Neutral Citation Number:  EWHC 1070 (Admin)
Case No: CO/7204/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 13 May 2010
MR JUSTICE COLLINS
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Bryn Chetwynd Claimant
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South Norfolk District Council
Environment Agency Interested Parties
Mr David Wolfe (instructed by Richard Buxton) for the Claimant
Miss Melissa Murphy (instructed by Sharpe Pritchard) for the Defendant
Hearing dates: 29 March 2010
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Judgment Approved by the court
for handing down
(subject to editorial corrections)
Mr Justice Collins: :
1. By this claim the claimant seeks to quash the planning permissions granted by the defendant to Mr Tunmore on 18 and 19 June 2008 respectively. Each granted retrospective permission for development in constructing four lakes for the purpose of fishing subject to a number of conditions. The first, 2007/1961, related to Lake 4 and the second, 2007/2264, related to lakes 1,2 and 3 and included retention of a summer house and electricity hut and formation of a car parking area. The lakes are variously referred to in the permissions as lakes or ponds, but I shall save when quoting from the documents, use the term lake in this judgment. The claimant asserts that the conditions contained in the permissions are inadequate and have failed to protect the surrounding area and have damaged his property.
2. Carleton Rode Fen in Norfolk is an area of 12.6 hectares which has been designated a County Wildlife Site (CWS). This does not give it any statutory protection but, as will be seen, it produces planning constraints which are set out in the South Norfolk Local Plan of 2003. The reason for the designation is that it is an area of fenland which supports a significant variety of wildlife. It consists of scarce semi-natural wetland vegetation which depends on the maintenance of a high water table. It lies close to the source of the River Tas. The Norfolk Wildlife Trust (NWT), which manages the CWS system, in a publication of 2009 notes that threats to CWS can include over abstraction of water and excavation of permanent water bodies and/or development of stillwater coarse fisheries. In December 2004 the claimant bought some 4 hectares of the fen known as Fen Lakes Fishery. As its name indicates, it contained lakes which were available for fishing. Those lakes had existed for some time and the water in them was to an extent fed from an artesian well which had, it seems, been constructed at the beginning of the last century. The quantity of water extracted from the underground strata through this well is less than 20 cubic metres per day (20m³) and so, as will become apparent when I refer to the relevant legislation, no licence to abstract the water is required. It is for obvious reasons important for the successful operation of the claimant's fishing that the water in his lakes is maintained at a satisfactory level.
3. Mr Tunmore owns the balance of the Fen. He has constructed four lakes in order to establish a fishery. He did not obtain planning permission for any of the construction works nor for the change of use nor for the construction of some buildings and a car parking area to serve his fishery. The designation as a County Wildlife Site had taken place in the 1980s. At that time, the claimant's lakes existed but Mr Tunmore's did not. It is not entirely clear precisely when Mr Tunmore constructed his lakes, since he has either refused to give the necessary information or has not told the truth either to his own advisors or to the council. However, it appears from aerial photographs that lake 2 was established by 1999/2000 and the other three in or after 2004. Lake 4, which is the largest of the four, seems to have been established in 2006. It is likely that lake 1 was established in 2004.
4. Largely as a result of the reduction in the water levels in his lakes and the damage caused thereby to his fishery, the claimant complained to the defendant in late 2005. A visit by the enforcement officer led to a letter to Mr Tunmore dated 30 November 2006 telling him that planning permission should have been sought. If he failed to submit an application within 21 days, he must fill in the unauthorised lakes and cease fishing activities and the council would consider whether enforcement action should be taken. On 14 December 2006 Mr Tunmore replied through a consultant stating that he had ‘owned the land in question since 1994 and during this time no new lake has been formed'. This was untrue as I have already indicated. The letter went on to allege that all that Mr Tunmore had done was to carry out clearing and dredging to the lakes and that had been approved by the Environment Agency (EA), the NWT and DEFRA. This too was untrue.
5. Since the Fen was designated as a County Wildlife Site, the whole was subject to two highly material policies in the South Norfolk Local Plan. These are ENV 13 and 14 which provide as follows:-
"Policy ENV 13: Sites of regional and local nature conservation interest and geological/geomorphological value
Development which is likely to adversely affect any local nature reserve, site of importance for nature conservation (County Wildlife Site) or a regionally important geological/geomorphological site will not be permitted unless there are material planning considerations of sufficient importance to outweigh the need to safeguard the nature conservation interest in the site, or its geological/geomorphological value.
