Development – Flood defences – Environmental impact assessment – Interested party seeking planning permission to construct flood defence walls – Claimant landowner objecting because work would involve loss of part of its land – Claimant seeking judicial review of decision of defendant local authority to grant permission – Whether defendant failing to comply with statutory requirements – Whether claimant commencing proceedings promptly – Application granted
The Environment Agency (the interested party), which was responsible for flood defences, decided to implement a broadland alleviation strategy that involved the construction of new flood defence walls on the Norfolk Broads. The claimant owned 80ha of arable farming land on the Norfolk Broads. The proposed construction would take part of that land and the claimant objected to that proposal.
When alleviation works became critical, the interested party constructed the new defence wall, leaving the claimant responsible to maintain the existing defence to its land as it considered appropriate; the interested party ceased to be responsible for it. The defendant planning authority granted planning permission for the alleviation work to be carried out.
The claimant sought permission to apply for judicial review of that decision, contending that the requirements of Town and Country Planning (Environment Impact Assessment) Regulations 1999, had not been complied with. This transposed into domestic law EC Council Directive 85/337/EEC on the assessment of public and private projects on the environment. The alleged failure lay in the defendant’s decision that no environmental impact assessment (EIA) was required and none had been provided. Further, the planning committee had been wrongly advised that the risk of flooding to the claimant’s land was not a planning consideration and that an alternative proposal put forward and for which planning permission was sought need not be considered. The claimant also argued that the reasons given for the grant of permission failed to comply with article 22 of the Town and Country Planning (General Development Procedure) Order 1995.
The defendants did not defend that claim. However, the interested party argued that permission to apply for judicial review should not be granted because it had been prejudiced as a result of the claimant’s undue delay in making its claim. The claimant had lodged the claim a week within the maximum three-month period and the interested party had not become aware of the proceedings until it received a pre-action protocol letter a few weeks previously. Meanwhile, the interested party had commenced work on the new defence wall on which it had expended approximately £130,000.
Held: The application was granted.
A purposive approach had to be adopted to the Directive: not only had the effects of a number of developments be taken into account, if it were apparent that they had to be considered as a whole, but also effects that might not result directly from the development in question but were indirectly caused by it. That was the position in the instant case and the defendants had been wrong to disregard the effect on the claimant’s land since the scheme included the abandonment of the existing defences and thus added a risk of flooding. The original proposal before the claimant’s refusal to allow work on its land had been to set back the existing defences. However, the substituted development would result in the existing defences being abandoned and could have a hydrological effect on the claimant’s land. Thus, one effect of the development would be to expose that land to a risk of greater flooding with a significant effect on the claimant’s ability to use it for arable farming.
An EIA was concerned with the effects of a development on the environment, which might be beneficial as well as adverse. It was important that both adverse and beneficial effects, if significant, should be identified since the planning authority would have to exercise their judgment in deciding whether the development should be permitted. There was nothing to indicate that all significant effects had been taken into account since there were obvious beneficial effects on nearby sites of special scientific interest and land close to the claimant’s land resulting from the development.
Since judicial review was a remedy of last resort, it was reasonable for the claimant to negotiate with the interested party to avoid litigation and should be encouraged, but it was not an alternative remedy. It could not excuse a failure to indicate that litigation would be likely so that the interested party was aware that if it began to implement the permission it would be at risk of wasted expenditure if the planning permission was quashed. In the instant case, the court was satisfied that the claim had not been brought promptly. However, that did not mean that permission to apply for judicial review should be refused where, as here, the grant of planning permission was clearly ultra vires and the Directive had been breached. Community law did not permit a time limit within which any proceedings had to be brought that might depend on the exercise of judicial discretion. The limit had to be certain since otherwise the protection of rights derived from community law would not be effective. However, if a certain time limit was not met, community law did not require that a decision be set aside, even if it was made in breach of the law: Köbler v Austria C-224/01 [2004] QB 848 and Kapferer Schlank & Schick GmbH [2006] ECR 1-2585 referred to.
Per curiam: In Ceredigion County Council, ex parte McKeown [1998] 2 PLR 1, Laws J said that it was nearly impossible to conceive of a case in which leave to move for judicial review would be granted to attack a planning permission when lodged more than six weeks after the planning permission had been granted. Having regard to the importance of promptness in challenging grants of planning permission, serious consideration should be given to amending CPR 54.5 so as to impose a six-week limit for all such challenges.
Gregory Jones QC and Ned Westaway (instructed by Steeles Law Solicitors) appeared for the claimant; the defendant did not appear and was not represented; Lisa Busch (instructed by the legal department of the Environment Agency, of Peterborough) appeared for the interested party.
Eileen O’Grady, barrister
