R (on the application of David Padden) v Maidstone Borough Council Guy Harrison Emily Harrison and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Mackie,Judge Mackie |
| Judgment Date | 22 January 2014 |
| Neutral Citation | [2014] EWHC 51 (Admin) |
| Docket Number | Case No: CO/12225/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 January 2014 |
[2014] EWHC 51 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
His Honour Judge Mackie QC
Case No: CO/12225/2012
James Maurici QC (instructed by Dechert LLP) for the Claimant
Stephen Hockman QC and Megan Thomas (instructed by Maidstone Borough Council) for the Defendant
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.
His Honour Judge Mackie QC
Judge Mackie QC:
This is a challenge to the lawfulness of a part retrospective planning permission. The Claimant, Mr David Padden, lives in Hertsfield Barn a 500 year old Grade II listed timber framed building situated 3km north of the village of Marden in Kent on the south side of the River Beult, a site of Special Scientific Interest. The Defendant ("The Council") is the local planning authority. The Interested Parties obtained the planning permission in issue ("the Permission") on land at Riverfield Fish Farm, Staplehurst Road, Marden, known as "Riverfield Fish Farm" or "Monk Lakes".
The Claimant applied for judicial review on 15 November 2012 and permission was granted by King J on 18 February 2013. For the hearing I had four bundles including the following witness statements. There are three witness statements from the Claimant, one from his legal representative Mr True, one from his planning consultant Ms Lord and two from his geologist Dr Fox. There are three witness statements from Mr Hockney, the Council's Principal Planning Officer. There is also a witness statement from Mrs Emily Harrison, an Interested Party and director of Taytime Limited. She refers to the extent of her company's investment in the planning process, to the consequences of any enforcement process and to the fact that while the Claimant may wish the site to be strawberry fields as it once was it has been run as a fishery for almost twenty years. The Interested Parties have not otherwise participated in this case.
The background
On 17 September 2003 planning permission was granted by the Council, on the application of the then owners Mr & Mrs Hughes, for development at what is now known as Monk Lakes for:
"Change of use of land and physical works to create an extension in the fish farm, to form an area for recreational fishing. The application involves the formation of ponds and lakes, the erection of a building and the formation of a car park, the existing access to Staplehurst Road is to be improved…"
The 2003 Permission was subject to various conditions including the submission for approval of various pre-commencement details. These details were not submitted for approval. Instead the then owners of the land commenced, what it is common ground between the Claimant and the Council, were unauthorised works at Monk Lakes to create additional recreational fishing lakes not in a form that was in compliance with the 2003 Permission. The unauthorised works took place between 2003 and 2008 and involved the importation of very large amounts of construction waste material including glass, plastic and asbestos. The Environment Agency has estimated that about 650,000 cubic metres of waste material were deposited on the land between March 2003 and January 2008 with even more since. The material was formed into, amongst other things, massive 8 metre high retaining bunds close to neighbouring residential properties including Hertsfield Barn.
Facts agreed or not much in dispute
In 2008 the site was acquired by three of the Interested Parties, Emily and Guy Harrison and Monk Lakes Limited ("MLL") who have apparently continued, and intensified, the unauthorised works.
There is expert and circumstantial evidence that the unauthorised works and in particular the deposition of vast quantities of waste as part of them, have had damaging effects on Hertsfield Barn, including causing groundwater flooding. The Claimant gives evidence of the serious interference which this flooding causes despite the work and cost of daily pumping. The challenged consent will, if it stands, regularise the deposition of the material.
After much delay and pressure from local residents, including the Claimant, the Council served an enforcement notice on 12 September 2008 ("the Enforcement Notice") following a temporary stop notice in April 2008. The large scale of the unauthorised work can be seen from the photographs produced by the Claimant and from the very serious breaches of planning control specified in the Enforcement Notice. The Interested Parties appealed against the Enforcement Notice and there has been litigation arising from that which, even now, is not finished. A public inquiry into an appeal against the Enforcement Notice was scheduled to commence on 6 November 2012 but, because of the grant of the Permission in these proceedings, it was vacated. So more than ten years after the unauthorised works began they are still going on.
On 26 September 2009 and 4 January 2010 retrospective permissions were granted by the Council for development at Monk Lakes. The further application which led to the Permission in issue in these proceedings was received by the Council on 9 December 2011. It sought part retrospective permission for "the retention of completed lakes Bridges and Puma, the retention and completion of part completed raised reservoirs lakes 1, 2 and 3 …". The "Bridges" and "Puma" lakes are those furthest from Hertsfield Lane. The three additional reservoirs (which according to the application are to be retained and completed) are situated immediately to the east of Hertsfield Lane. The application was accompanied by an Environmental Statement.
The Claimant's planning consultants, Bell Cornwell, responded in detail to the application claiming amongst other things that the Environmental Statement was flawed because:
"it uses the date of 2010 with significant unlawful development in place as its base point rather than the position in 2003, preceding the commencement of the unauthorised development a position which is the actual lawful base point".
The letter made the point that other reports submitted with the application made the same error. The letter pointed out that at a meeting between members of the Hertsfield Residents Association and senior officers of the Defendant Council on 21 March 2011 it was confirmed by those officers that:
"any application and accompanying Environmental Statement should compare the proposed development with the 2003 position"
That assertion is disputed by the Council. The letter also complained, correctly, that the Interested Parties had failed to undertake any scoping for the Environmental Statement. (Scoping is the process of determining the content and extent of the matters which should be covered in an Environmental Statement).
The Environment Agency ("the Agency") made representations on the application on 21 December 2011 saying:
"Environmental Impact Assessment
The application states that Maidstone Borough Council informed MLL in October 2010 that the proposal would need to be accompanied by an Environmental Statement, but we were not contacted with any scoping documentation
Although there is no legal requirement for scoping consultations, we are disappointed that MLL chose not to engage in this process, as it can help to clarify issues concerning key environmental issues and proposed methods for survey, evaluation and assessment."
On 25 May 2012 the Claimant's planning consultants further objected:
"We write to advise that following the site meeting on the 4th May 2012 with Barrie Neaves of the Environmental Agency [" EA"], a meeting you were invited to attend, we now have an explanation concerning the flooding at our client property. Mr Neaves had discussed the matter with a geologist from the EA who advised that the problems were most likely to be as a result of the unauthorised works on the neighbouring land due to the weight and compaction of unauthorised material. This has in effect reduced the capacity of the gravel aquifer layer, which is in the main contained by clay, so the water seeks the weakest path to escape and this appears to be the pond and immediate area at Hertsfield Barn. This is explained in the attached letter from an independent geologist.
We also understand that the EA will confirm their geologist's advice in writing, although we understand the EAs duty as a statutory consultee is limited to providing advice regarding river flooding.
On the facts it can reasonably be concluded that the unauthorised works have, and if the proposed were approved, will continue to have a direct impact on ground water levels at our client property such that unless the pond is continually pumped to remove the additional water that is being displaced from the aquifier layer it will cause damage to his house which is located immediately adjacent to the pond. This problem is not as a result of river flooding, surface water or ditch drainage…
… we note that despite the problems of excessive ground water that has been experienced by our client since the unauthorised works, it is estimated that it will take nearly 7 years to fill the three lakes as proposed …
If the 2003 permission had been lawfully implemented, following the discharge of pre-commencement conditions, the approved plans did not provide for the...
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