In cases where development is compatible with safeguarding the site's nature conservation interest or its geological/geomorphological value, planning conditions may be imposed and/or planning obligations sought in connection with any permission granted to ensure that the site's interest and value are protected or enhanced.
Policy ENV 14: Habitat protection
Where sites include features of habitats which are identified in a national or local biodiversity action plan or which, either individually or cumulatively, are of demonstrable importance to wildfire or nature conservation, development will not be permitted unless:
i) The development would not harm those features or habitats; or
ii) The features and habitats can, and would be, fully reinstated; or
iii) The integrity of the features and habitats would be maintained through the establishment of regime of protective management."
6. Mr Tunmore did not apply for planning permission within the stipulated period of 21 days and so on 22 May 2007 the enforcement officer recommended to the planning committee that enforcement action should be taken in relation to what was lake 4 (it was not then clear when the other lakes had been created). He commented (paragraph 3.4):-
"From the information currently available I consider that the development is likely to have impacted on the ecological interests and hydrology of the site and the locality, and because of the sensitivity of the site it is unlikely that planning permission would have been granted. I consider that in these circumstances it is appropriate to take enforcement action. In the absence of a flood risk assessment, an ecological appraisal or hydrology information regarding possible mitigation, it will be necessary to undertake further consultations with the relevant specialist bodies before deciding what precise action is required."
His recommendation was adopted by the committee which resolved that ‘enforcement action be taken to restore the site ... to its lawful condition subject to further clarification of the dates of works and advice from specialist bodies regarding the most appropriate course of action.'
7. The development carried out by Mr Tunmore in establishing the four lakes was unquestionably contrary to ENV 13 and 14. It was bound to and did have a damaging effect on the Fen as a whole and its status as a County Wildlife Site. Thus it is difficult to believe that planning permission would have been granted. However, the defendant was faced with the situation as it was and it had to decide with the assistance of expert advice whether restoration was possible or whether a retrospective planning permission with enforceable conditions to alleviate the damage caused to the greatest possible extent was the appropriate course. In June 2007 Mr Tunmore made an application for a certificate of lawful development. This was an unmeritorious application which was shortly thereafter withdrawn and on 7 September 2007 he made an application for retrospective planning permission for Lake 4 which was stated to have a site area of 1992 square metres (0.1992 hectare) and on 22 October 2007 he made a similar application for Lakes 1, 2 and 3 having a site area of 2.56 hectares.
8. Apart from the claimant, objections were raised by NWT and Natural England, both of whom urged the defendant to refuse permission and require the site to be restored to its condition before the development took place. The EA was concerned that there was insufficient information about the effect of the development on the fen and on the claimant's lakes but it was in its view "highly unlikely that it would be possible to return the site to a fen area, thereby reversing the impacts which may or may not have occurred". That view prevailed following various meetings and discussions and the claimant does not now suggest that the fen can be completely restored to its previous condition. Thus he does not challenge the decision to grant permission with conditions (or possibly a s.106 agreement). His case is that the conditions imposed have been poorly drafted so that they cannot achieve what they should have achieved and in any event do not work. Further, he submits that there ought to have been consideration of an environmental impact assessment since the development covered by the permissions falls within Schedule 2 to the Environment Impact Assessment Regulations 1999 (SI 1999 No.293)(the EIA Regulations). If this had been done, there would have been a more detailed investigation, which was needed, so that proper enforceable conditions with, if necessary, a s.106 agreement could have been imposed. As it is, the damage to the claimant's fishery and the fen as a whole has not been alleviated.
9. The EA was concerned as it was responsible under the Water Resources Act 1991 for licensing any abstraction of water from, so far as material for the purposes of this claim, underground strata. Unless any such abstraction was limited to 20m³ per day, a licence was required. In 2006, the claimant contacted the EA about the loss of water levels in his lakes and a representative attended his property. On 18 December 2006, a representative of the EA wrote to him recognising the probable effect of Mr Tunmore's development, and stating:-
"It is clear that there has been a change in the water balance in this area over the last four years, with land drainage activity being a major factor but with the excavation of lakes also modifying the natural hydrological system. We have reviewed the regulatory situation and have come to the view that the most appropriate method of managing the water resources of this area is by means of the abstraction licensing system. Where the construction of lakes results in an overflow, this is regarded as a groundwater abstraction and may require a transfer licence."
