R Christopher Preston v Cumbria County Council
| Jurisdiction | England & Wales |
| Judge | Eyre |
| Judgment Date | 31 May 2019 |
| Neutral Citation | [2019] EWHC 1362 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4749/2018 |
| Date | 31 May 2019 |
and
[2019] EWHC 1362 (Admin)
HIS HONOUR JUDGE Eyre QC
Case No: CO/4749/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Manchester Civil Justice Centre
1 Bridge Street West
Manchester M60 9DJ
John Hunter and Constanze Bell (instructed by Fish Legal) for the Claimant
John Barrett and Piers Riley-Smith (instructed by Nicola Watson, Legal Department of United Utilities) for the Interested Party
Hearing dates: 7 th May 2019
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
HH JUDGE Eyre QC:
Introduction .
The Claimant is a trustee of the Kent (Westmoreland) Angling Association. That is an unincorporated association with exclusive fishing rights on a stretch of the River Kent in Cumbria. The Claimant has applied on his own behalf and on behalf of the other members of that association for judicial review of the Defendant's decision of 17 th October 2018. By that decision granting permission to the Interested Party the Defendant had varied a condition attached to an earlier grant of planning permission which had permitted the installation of a temporary outfall from the Interested Party's Kendal Wastewater Treatment Works (“the Plant”) into the River Kent. The effect of the permission of October 2018 was to extend for a further period the time for which that development was permitted.
The Claimant says that the decision was unlawful in two regards. First, in that there had not been a “screening opinion” for the purposes of the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (“the EIA Regulations”). Second, in that there had not been an “appropriate assessment” for the purposes of the Conservation of Habitats and Species Regulations 2017 (“the Habitats Regulations”).
Although it initially took a different view the Defendant has now accepted that the decision was unlawful on both grounds. At one stage the Defendant indicated that it was proposing to revoke the permission under section 97 of the Town and Country Planning Act 1990 (“the TCPA”). However, it no longer intends to take that course. Instead it would consent to the quashing of the permission granted. Save for the provision of a position statement the Defendant has taken no part in these proceedings.
Permission for this claim was given by Mrs. Justice Andrews on 8 th February 2019.
The Interested Party has resisted the claim. It says that the Defendant's decision was lawful. It says that the development for which permission was given in October 2018 was outside the scope of the EIA Regulations meaning that no screening opinion was required. It also says that in the circumstances here the Habitats Regulations did not require there to be an appropriate assessment.
The History and Factual Background .
The relevant parts of the River Kent are within a Special Area of Conservation which is a European Site for the purposes of the Habitats Regulations. They are also of national note as part of the River Kent and Tributaries Site of Special Scientific Interest. This is primarily because of the presence of white-clawed crayfish supplemented by the presence of freshwater pearl mussels and bullhead.
There has been a wastewater treatment plant at the site of the Plant since 1898. The Plant is operated by the Interested Party and discharges treated sewage and trade effluent into the River Kent. That discharge is governed by an environmental permit granted by the Environment Agency pursuant to the regulatory regime provided for by the Water Act 2014 and the Environmental Permitting (England and Wales) Regulations 2016 and their predecessors. At all times the discharge both actual and contemplated has been of treated material and in accordance with the terms of the Environment Agency's permit which sets out detailed controls on the contents of the material being discharged and on the monitoring of the discharge.
Until December 2015 the discharge had been through a pipe running by means of a syphon across the river bed adjacent to the Plant to the opposite bank and then overland to discharge into the river a little way downstream from the plant. In December 2015 Storm Desmond hit Cumbria and the damage caused by that storm included substantial damage to the pipe running under the river.
A new outfall had to be installed and this was installed so as to discharge into the river at a point almost immediately adjacent to the Plant. This point is approximately 1km upstream from the previous point of discharge. The Claimant says that this involves a discharge into the Angling Association's prime salmon beat and at a point where the river is slower flowing than it is at the point of the previous outfall.
The Interested Party had sought permission for the new outfall by an application of May 2016. This said that a “temporary new outfall” was required for a period of up to twelve months while the existing outfall was reinstated. The temporary outfall had been installed a few days before the application was made having replaced emergency works which had been installed in the immediate aftermath of the storm. The application stated that there was a reasonable likelihood of adverse effects on protected and priority species and designated sites, important habitats, and other biodiversity features “on land adjacent to or near the proposed development”.
The Interested Party had provided an Assessment of Likely Significant Effect (“the ALSE”). The stated purpose of this was to determine whether the proposed activities were considered to have a significant effect for the purpose of the Habitats Regulations. In the portion of the ALSE addressing “changed water chemistry” in relation to the vegetation of the water course it stated that the ALSE related “to the construction of the temporary outfall structure only and does not include the potential impact from the discharge itself”. The document explained that the construction would have “no significant effect” on sundry matters relating to the habitat. In the section addressing the potential impact on the white-clawed crayfish and the bullhead there was a further passage also addressing “changed water chemistry”. The document repeated there the point that it was not addressing the discharge. It said “the location of the temporary outfall is approximately 1km upstream of the original outfall … therefore approximately 1km of river which was previously unaffected is now being affected by the discharge.” It explained that there was currently no choice but to discharge into the river at that point and then said “despite this it is felt that under typical flow conditions and when the discharge is being maintained at ‘normal’ levels dilution is sufficient for there to be no significant effect on the species. The quality of the discharge itself is to be addressed in a separate HRA submission.” Despite that last sentence there was in fact no separate submission addressing the quality or effects of the discharge.
The Defendant consulted Natural England and by a letter of 16 th June 2016 that body advised the Defendant to have regard under the Habitats Regulations to any potential impacts that there might be. It said that it assumed that the Defendant was adopting the ALSE as its assessment under the Habitats Regulations. Natural England said that the ALSE contained “adequate mitigation to protect the River Kent … from the adverse effects of construction activities associated with the proposal.” It was also satisfied that carrying out of the development in accordance with the details of the application would not damage or destroy any features for which the site was notified as a Site of Special Scientific Interest.
The report of the Defendant's planning officer said that the Defendant had adopted the assessment in the ALSE and that this had concluded that there was no significant effect from the development on the interest features of the river. It said that Natural England concurred with this conclusion. The report made no reference to the fact that the ALSE was confined to consideration of the effects of the construction of the outfall. The report also said that the development would have “no unacceptable quantitative or qualitative adverse effects on the water environment.” That comment was, however, made in the context of comparing the proposed outfall with the emergency works which had been installed in the immediate aftermath of Storm Desmond.
Permission was given on 5 th July 2016 subject to a condition that the development should be limited to a period of twelve months from the date of that permission.
On 5 th June 2017 the Defendant gave permission under section 73 of TCPA providing for the period for which the development should be limited to be extended to 31 st October 2018. That permission was not preceded by any screening opinion under the EIA Regulations nor by any appropriate assessment under the Habitats Regulations other than the ALSE.
The decision under challenge was made in response to the Interested Party's application of 18 th July 2018. This described the proposal as being for a “temporary outfall for up to 12 months while existing one is reinstated”. It stated that the development in question had been completed on 29 th April 2016. It said that there had been unforeseen complications in attempting to reinstate the previous outfall and that the Interested Party was assessing the feasibility of making the temporary outfall permanent.
The Defendant's delegated decision report explained that Natural England had been consulted and had no comment to make. It confirmed that...
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