R (on the application of Padden) v Maidstone Borough Council

Town and country planning – Planning permission – Environmental impact assessment (EIA) – Defendant local authority granting retrospective planning permission – Claimant applying for judicial review – Whether defendants failing to consider exceptional circumstances justifying grant of retrospective permission for EIA development – Whether defendants failing to have regard to groundwater flooding in EIA process – Application granted. The owners of a fish farm near the village of Marden in Kent applied for planning permission for an extension to the farm, to form an area of recreational fishing. The defendant local authority granted planning permission subject to various conditions. The owners failed to comply with those conditions and commenced unauthorised works at the site. The site was subsequently acquired by the interested parties who continued to carry out the unauthorised works, in particular, depositing vast quantities of waste, part of which had caused groundwater flooding to the claimant’s home, a 500 year-old Grade II listed timber framed building near a site of special scientific interest. The interested parties applied for retrospective planning permission and the defendants’ planning officer produced a report recommending the grant of permission. However, the report did not address the issue of retrospective planning permission in relation to an environmental impact assessment (EIA) development and the need for exceptional circumstances and made no reference to groundwater flooding. The claimant and the environment agency expressed concerns about the flooding issue but indicated that a report could not be prepared before the planning committee met to discuss the application. The defendants went on to consider the application but gave details of a condition they intended to attach to any grant of permission to deal with the flooding issue. The agency had concerns about the proposed condition but the planning officer did not inform the committee of those concerns. The defendants granted permission subject to the condition regarding flooding. The claimant applied for judicial review of that decision contending that the defendants had unlawfully: (i) failed to assess whether there were exceptional circumstances justifying the grant of retrospective permission for EIA development; and (ii) failed to have regard to groundwater flooding within the EIA process. Held: The application was granted.(1) A public authority had a duty to make reasonable enquiries to try to obtain the factual information necessary to provide a rational basis for a decision on the application before it, especially where it depended on a factual issue. In the case of a planning application, the local authority had power to issue a direction under regulation 4 of the Town and Country Planning Applications Regulations 1988 requiring an applicant to supply any further information necessary to enable the authority to reach a decision, and to provide evidence to verify particulars: Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014; R (Usk Valley Conservation Group) v Brecon Beacons National Park Authority [2010] 2 P & CR 14. The purpose of the application in the present case, which had to be looked at as a whole and with common sense, was to regularise the deplorable situation in which unauthorised work had been carried out for so long and to redeploy the waste material in a different configuration. The application was for the retrospective grant of planning permission for what was accepted to be EIA development and the defendants had unlawfully failed to consider the question of exceptional circumstances. The planning officer’s report to the planning committee had not even drawn to the attention of the members that this was an EIA development, let alone attempted to assess whether there were exceptional circumstances warranting the grant of planning permission. (2) In relation to the flooding issue, the defendants had unlawfully failed to make reasonable enquiries to try to obtain the factual information necessary for its decision on the application. The attitude of the members of the planning committee might have been very different if disclosure of the environment agency’s position and its concern about the condition addressing the flooding issue had been made clear: EC Commission v Ireland (Case C-215/06) [2008] ECR I-4911, R (on the application of Ardagh Glass Ltd) v Chester City Council [2010] EWCA Civ 1498; [2010] Env LR 32 and R (on the application of Baker) v North East Somerset Council [2013] EWHC 946 (Admin) considered. James Maurici QC (instructed by Dechert LLP) appeared for the claimant; Stephen Hockman QC and Megan Thomas (instructed by Maidstone Borough Council) appeared for the defendants; The interested parties did not appear and were not represented. Eileen O’Grady, barrister