That last sentence is important because subsequently the EA has changed or, as it would say, clarified its view. Essentially, it is said that the 1991 Act's provisions show that natural overflow where the construction of a body of water has tapped into an underground supply is not an abstraction so that no licence is required. It is only if an artificial means is provided such as a pipe that there is abstraction.
10. Since the purpose of the conditions was to ensure that there was no more than 20m³ per day abstraction of water overall, the true construction of the relevant provisions of the 1991 Act are of considerable importance. The claimant accepts that, provided the abstraction can be limited to 20m³, he should not suffer. But his understandable concern is that if the limitation only applies to any piped discharge from Mr Tunmore's lakes, and does not apply to any overflow, his lakes will not be protected.
11. Before dealing with the true construction of the 1991 Act, I should set out so far as necessary the relevant facts. There is in the bundles considerable documentation and detail. I do not intend to lengthen this judgment by going into the matter in great detail but I shall endeavour to summarise the history and to refer only to important documents.
12. A meeting was held on 31 October 2007 attended by representatives of the defendant and the three statutory consultees, EA, NWT and Natural England. Additional information was needed including:-
(1) A surface and groundwater management study
(2) A full survey of existing ground levels including the wetland area relative to Ordnance Survey datum.
(3) Stratigraphic soil survey and around each of the ponds and within the wetland area for comparison - pond 4 needs to be to a depth of 1.5m.
(4) Cross sections showing the construction of the various ponds i.e. have they been lined.
(5) Where is the artesian well? How deep is it? How is it constructed?
Natural England in a letter of 6 November 2007 specified what it needed by way of further information. This included the matters discussed at the meeting but extended to the need for auger hole trials around the site to determine the current height of the water table and modifications to ground levels undertaken during the creation of the lakes. In a letter to the defendant of 23 November 2007, EA indicated their belief that Lake 1 was the only one which potentially had some influence in the claimant's lakes since it had an overflow which was now discharging into a ditch whereas before its overflow topped up the claimant's lakes. That was likely to have been based on the erroneous information that Lake 1 had existed for some time. But the letter continued:-
"In terms of the Agency's water resource management responsibilities, abstraction of water in excess of 20 cubic metres per day requires an abstraction licence. The construction of a lake or well with an overflow technically constitutes an abstraction and a licence would be required if the discharge exceeds 20 cubic metres per day"."
13. On 7 December 2007, Mr Tunmore lodged with the defendant what was described as a "Surface and Groundwater management study for Carleton Fen, detailing water table levels, modifications to ground levels, construction of lakes and soil survey". It was prepared by a body called Eco-Check Planning Consultancy. 35 auger trial holes were bored to a depth of about 1 metre. It was noted that in the case of Lake 1 the water table was below the water level in the lake. In the report, this is said:-
"... lakes 1 and 4 have overflows which drain into the drainage ditch to the east of the site ... This in itself is abstraction of water from the lakes and as such an abstraction licence may be required. An abstraction licence is not required subject to the amount not exceeding 20m³. An initial assessment would suggest that the overflow from the lakes would only exceed this during a flood event, however if deemed necessary the overflow could be altered to control the overflow from lakes 1 and 4"."
14. In fact, it is only lakes 1 and 4 that are supplied by groundwater, Lakes 2 and 3 being supplied by surfacewater. And it is essentially Lake 1 which is being fed by a significant amount of groundwater, amounting to over 100m³ per day, as became apparent when a report was obtained in April 2009 from a firm, Bingham Hall Associates, acting on behalf of Mr Tunmore when attempts were being made to comply with the conditions contained in the planning permissions.
15. In due course, the statutory consultees were persuaded to withdraw their objections on the basis that the outflows of water from Mr Tunmore's lakes could be restricted by conditions to 20m³. The EA observed that restriction of outflow of water from the site to below 20m³ would reduce the risks of flooding from the site and negate the need for a licence for the purposes of abstraction. That observation would appear only to make sense if no more than 20m³ of water altogether came from the lakes, whether by overflowing their rims or through pipes.
