The Heath & Hampstead Society v The Mayor and Commonalty and Citizens of the City of London (acting by The Hampstead Heath, Highgate Wood and Queen's Park Management Committee (and the Projects Sub Committee)) The Environment Agency (Interested Party)
| Jurisdiction | England & Wales |
| Judge | The Honourable Mrs Justice Lang DBE,Mrs Justice Lang |
| Judgment Date | 28 November 2014 |
| Neutral Citation | [2014] EWHC 3868 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 November 2014 |
| Docket Number | Case No: CO/4175/2014 |
[2014] EWHC 3868 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Lang DBE
Case No: CO/4175/2014
The Queen on the application of
Stephen Tromans QC and James Burton (instructed by Scott Fowler Solicitors LLP) for the Claimant
David Elvin QC and Richard Moules (instructed by Comptroller and City Solicitors Department) for the Defendant
William Upton (instructed by Legal Department (Exeter), Environment Agency) for the Interested Party
Hearing dates: 13 th & 14 th November 2014
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.
The Claimant has applied for judicial review of the Defendant's decision, in June 2014, to approve and proceed with proposals for reservoir safety works to the ponds on Hampstead Heath ("the Heath"), at a cost of £17 million, subject to obtaining planning permission from the London Borough of Camden. The claim concerns the proper interpretation and application of the Reservoirs Act 1975 ("RA 1975")
By consent, the application was expedited and heard as a "rolled up" hearing, so the application for permission and the substantive application were heard together.
Facts
The Claimant is a charity whose objects include the preservation of the Heath in its "wild and natural state" and the promotion and maintenance of the amenities and characteristics of the environs of the Heath. It was founded in 1897 to oppose London County Council's attempts to develop the Heath into a park.
The Heath is classified as Metropolitan Open Land, a Public Open Space and a Site of Metropolitan Importance for Nature Conservation. It contains ancient woodland and a Site of Special Scientific Interest (though it is not touched by the proposals).
The Heath was described by Stanley Burnton J. as the greatest of London's open spaces ( Hampstead Heath Winter Swimming Club & Anor v The Corporation of London & Anor [2005] 1 WLR 2930 at [1]). It is cherished by local residents and it is estimated there are about 7 million visits per year. The "timeless beauty" of its landscape (captured in many paintings) is a particular feature of the Heath, valued by its visitors.
The Heath is owned and managed by the Defendant, pursuant to the Hampstead Heath Act 1871 ("HHA 1871"). The HHA 1871 made provision for ownership of the Heath to be transferred from the Lord of the Manor and vested in the Metropolitan Board of Works. It was subsequently transferred to the London County Council and the Greater London Council. It was transferred to the Defendant, in its private capacity, by the Local Government Reorganisation (Hampstead Heath) Order 1989.
Since 1871, the Heath has been enlarged by the acquisition of further lands. It now comprises some 790 acres of grassland, woodland, meadows, formal grounds, wetlands and heathland. There are numerous lakes and ponds, of varying sizes, which are valued for their visual amenity and some are used for recreational purposes, such as swimming and angling.
Perhaps the best known are the two chains of ponds – the Hampstead chain and the Highgate chain. There are six ponds in the Hampstead chain and eight ponds in the Highgate chain (the top two of which are within the Kenwood Estate and are owned and managed by English Heritage). The ponds were originally built as reservoirs to provide fresh water for London. They were created by damming the natural springs and streams in the valleys, on either side of Parliament Hill, which were the source of the Rivers Fleet, Kilburn, Tyburn and Brent. Those rivers are now lost, having been incorporated into London's underground sewer system. Today, the ponds are still supplied by natural springs. Each pond in the chain is linked by pipes and/or streams allowing the water to flow down to the adjacent lower pond. The lowest pond in each chain discharges into the sewers.
