision had not been made in accordance with the development plan as required by section 38(6) of the Planning and Compulsory Purchase Act 2004.
I start with the last point first. Mr Edwards points to the language of the National Planning Policy Framework on the Green Belt, which in paragraphs 87 to 88 states:
"87. As with previous Green Belt policy, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.
88. When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. 'Very special circumstances' will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations."
Paragraph 90 says:
"Certain other forms of development are also not inappropriate in Green Belt provided they preserve the openness of the Green Belt and do not conflict with the purposes of including land in Green Belt. These are:
• Mineral extraction;
• Engineering operations;
• Local transport infrastructure which can demonstrate a requirement for a Green Belt location;
• The re-use of buildings provided that the buildings are of permanent and substantial construction; and
• Development brought forward under a Community Right to Build Order."
The relevant adopted development plan policy is in one of the local development framework documents, the Core Strategy and Development Control Policy Development Plan Document. It is DC1. So far as material, it provides:
"Planning permission will be refused for development within the area shown as Metropolitan Green Belt on the Proposals Map, except where the proposed development is for either …
C. The carrying out of an engineering or other operations, or the making of a material change to the use of land, where the works or use concerned would have no material effect on the openness of the Metropolitan Green Belt, or on the fulfilment of its purposes."
I should also refer to the site allocation DPD, in which flood storage for the Wid is identified, and the location noted in a very general sense, by a small triangle on the Margaretting inset map. That triangle is within the site of this permission.
Mr Edwards submitted that the report to committee did not make it clear whether the proposed development was appropriate within the Green Belt or not and whether very special circumstances were required or not. If it was unclear in that respect, it would have failed, as would members, in the consideration of the most important development plan policy, and they would have failed to make a decision in accordance with the development plan unless material considerations indicated otherwise.
This submission requires a consideration of the officer's report. This report starts with an executive summary:
"1.2. The Environment Agency is proposing to construct a Flood Alleviation Scheme to reduce the risk of future flooding to residential and commercial properties in Chelmsford.
1.3. The scheme will ensure a significant reduction in the number of properties at risk from flooding in the more severe events. The flood defences will provide protection to 548 residential properties and 235 commercial properties.
1.4. The embankments and associated features will represent a change in the appearance of the landscape which would affect openness. Given its strategic support in the Development Plan and its overall benefits to the city centre, it is considered that any harm due to inappropriateness, and any other harm, is outweighed by very special circumstances in this instance.
…
1.7. The proposed flood defences and ancillary development will cause disruption and disturbance during the construction period, but this is a short term event. The landscape will undergo change; however it will serve to improve flood defences for over 700 residential and commercial properties in Chelmsford, bringing long term benefits for the city."
Those paragraphs were then followed by a recommendation that permission be granted.
The context is set out in section 2 of the report. This is important because it sets the scene for the consideration of very special circumstances:
"2.1. Chelmsford is located at the confluence of three rivers — the Can, Wid & Chelmer. The most frequent floods are contained within the flood plain through parkland and water meadows. Significant flooding has been recorded in Chelmsford in the past. Severe flooding occurred in 1947 and 1958 which led to the implementation of a flood defence scheme in the 1960's.
2.2. As a result of flood incidents in 2000 and 2001, the Environment Agency...
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