R David Palmer v Herefordshire Council James Davenport (t/a Foxley Estate), DJ and IR Powell (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | HHJ David Cooke |
| Judgment Date | 25 September 2015 |
| Neutral Citation | [2015] EWHC 2688 (Admin) |
| Docket Number | Case No: CO/507/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 25 September 2015 |
[2015] EWHC 2688 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT: PLANNING COURT
Birmingham Civil Justice Centre
Bull Street, Birmingham B4 6DS
HHJ David Cooke
Case No: CO/507/2015
James Burton (instructed by Kidwells Law Solicitors Ltd) for the Claimant
Matthew Reed (instructed by Herefordshire Council Legal Services) for the Defendant
The Interested Parties did not appear and were not represented
Hearing dates: 3–4 August 2015
This matter was listed for a rolled up hearing of the claimant's application for judicial review of the defendant's grant, on 15 December 2014, of planning permission for the development by the First Interested Party of four poultry broiler units on agricultural land known as Flag Station, Mansel Lacy, Herefordshire. The claimant and his wife own a property known as Shetton Barns approximately 300m away from the proposed development, at which they run a holiday lettings business. A previous similar approval was quashed, by consent, on the grounds of procedural irregularity.
The proposed development consists of four large sheds, each approximately 95m long, 25m wide and 6m high. Each will have three feed silos adjacent, somewhat taller than the shed, and accommodate 45,000 broiler chickens at any one time. The sheds will be built on a raised hardstanding area, from which rainwater runoff would drain into the nearby Yazor brook after passing through a proposed attenuation pond designed to hold back what might otherwise be unacceptably fast runoff from the impermeable surface of the buildings and hardstanding.
It is common ground that the development is such that an Environmental Impact Assessment (or "EIA") is mandatory pursuant to Sch 1 Town and Country Planning (Environmental Impact Assessment) Regulations 2011, for which purpose the developer must submit an Environmental Statement ("ES"). There is then a process of publication and consultation, and the planning authority must consider any representations made. The ES submitted (Bundle vol 2/Tab 25/p408) was based, inter alia, on a drainage report prepared by Land Drainage Consultancy Ltd (1/10/137). The ES stated that foul water (from cleaning the sheds) would be drained to a 50,000L (50m 3) underground tank for treatment. The drainage report addressed in particular the issue of flooding risk caused by surface water runoff. It states (p144) that the total impermeable area of the concrete platform (on which the sheds would be built, and including an apron for vehicular access) and an access track to the site would be 13,736 m 2, and recommended that rainwater runoff be directed into an attenuation pond, from which it would flow out at a controlled rate into the Yazor brook. The recommended size of the pond was calculated assuming rainfall at the maximum level expected once in 100 years, increased by 20% as an allowance for climate change. This gave a containment volume requirement of 1534 m 3 (p160). An illustrative plan showing a suitable pond was attached (p165) and the report noted that based on its recommendation of a natural shape, shallow profile and maximum depth of 0.75m, a volume of 1600m 3 would be achievable (p160).
Ground 1: adequacy of flood mitigation
The claimant puts forward seven grounds. Ground 1 is in these terms:
"Failing to give consideration to whether any of the New Elements and/or those parts of the existing Proposed Development, including the attenuation pond and the outfall/outflow from it, for which no/ insufficient details had been provided (hence the Council's imposition of conditions to the Permission requiring details) were likely to give rise to significant environmental effects, whether alone or in combination, not least the possibility that they might require an increase in impermeable area and/ or the expansion/relocation of the attenuation pond so failing to give consideration to whether the ES was deficient in this respect, failing lawfully to complete the EIA process and failing to have regard to material considerations."
