Judgment has been handed down in Preston, R (On the Application Of) v Cumbria County Council  EWHC 1362 and a grant of planning permission for a temporary outfall from a Waste Treatment Works in Cumbria operated by United Utilities has been quashed. Mr Preston, the Claimant, was a trustee of the Kent (Westmoreland) Angling Association, an unincorporated association with exclusive fishing rights on a stretch of the River Kent in Cumbria next to the Waste Treatment Works.
The Defendant Local Planning Authority had granted planning permission for an extension of time for the use of the temporary outfall. The Claimant advanced two grounds of challenge against the lawfulness of the grant of planning permission: there had not been a screening opinion for the purposes of the Town and Country Planning (Environmental Impact Assessment) Regulations 2017; and there had not been an appropriate assessment for the purposes of the Habitats and Species Regulations 2017.
The Defendant Local Planning Authority did not resist the challenge but United Utilities (the Interested Party) defended the legality of the planning permission.
His Honour Judge Eyre QC (sitting as a judge of the High Court) found for the Claimant on both grounds. HHJ Eyre QC held that the permission constituted permission for Schedule 2 development under the EIA regulations and that as such a screening opinion was necessary. On the second ground, he held that the Defendant had to consider whether the discharge through the outfall had the potential for a significant effect upon the site and, If there was such potential, then an appropriate assessment was required. The assessment of likely significant effects provided in support of the application for planning permission only considered the potential effects of the construction of the temporary outfall and there should have been a further appropriate assessment addressing the potential effects of the discharge through the outfall. Further, whilst the views of Natural England and the role of the Environment Agency have great significance in that exercise they do not remove the need for it. Specifically, the position and powers of the Environment Agency do not remove the need for the Defendant to engage in an appropriate assessment unless the Defendant was enabled to say that any risk of a significant effect was excluded on objective information.
John and Constanze were instructed by Fish Legal, (formerly the ACA) a unique, non-profit making membership organisation set up to use the law to fight pollution and other damage to the water environment and to protect the rights of anglers and angling.
John Barrett and Piers Riley-Smith acted for the Interested Party, United Utilities.
The case has been reported in the planning and legal press with articles appearing in Planning Resource, Local Government Lawyer and Ends Report.
The full judgment text is now available online via BAILII.
Winckworth Sherwood in conversation with Kings Chambers
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