Amberley House Investments Ltd., R (on the application of) v Environment Agency

Where an application under section 109 of the Water Resources Act 1991 is valid on its face, the Environment Agency cannot refuse to entertain it merely because an existing, unauthorised structure has not been removed. A subsequent application for consent to erect a different structure is not thereby converted into a retrospective application. If a valid application is neither granted nor refused within the statutory period, consent is deemed to have been given under section 110(2)(b). The Agency’s enforcement power under section 109(4) remains available notwithstanding a further application, although its exercise may be challenged on ordinary judicial review principles.

The claimant owned a car park beneath which a culverted section of the River Lavent ran. After constructing a larger kiosk without planning permission, the claimant submitted two applications under section 109 of the Water Resources Act 1991: one for a smaller kiosk for which planning permission had been granted, and one retrospective application concerning the existing kiosk.

The Environment Agency refused to entertain either application, treating them as retrospective or effectively retrospective applications while the existing structure remained. The claimant sought declarations and mandatory relief. The central issue was whether the first application was invalid merely because the existing kiosk had not been removed.

1. Judicial review allowed. The court declared that application 1 was a valid application under section 109 of the Water Resources Act 1991. The Agency was ordered to pay the claimant’s costs, summarily assessed at £19,258.02.
2. The court assumed, without deciding, that retrospective applications for consent under section 109 were impermissible. Even on that assumption, application 1 was a separate application for a different, smaller kiosk, supported by planning permission. It was valid on its face and could not be treated as a further retrospective application merely because an unauthorised kiosk already stood on the site.
3. Section 110(2)(b) applies where a valid application is neither granted nor refused within two months. The Agency refuses such an application at its own peril. If the application is later declared valid, consent is deemed to have been granted from the relevant time.
4. The Agency’s power under section 109(4) to remove, alter or pull down unlawful works is not removed by a further application for consent. The existence of a pending application may be relevant to enforcement, but it does not create an implied restriction on the statutory powers.
5. The Agency could refuse consent on a without-prejudice basis and obtain a determination of validity, while preserving its enforcement position. Any challenge to a decision to enforce despite a pending reference under section 110(4) would require the claimant to show that the decision was Wednesbury unreasonable.
6. It was unnecessary to decide whether application 2 could be refused as retrospective. The claimant’s entitlement to relief followed from the validity and deemed grant of consent in respect of application 1.