16. The South West Area Planning Committee of the Council met on 22 April 2008 to consider the two applications. The officer's report recommended that permission should be granted. It set out the history and the attitude of the statutory consultees and stated that the infilling of the lakes was not likely to restore the hydrology of the area or successfully reinstate the fen habitat. In paragraphs 4.9 and 4.10, this is said:-
"4.9 Part of the proposed mitigation is also to restrict the outfall from the ponds to less than 20m³. Members will note from the consultee replies that the rate of abstraction resulting from these ponds has caused concerns relating to the hydrology of the area and also the need for an abstraction licence. From the detailed discussions with the consultees, the Environment Agency have confirmed that they consider that it is possible to design and implement a restricted outfall which would reduce abstraction to less than 20m³. It is considered that this measure together with the alteration to ground levels within the site would raise the water levels and restore a fen environment.
4.10 While it is regrettable that these works have been undertaken, I consider that having regard to the policy context for this site and the previous recommendation to Members requiring an appropriate course of action to restore the fen, that the retention of the ponds subject to the mitigation and future management of the site as a whole is the best course of action to safeguard the fen habitat as covered by the County Wildlife site."
The reasons for approval were:-
"It is considered that having regard to the policy context for this site, the previous recommendation to Members requiring an appropriate course of action to restore the fen, and following expert advice from Natural England, the EA and NWT, that the retention of the ponds subject to the mitigation and future management of the site as a whole is the best course of action to safeguard the fen habitat as covered by the County Wildlife site. In these circumstances, the use of the ponds for angling purposes is acceptable in terms of policy LE1 11 of the South Norfolk Local Plan."
17. The committee accepted this recommendation. The Anglers Conservation Association (ACA) wrote to the council asking why an EIA was not required and whether the proper screening procedure had been followed. The council replied on 16 May 2008. It said that it recognised that the categories of projects within the Schedules to the Regulations were illustrative and not exhaustive and "to this end the proposal was considered against the thresholds in column 2 and against the thresholds set out in Circular 2/99." It went on:-
"In the context of these thresholds, the extent of works which have been undertaken do exceed the threshold set out in Column 2 but are below those in Circular 2/99. While I am aware that the site is within a County Wildlife site, it is not located within a sensitive area as defined in the Regulations. In those circumstances, the LPA considered whether significant environmental effects were likely as a result of the development having regard to Schedule 3 of the Regulations (screening opinion) and concluded that an Environmental Statement was not required.
You will be aware from Circular 2/99 that in considering the need for an environmental statement for this type of development, particular regard should be had to the impact of the development on the hydrology and ecology of the area. Those details were submitted with the application and following exhaustive discussions with Natural England, the EA and NWT, further studies and mitigation proposals have been submitted and considered with the application.
The reasoning for not requiring an Environmental Statement was not formally recorded, however, you will note from the above that the environmental implications of the proposal were considered in line with the Regulations."
18. I am bound to say that it is not easy to follow the assertion that the extent of the works exceeds the threshold in Column 2 of Schedule 2 to the Regulations but is below those in Circular 2/99. The Circular gives guidance on the way in which the Regulations, which implement the EIA Directive, should be applied but does not anywhere seek to qualify the requirements of the Regulations. The relevant provisions of the EIA Regulations are as follows:-
‘EIA development' means development which is either
(a) Schedule 1 development; or
(b) Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location".
‘Sensitive area' is defined. It does not include a County Wildlife Site. Regulation 20 requires that a copy of any relevant screening opinion is placed in Part 1 of the register of planning applications. If the LPA is of the view that an application is for EIA development, it must produce a screening opinion in writing stating why it is of that view.
19. All developments which fall within Schedule 1 (applying Annex 1 to the Council Directive 85/357/EEC as amended) require an environmental statement since they will have a serious effect on the environment. Annex II lists developments in respect of which Member States must determine through a case by case examination or by setting thresholds or criteria whether an EIA is required. The U.K. has chosen to set thresholds or criteria in Schedule 2 to the Regulations, many of which relate to the size of the development in question. Annex II and Schedule 2 contain a number of headings for various developments: these headings do not appear in Schedule 1 or Annex I and should not in my view be used to narrow the scope of the application of the Schedule if the development is within the natural meaning of the description used.
20. Two possible candidates in Schedule 2 have been suggested. The first in paragraph 1(b) which, under the heading ‘Agriculture and Aquaculture' specifies:-
"Water management projects for agriculture, including irrigation and land drainage projects."
‘Agriculture' is not defined. Provision of lakes for recreational angling is not naturally to be regarded as a water management project for agriculture, although if for intensive fish farming it is specifically referred to in 1(d). The definition of agriculture in the Agriculture Act does not extend to fishing. Accordingly, I do not think 1(b) applies. The other candidate is in paragraph 10(h) under the general heading ‘Infrastructure Projects'. This reads:-
"Groundwater abstraction and artificial groundwater schemes not included in Schedule 1."
