Chetwynd v South Norfolk District Council & Ors

Retrospective planning permission remains subject to the same policy requirements as prospective permission. An unlawful development cannot itself justify treating permission as compliant with restrictive planning policies, although its existence may be a material consideration supporting permission contrary to policy.

Where development is an integral groundwater abstraction scheme exceeding the relevant threshold, the Environmental Impact Assessment Regulations 1999 require a lawful screening opinion. Conditions intended to restrict abstraction must clearly regulate the total outflow from the site. A condition limiting only piped discharge is inadequate where excavation causes groundwater to leave through natural overflow as well.

The claimant sought judicial review of two retrospective planning permissions granted by South Norfolk District Council for four fishing lakes and associated works at Carleton Rode Fen, a County Wildlife Site. The permissions were subject to conditions intended to protect the fen’s hydrology by restricting outfall to less than 20 cubic metres per day.

The claimant accepted that complete restoration was no longer practicable, but challenged the permissions on the grounds that the conditions were defective, that the total abstraction was not properly controlled, and that no lawful environmental impact screening had occurred. He also raised a question concerning the planning committee’s jurisdiction.

1. The permissions were quashed. The development had materially damaged the fen and was contrary to Policies ENV 13 and ENV 14 of the South Norfolk Local Plan. Retrospective permission is not in a different policy position from prospective permission. The existence of an unlawful development may be a material consideration capable of justifying permission contrary to policy, but it cannot itself make the permission policy-compliant.
2. The development constituted a groundwater abstraction scheme within paragraph 10(h) of Schedule 2 to the Environment Impact Assessment Regulations 1999. The lakes abstracted groundwater, and the three-lake application had an area exceeding the one-hectare threshold. The applications had to be considered together because they formed an integral part of a more substantial development. A liberal approach was appropriate to ensure that environmentally harmful development was properly investigated.
3. The council had failed to produce and register a lawful screening opinion. It was insufficient to assert that the environmental effects had been considered, particularly when the reasons for concluding that an environmental statement was unnecessary had not been formally recorded and significant environmental effects were plainly likely.
4. The conditions limiting outfall to less than 20 cubic metres per day were defective. They did not clearly impose an overall limit for the whole site, and the proposed section 106 agreement did not cure the defect because it defined abstraction as piped outflow only.
5. Under sections 24(1), 27(1) and 221(1) of the Water Resources Act 1991, abstraction concerns the removal of water from a source of supply. Section 221(3) did not exclude natural overflow from a lake excavated into groundwater. The excavation and its configuration constituted the relevant act, so outfall included all water leaving the lake, whether through a pipe or by overflow. The approved scheme therefore could not comply with the condition.
6. The court did not need finally to determine the planning committee jurisdiction issue. It observed that jurisdiction would be absent only if it were clear beyond argument that the Director of Planning should have indicated that the proposal was contrary to policy. Any reconsideration should not be undertaken by the area committee.

The judgment records that Sullivan J initially refused permission, stating among other things that the development was not EIA development. On oral renewal, Cranston J directed a rolled-up hearing. Collins J granted permission and determined the substantive claim.