Despite the fact that they are no longer used as reservoirs, the three largest ponds come within the scope of the RA 1975, imposing legal duties upon the Defendant, as 'undertaker' within the meaning of the Act. The Defendant has concluded, on the advice of a series of consultant civil engineers, that substantial works are required to ensure that the dams to the ponds do not breach, and cause extreme flooding to the densely inhabited areas around the Heath. The last statutory inspection under the RA 1975 was in 2007 which recommended further assessments. The Defendant has commissioned reports from consultants Haycock Associates, CARES, AECOM and Atkins. Since 2010, it has received advice from its supervising engineer, Dr Andrew Hughes, appointed pursuant to the RA 1975.
Dr Hughes is a highly qualified and experienced specialist in dam engineering. In his witness statement, he explained the nature of dam failure as follows:
i) An embankment dam requires a spillway to allow water to 'overflow' and pass safely downstream past the dam. Usually, this is via a channel, pipe or reinforced low portion of the bank. The capacity of the spillway must be sufficient to prevent the water level rising and going over the top of the dam.
ii) If the spillway has insufficient capacity, then in storm conditions the water may overtop the embankment dam. As the water flows down the face of the dam it accelerates and it has the power to rip grass cover from the soil or to erode the face of the dam.
iii) Where the face of the dam erodes there is a risk that the water in the reservoir behind the dam will break through and the dam will fail. Water would then be released from the dam with potentially catastrophic consequences.
iv) It is difficult to predict exactly how quickly a dam will fail, but once overtopping starts then a dam could fail within minutes. Failures could occur at any time and at short notice. Once erosion starts it is a self-perpetuating process that is virtually impossible to stop. It is thus important that the mechanisms for dam failure are eliminated.
v) When dams fail in built-up areas, it is likely lives will be lost. Dam breach releases a wall of water onto the community downstream, overwhelming any drainage system. The volume of water and velocity of flow can knock people and buildings over.
vi) The propensity of a dam to overtopping is indicated by a 'return period' that signifies the number of years which one would expect between floods equal or greater than the stated magnitude. Thus, if a dam is overtopped with a return period of a 1 in 20 flood then it would be expected to overtop on average once every 20 years. This is a theoretical exercise. In reality, severe floods may occur at any interval, and their frequency cannot be accurately predicted.
Dr Hughes has advised the Defendant, based upon the studies which have been carried out, that in the event of a severe storm, there is a risk that the ponds could overtop, potentially leading to erosion and dam failure. The principal reason for this is that the spillway capacities of all of the dams in the Highgate and Hampstead pond chains are deficient. The Hampstead No.1 Pond and the Highgate No.1 Pond (the ponds at the bottom of each chain) start to overtop between a 1:100 year rainfall event and a 1:1,000 year rainfall event. Other ponds further up the chains overtop at a much lower return period (e.g. the Stock Pond starts to overtop in a 1:5 year event, while the Ladies Bathing Pond and Bird Sanctuary Pond overtop in a 1:20 year event).
There is evidence that the ponds have overtopped previously and been damaged by erosion, though there is no evidence that the dams have ever breached.
The next statutory inspection under the RA 1975 is not due until 2017, but Dr Hughes may recommend an earlier statutory inspection if the recommended steps are not taken.
Following a lengthy process of investigation, assessment and consultation, the Defendant's Hampstead Heath, Highgate Wood and Queen's Park Committee decided on 9 th June 2014 to approve specific pond defence proposals and to apply for planning permission for them, following the recommendations made in the Joint Report of the Director of Built Environment and the Director of Open Spaces ("the Report").
The design principles which were applied may be summarised as follows:
i) Each chain of ponds was considered as a whole system, so that increases in storage capacity could be focused in the least sensitive locations, in order to minimise increases in dam heights at more sensitive ponds and reducing residual works required elsewhere.
ii) The safety standard applied to each pond was the "Probable Maximum Flood" (PMF). Applying the Institution of Civil Engineers guidance 'Floods and Reservoir Safety' ("the ICE guidance"), this was the applicable standard for the three largest Category A ponds. It was anticipated that all the ponds would come within the scope of the RA 1975 once the amendments introduced by the Flood and Water Management Act 2010 were fully implemented.
iii) Tree loss was to be minimised
iv) The system would be passive, without reliance on any mechanical system or human intervention.
v) The engineering intervention would be balanced so as to...
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