Planning application — Watercourse — Culvert — Application to erect structure over main river — Defendant declining to entertain applications for consent — Whether consent deemed to have been granted — Application allowed
The claimant was the owner of a private car park, across which ran a shallow culvert that carried the main river. A planning application was submitted for the erection of a single-storey retail kiosk (building A). The defendant initially confirmed that it had no objection to the proposal, but subsequently maintained that this confirmation had been sent in error. Planning permission was, however, granted.
The claimant wished to expand building A, and it therefore submitted a revised application for building B. The defendant formally objected to the proposed development, but, in view of the earlier permission for building A, the claimant began to construct building B, in anticipation of planning permission being granted. Permission in respect of building B was subsequently refused on the basis of the defendant’s objection. The defendant served notice on the claimant, requiring the removal of building B within 14 days, failing which the defendant might, under section 109(4) of the Water Resources Act 1991, remove, alter or demolish the kiosk and recover from the claimant the expenses incurred in so doing, on the basis that the building had been erected without the defendant’s consent, as required under section 109(1). The claimant then submitted two applications for consent under section 109(1). The defendant refused these on the ground that they were retrospective and could not be accepted under the 1991 Act.
The claimant applied to the High Court for judicial review of that refusal, contending, inter alia, that the defendant was not prevented from granting consent subject to conditions with which the claimant would be obliged to comply, which the defendant could enforce and which were intended to address the defendant’s concerns.
On the assumption that retrospective applications fell outside the scope of section 109, an issue arose as to whether, if the first application was valid, the defendant could be deemed to have given its consent to it under section 110(2)(b) of the 1991 Act.
Held: The application was allowed.
The first application was valid in its own right and should not be treated as invalid merely because the structure, erected without the benefit of planning permission, had not been removed. It was a separate application for a different structure and was not retrospective. Allowing applications such as the first to be made would not inhibit the defendant’s freedom to take enforcement action. There was no warrant for restricting the powers of applicants for permission or preventing applications for consent from being made until existing structures had been removed.
As a matter of good public administration, the summary power under section 109(4) was subject to the defendant’s own enforcement policy, under which the defendant’s officers had to consider, inter alia, whether consent would have been given. If consent were refused, a landowner would be able to refer the dispute to arbitration or to the secretary of state, but that did not oust the defendant’s section 109(4) power to remove the unlawful structure.
Since a valid application had been made under section 109 and no decision had been taken upon it within the prescribed two-month period, consent was deemed to have been given pursuant to section 110(2)(b). If the defendant refused to entertain an application on the basis that it was invalid, it did so at its own peril. If a court declared an application to be valid, it would be regarded as valid at all times and not just from the date of the court’s decision.
Gregory Jones (instructed by Dutton Gregory, of Winchester) appeared for the claimant; Stephen Tromans (instructed by the solicitor to the Environment Agency) appeared for the defendant.
Eileen O’Grady, barrister
