Wildlife-supporting fenland dependent on high water-table for maintenance – Retrospective planning permission granted for fishing lakes – Some lakes supplied by groundwater – Conditions and scheme approved thereunder restricting piped outflow from lakes to 20m³ per day to comply with requirements of Water Resources Act 1991 – Whether environmental impact assessment development within Schedule 2 to Environmental Impact Assessment Regulations 1999 – Meaning of “water abstraction” in section 221(1) of 1991 Act – Whether conditions and approved scheme capable of achieving stated object – Claim allowed
In 2004, the claimant purchased 4ha of fenland in Norfolk that included which there were several fishing lakes. These were partly fed with water that was extracted through underground strata from an artesian well. The fen had been a country wildlife site. It comprised scarce semi-natural wetland supporting a significant variety of wildlife and depended on a high water-table for its maintenance.
Between 1999 and 2006, the interested party constructed four fishing lakes, without planning permission, on that part of the fen land in his ownership. Of these, lakes 1 and 4 were supplied by groundwater. In 2007, the interested party applied for retrospective planning permission for the lakes. The claimant, who was concerned about damage that the new lakes were causing to the water level in his fishery, objected to the application. Further objections were raised by statutory consultees, including the Environment Agency, which, as the licensing body under the Water Resources Act 1991, was concerned that a licence was required for the abstraction of water from underground strata of more than 20m³ per day. The defendant council granted two planning permissions, for lakes 1, 2 and 3 and lake 4 respectively. Each was subject to a condition requiring the approval of a scheme for restricting water outfall to less than 20m³ per day; the approved scheme involved the use of outflow pipes with a discharge rate set to the required level.
The claimant brought proceedings to quash the planning permissions. He contended that: (i) the development fell within Schedule 2 to the Environmental Impact Assessment Regulations 1999 such that the defendants should have considered an environmental impact assessment (EIA); (ii) the conditions attached to the planning permissions were incapable of achieving their stated objective because they did not restrict outflow to 20m³ per day for all the lakes combined; and (iii) the approved scheme limited only the piped discharge from the interested party’s lakes, leaving any overflow unregulated. The latter point raised an issue as to the meaning of “water abstraction” in the 1991 Act.
Held: The claim was allowed.
(1) The interested party’s development was an infrastructure project involving groundwater abstraction within para 10(h) of Schedule 2 to the 1999 Regulations. In order to maintain the levels in the lakes, it was necessary to abstract groundwater. It exceeded the 1ha threshold that applied to such projects. Although lake 4 was less than 1ha, the planning application relating to it had to be regarded as an integral part of a more substantial development such that the development as a whole fell to be considered. The word “infrastructure” referred to a development that changed the characteristics of land by providing something that enabled a particular use to be carried out on that land. Accordingly, the 1999 Regulations had been breached in that the defendants had not produced a screening opinion on the need for an EIA. Moreover, even if the defendants had considered that question, their reasons for finding that an EIA was unnecessary were unsatisfactory, since the development had caused significant and negative environmental effects and it was difficult to deny that it would continue to do so.
(2) A natural reading of the conditions could be said to indicate that water abstraction of 20m³ per day was permitted in respect of each of the two lakes that were supplied by groundwater. Accordingly, the conditions were defective in that neither reflected the wishes of the defendants’ planning committee nor met the concerns of the statutory consultees. Moreover, the scheme approved thereunder was incapable of ensuring compliance with the condition. “Water abstraction” was defined in section 221(1) of the 1991 Act as the doing of anything whereby water contained in a source or supply would be removed from that source or supply. It was a wide definition that prima facie applied to the abstraction of water from the underground strata into the lakes belonging to the interested party. The digging of the lake, with its edges at a particular height, involved the “doing of work”. That work, by excavating into the underground strata, caused the outfall by whatever means of water coming from those strata. Accordingly, “abstraction” was not confined to the provision of a pipe to achieve the outfall. The defects in the way in which the planning permissions had been considered and granted required that they be quashed.
David Wolfe (instructed by Richard Buxton Environment & Public Law, of Cambridge) appeared for the claimant; Melissa Murphy (instructed by Sharpe Pritchard) appeared for the defendants.
Sally Dobson, barrister