Such a scheme will only qualify if it meets the threshold in Column 2 which requires that the area of the works exceeds 1 hectare. Paragraph 11 of Schedule 1 covers groundwater abstraction or artificial groundwater schemes where the annual volume of water abstracted or recharged is equivalent to or exceeds 10 million cubic metres.
21. It is submitted on behalf of the defendant that the development is not an infrastructure project nor is it a groundwater abstraction scheme. But in order to maintain the levels in Mr Tunmore's lakes, in particular lakes 1 and 4, the development does abstract groundwater. Thus it can in my view properly be regarded as a groundwater abstraction scheme. It is important to bear in mind in considering whether development is within the Schedule that a liberal approach should be adopted to ensure where possible that developments which would be likely to have a negative impact on the surrounding environment are properly investigated. So far as the threshold of 1 hectare is concerned, lake 4 is just under but 1,2 and 3 are above. However, as the Circular makes clear, a particular planning application should not be considered in isolation if in reality it is properly to be regarded as an integral part of an inevitably more substantial development. In such a case, the whole development must be considered (see paragraph 46). This accords with decisions of the European Court of Justice which has made clear that slicing of applications to try to avoid an Environmental Assessment is contrary to law. And it seems to me that ‘infrastructure' can cover a development which changes the characteristic of a piece of land by providing something enabling a particular use to be carried out in that land. Further, in the letter answering the ACA's questions the defendant seems to have accepted that the development did fall within Schedule 2 albeit the threshold may not have been crossed. That acceptance was in my view correct.
22. There has therefore been a breach of the Regulations in that no screening opinion has been produced nor has a copy been placed in the Register. This is important since it enables objectors to understand why no EIA has been required or to challenge an absence if they believe one ought to have been required. It is not sufficient to say that the defendant did consider the question particularly as the reasons for deciding that no EIA was required are not entirely clear or satisfactory. It is difficult to deny that significant environmental effects were likely as a result of the development since such effects have occurred and led the council initially to consider that enforcement action should be taken to try to alleviate those effects.
23. Following correspondence with the statutory consultees about the contents of the conditions to be attached to them, planning permissions were granted on 18 and 19 June 2008 respectively. Each contained an identical condition to restrict outfall to less than 20m³. That for lake 4 was condition 4 and for lakes 1, 2 and 3 was condition 7. Each read:-
"Within 56 days of the date of this decision, in accordance with the "Surface and groundwater management study for Carleton Fen" (page 4) by Eco-Check Planning Consultancy, a detailed design for a scheme to restrict outfall from the pond to less than 20m³ per day, together with a timetable for implementation shall be submitted to the Local Planning Authority for approval in writing. Thereafter following approval in writing, the approved scheme shall be implemented in accordance with the approved timetable and shall be retained as such thereafter unless otherwise agreed in writing by the Local Planning Authority.
Reason for the Condition
In order to enhance the hydrology of the site and associated fen habitat in accordance with Policies ENV13, ENV 14, ENV 15, IMP8 and IMP 9 of the South Norfolk Local Plan 2003."
24. Since there were separate permissions, the one for three the other for the fourth lake, the limitation in each to 20m³ means, so Mr Wolfe submits, that the required overall limit of 20m³ for all the ponds is not put into effect. Permission runs with the land and it is important that any future owner knows what he can or cannot do. Miss Murphy submits that reference to the Eco-Check report resolves any ambiguity since that does refer to an overall limit of 20m³. I am afraid I do not accept that. The passage referred to, which I have cited in paragraph 13 above, does not make it clear (in fact, as I have indicated, the two relevant lakes are 1 and 4). A natural reading of the passage could be said to indicate that 1 and 4 could each be permitted 20m³ because each was a separate abstraction. That being so, the conditions as imposed were defective and did not reflect what the officer had recommended in his report following the requirements of the statutory consultees or what the committee had agreed to do.
25. Towards the end of the hearing, a letter was produced from Mr Tunmore's solicitors offering to enter into a section 106 agreement containing the following obligation:-
"Notwithstanding condition 7 of the 2007/1961 permission and condition 4 of the 2007/2264 permission not to cause, permit or suffer, water abstraction in excess of 20 cubic metres per day from the site as a whole (the site being the area compromised (sic) within the two aforementioned planning permissions."
