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

Retrospective planning permission for EIA development should be granted only in exceptional circumstances and where the developer gains no improper advantage from carrying out development before assessment. The decision-maker must have sufficient environmental information, including material representations from consultees and affected residents, before granting permission. A local planning authority must make reasonable enquiries where technical factual issues are material to the decision. It must also ensure that the planning committee is accurately informed of material expert concerns. A condition cannot cure a decision reached without obtaining necessary information or by misleading the committee about a consultee’s position.

The claimant sought judicial review of a part-retrospective planning permission granted by Maidstone Borough Council for development at a fish farm, including the retention and completion of lakes and the use and redistribution of substantial quantities of deposited material. The development was EIA development.

The challenge alleged failures to consider the exceptional circumstances required for retrospective permission, the developer’s possible improper advantage, groundwater flooding within the EIA process, and the lawfulness of a groundwater condition. The central issues were whether the Council had sufficient environmental information, whether it had made reasonable enquiries, and whether the Planning Committee had been properly informed.

1. Permission quashed. The claim succeeded. The Council had unlawfully failed to consider whether exceptional circumstances justified retrospective permission for EIA development. The officer’s report and committee briefing did not identify that approval should be exceptional or address whether the retrospective application gave the developer an improper advantage. A section 106 timetable did not demonstrate that those questions had been considered.
2. The Environmental Statement used October 2010, rather than the pre-development position in 2003, as its baseline. It was inadequate and gave the committee a confusing picture, particularly concerning groundwater. However, applying the approach in R v Derbyshire CC, ex p Blewett [2003] EWHC 2775 (Admin), those defects did not alone invalidate the EIA because the wider environmental information and representations partly corrected them.
3. The Council had known of groundwater flooding and received material indicating that the unauthorised deposition might have caused it. The Environment Agency’s letter raised concerns about the proposed Condition 24 and stated that further investigation was required. The Council should have deferred the decision or made further reasonable enquiries. It had no adequate expert information enabling it to evaluate or reject the Agency’s concerns.
4. The Planning Committee was not told that the Agency had serious reservations about Condition 24. The officer’s presentation could reasonably have conveyed that the Agency supported the condition. This was a material failure to inform the decision-maker and the decision was unlawful on that ground independently.
5. The court expressed no concluded view on whether Condition 24 was itself unlawful under R v Cornwall County Council, ex p Hardy [2001] Env LR 25, since that issue was unnecessary to the result. Relief was not withheld under section 31(6) of the Senior Courts Act 1981; quashing was the usual remedy and reconsideration might produce a different result.

First-instance judicial review in the Administrative Court. The judgment records no appeal.