This is a somewhat diffuse formulation. In support of it the claimant submits that the ES was defective in that the plans on which the drainage report was based failed to recognise the full extent of the impermeable area that would or might be required, and so failed to assess whether the runoff attenuation proposed was sufficient. In particular it is said that:
i) The plan at Appendix 1 shows 3 silos adjacent to three of the sheds, on the hardstanding area, but none beside the fourth shed. It is assumed that an additional three similar silos will be required, but there is no space alongside the sheds for them to be built on the hardstanding shown, so an extension to that area will be required;
ii) Condition 4 of the planning permission (1/4/62) refers to construction of "the access turning area and parking facilities shown on the approved plan", but although the plan at Appendix 1 shows an access road it does not identify any vehicle turning or parking facilities. It is to be inferred, the claimant submits, that there will be such facilities and that they will entail additional hardstanding;
iii) Although there is a recommendation that each of the sheds should have an emergency exit door at the rear, the plan does not show any access to such doors, which might require additional vehicle access to the rear of the sheds. Such access might also add to the impermeable surface area.
Further, at a late stage the proposal was amended in two respects (referred to by the claimant as "the New Elements"):
i) The waste water tank would be above ground rather than below, and
ii) Heating would be provided by a boiler fuelled by LPG, rather than biomass, requiring LPG storage tanks to be situated somewhere on site
each of which, it is said, would or might require additional hardstanding which had not been factored in to the calculations for sizing the attenuation pond.
All of these points had been made to the council by various objectors to the proposals. Mr. Burton submitted in his skeleton that there was "every likelihood" that additional hardstanding would be required for these matters, "meaning the attenuation pond was inadequate". The matter was "beyond doubt" he said in the light of the evidence of Ms Hamilton (the claimant's planning consultant, though not a drainage expert) who said in her witness statement (1/10/p 126) that they would require "a significantly larger attenuation pond…the application drawings show that there is no room for expansion in its current location…".
In considering this aspect of the Environmental statement the council commissioned (but did not make public) its own drainage report from its Land Drainage Manager (2/23, referred to as the "Council Drainage Report") which, it is accepted, reviewed and endorsed the assessment and mitigation proposals set out in the applicants' report. Its conclusion was (p375) "there are no objections in principle on flooding or drainage grounds, subject to the provision of drawings showing the outlet details, and drawings showing cross sections through the attenuation pond identifying depth, levels and dimensions."
Various responses received during the consultation period were summarised and addressed in a supplemental officer's report prepared by the relevant case officer and dated 7 July 2014 (2/17). That report listed all the letters of objection received, and in relation to drainage issues said this:
"Issues raised can be summarised as follows:…
• Drainage/flooding issues and concerns about climate change, and in particular concerns in relationship to Yazor Brook …
A letter has been received from the applicant's agent in response to a letter of objection … it can be summarised as follows:
• Drainage from the proposed development has been designed in accordance with the SuDS requirements. The development includes capacity on site for volume storage of any one in 100 rainfall event with 20% for climate change added. The surface water from the development will only be released into the brook at a green field run off rate. The way in which the drainage has been designed complies with the legislative requirements and will maintain the status quo with no additional loadings on the brook. The design has been accepted by the Council's drainage team…
Drainage and Flooding Issues.
Many of the letters of objection received raise issues in relation to flooding issues, with regards to the nearby Yazor Brook and capacity concerns, surface water run-off and issues in relation to drainage and development on site.
The Environment Agency raise no objections on this matter and the Land Drainage Manager also raises no objection, recommending conditions with regards to surface water outfall and attenuation structure.
Whilst concerns as raised by the objectors on this matter are noted, the development has to be considered on the merits of the application and potential flooding/drainage issues in relation to the development. The application proposes an attenuation pond in order to manage drainage on site and as such (sic) none of the statutory or internal consultees raise objections on this matter. Therefore it is considered that this matter is addressed satisfactorily and it is recommended that the conditions with regard to surface water outfall and on-site attenuation as recommended by the Land Drainage Manager are imposed.
Therefore on flooding and drainage matters the application is considered acceptable …"
These points were repeated in very similar language in a report prepared for the September 2014 meeting of the Planning Committee (2/18) with a recommendation for approval, but the...
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Palmer v Herefordshire Council and Another
...that grant on a number of grounds. HH Judge David Cooke rejected all grounds of challenge in his judgment of 22 September 2015 ( [2015] EWHC 2688 (Admin)). He granted permission to appeal to this court on one ground only, namely that the Council had failed to comply with its statutory duty......