The letter went on to define water abstraction to refer to piped outflow as opposed to the process of overflow from the ponds. That limitation is not regarded by the claimant as satisfactory since it is his contention that 20m³ must cover all outfall and that is indeed what the conditions appear to require. That, submits Mr Wolfe, is what the 1991 Act also requires if a licence is not to be needed.
26. On 29 July 2008 this claim was issued by the claimant then acting in person. The relief sought included a mandatory order requiring enforcement action to be taken and damages and not surprisingly, Sullivan J refused permission. He stated inter alia that the development was not EIA development. With that I disagree, but I have had the benefit of detailed argument on the point. The claimant then sought legal advice and his claim has been amended. Cranston J on the oral renewal directed a rolled-up hearing. Since I had no doubt that the claim was arguable, I decided to grant permission and to dispense with all subsequent procedural steps save for the giving of an undertaking by the claimant's solicitors to pay the fee required when permission is granted. That undertaking was given.
27. Mr Tunmore failed to submit the schemes required by Conditions 4 and 7 within the 56 day period allowed and since then various schemes have been produced but found not to work. By June 2009 it was thought that a workable scheme had been introduced since the outflow from lake 1 via the outflow pipe was less than 20m³. However, it was discovered that there was a hidden pipe which was emitting some 61m³ and so the scheme needed to be amended. It is not necessary to go into the detail of the various meetings and discussions in which the claimant's advisors were involved. However, a report was obtained from a Mr Rickard, a consultancy-engineer, on behalf of the claimant in January 2009. This made the point that the presence of the artesian well in one of the claimant's lakes and the fact that the water level in Lake 1 was some 0.3m above the surrounding water table made it clear that Lake 1 was fed by water from the artesian source. So much is I think agreed by all. Eco-Check's soil survey did not shed much light on the geology of the site since the core samples only went to a depth of about 1m. Mr Rickard stated that overall it was clear that the construction of the lakes had had a very significant effect on the former marshy fenland, and was likely to continue to have a negative impact on the claimant's fishery in terms of the groundwater regime. Again, I do not understand those views to be contentious. He concluded thus in paragraphs 5.5 and 5.6 of his report:-
"5.5 Undertaking a detailed investigation into the hydrogeology of this site would be expensive, time-consuming and possibly inconclusive. In my opinion it is now up to Mr Tunmore to demonstrate beyond reasonable doubt that the outflows from his lakes do not constitute an unlicensed groundwater abstraction. I recommend that my report is passed on the Environment Agency, together with the evidence of the scale of the overflows from Mr Tunmore's lakes, with the request that the situation is investigated as a matter of urgency. The Environment Agency has previously stated that the outflow from the lakes is unlikely to be more than 40m³/day (which in itself would require a licence). The evidence that it is currently nearly eight times this figure should act as an incentive for further investigation.
5.6 If it is determined that there is excessive and unlicensed groundwater abstraction, there remains the question as to how this can be resolved. Filling in the offending lakes with suitable spoil could reduce the abstraction level, but the adverse environmental impacts would need to be assessed in advance and appropriate mitigation measures taken. Even if such action was deemed to be appropriate, it could take years for the case to be resolved and the remedial works implemented. In the meantime, Mr Chetwynd's problem remains unresolved."
28. Miss Murphy relies on the first sentence of paragraph 5.5. But Mr Rickard does not suggest that filling in of some sort is not an option. And he makes clear that in his view further more detailed consideration is needed. Mr Tunmore has caused the problem and it is not unreasonable to require him to pay for any reasonable investigatory work that may be required. Since the scheme now approved is not working because the overall outflow is not limited to 20m³, the claimant is entitled to suggest that more investigation and other measures are needed. At least a more intensive investigation may be required.
29. In relation to Lake 1, the scheme approved involves a piped outlet with a discharge rate set to less than 20m³ per day. Mr Tunmore's advisors stated that flow had been checked and established to be approximately 6m³/day. There would be no other outflows from Lake 1. Excess water would flow over the lowest bank level and would flood low areas around the lake. This was accepted by the EA which stated:-
"... as the discharge through the pipe is restricting outflow from the pond to less than 20m³/day it appears that the scheme meets the wording of the conditions.
If the outflow from pond 1, by means of a piped system, is restricted to less than 20m³/day then the activity will be classed as a de-minimis one and so would not require an abstraction licence."
Thus ‘outfall' in the conditions is said to be limited to water which leaves the lake through a pipe.
30. Section 24(1) of the 1991 Act prohibits any person from abstracting water from any source of supply without a licence. Section 27(1) provides that that prohibition shall not apply to any abstraction of a quantity of water not exceeding 20m³ per day. Section 221(1) defines ‘abstraction' thus:-
"'abstraction' in relation to water contained in any source of supply, means the doing of anything whereby any of that water is removed from that source of supply, whether temporarily or permanently, including anything whereby the water is so removed for the purpose of being transferred to another source of supply, and ‘abstract' shall be construed accordingly."
This is a wide definition and prima facie would seem to apply to the abstraction of the water from the underground stratum into in particular Lake 1. ‘Source of supply' is defined to include ‘any underground strata in which water is or at any time may be contained.'
31. The defendant and the EA rely on s.221(3) which is said to support the view that natural overflow from the lake is not abstraction. The subsection provides:-
"Any reference in this Act to water contained in underground strata is a reference to water so contained otherwise than in a sewer, pipe, reservoir, tank or other undergroundworks constructed in such strata; but for the purpose of this Act water for the time being contained in ... (b) any excavation into underground strata, where the level of water in the excavation depends wholly or mainly on water entering it from these strata, shall be treated as water contained in the underground strata into which ... the excavation was made."
It is submitted that, since abstraction requires the doing of something, a natural overflow of water which is treated as contained in the underground strata cannot amount to abstraction. It is only if something such as the provision of a pipe is done to achieve the outfall that abstraction occurs. This in my view leads to a curious and anomalous result. The reality is that work is done by excavating into the underground strata and that work causes the outfall by whatever means of the water coming from the underground strata. The digging of the lake with its edges at a particular height is the doing of work. It follows in my view that the EA's initial view was correct and that ‘outfall' covers all the water that leaves the lake. Thus the scheme approved does not because it cannot comply with the Condition. It is only if all outfall could be limited to 20m³, which may require some infilling of the lake, that permission should have been granted.
32. Finally, Mr Wolfe draws attention to the council's constitution which provides that an area committee must refer an application to the Planning Committee if the area committee wishes to make a decision which the Director of Planning, Housing and the Built Environment has indicated would be contrary to policy. Such an indication was not given. Mr Wolfe submits that absence of such an indication should not confer jurisdiction on an area committee if it ought to have been given and the circumstances make clear that the permission would be contrary to policy.
33. Miss Murphy submits that, faced with the unlawful development, the decision to grant the permissions was in accordance with ENV 13 and 14 since it was the only practical means of safeguarding the site's nature conservation interest. But no development such as was carried out by Mr Tunmore would have been permitted since it would clearly have been in breach of ENV 13 and 14. It is not in my view permissible to regard the existence of the unlawful development as a basis for saying that the grant of permission, described by Miss Murphy as the ‘least worst' solution, is in accordance with the policies. Permission can properly be granted if material considerations are said to permit it notwithstanding it is contrary to policy. A retrospective permission is in no different position in policy terms to a prospective permission, although the existence of the development, if contrary to policy, may justify a grant as a material consideration which enables development contrary to policy to be allowed.
34. I think there is considerable force in Mr Wolfe's submission. However, since for the reason given in this judgment I am satisfied that there are defects in the way in which the permissions have been considered and granted, I am of the view that the permissions were not lawfully granted. Accordingly, I do not need to make a final decision on the jurisdiction point. But I would observe that it is only if it is clear beyond any argument that the Director should have indicated that it would be contrary to policy that jurisdiction would be lacking. There was an argument, which I believe to be wrong, that the existence of the development meant that to grant permission would not be contrary to policy. But I do not think it was so clearly wrong as to lead to lack of jurisdiction. However, any reconsideration should not be by the area committee.
35. The conditions were defective in that they do not reflect the wishes of the committee or the concerns of the statutory consultees which were being met by those conditions. The recent proposal for a s.106 agreement does not cure the defect since it is because of the definition given of water abstraction unsatisfactory. Further, there has been a failure to comply with the requirements of the EIA regulations. And, as it seems to me, the condition to limit to 20m³ has not been complied with because of the outflow from Lake 1. Thus much greater investigation is needed and the permissions granted cannot be said to be lawful.
36. Neither the claimant nor the defendant suggested that if I accepted the claimant's case I should not quash the permissions. That I shall therefore order and will hear counsel on any other order or direction.