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

MR JUSTICE SULLIVAN:

In this judicial review, the claimant challenges the defendant's refusal to entertain two applications under section 109 of the Water Resources Act 1991 (the Act) for consent to erect structures over a watercourse. So far as relevant, sections 109 and 110 of the Act, as amended by the environment Act 1995, provide as follows:

In summary, the factual background is as follows. The claimant is the owner of a private car park at Southgate in Chichester. The car park extends to an area of approximately 0.10ha. The River Lavent runs through the centre of Chichester and a significant proportion of the river has been culverted over the years. A shallow culverted section of the river runs beneath the car park.

On 3 February 2003, an application for planning permission was submitted for the erection of a single storey retail kiosk (Building A) along the eastern boundary of the car park. The proposed kiosk was to be of a lightweight construction, sitting on a concrete base above the line of the culvert. The kiosk would provide 28 square metres of retail floor space.

The defendant was consulted by the local planning authority, the Chichester District Council, and by letter dated 19 February 2003, confirmed that it had no objection to the proposal. The defendant has explained that that letter of non-objection was a mistake on its part. In due course, planning permission was granted for the erection of Building A on 2 April 2003.

Following discussions with the local planning authority, the claimant decided that he wished to have permission for a larger building, incorporating disabled toilet facilities. So on 5 August 2003, a second application for planning permission was submitted for a retail kiosk, which would provide a total of 42 square metres of retail floor space (Building B). Again, the local planning authority consulted the defendant, but this time the defendant formally objected to the proposed development on 22 August 2003. The objection was on the following grounds:

Meanwhile, however, the claimant had anticipated events and had begun to construct Building B. The defendant says that the claimant knew from earlier planning applications what the defendant's attitude to building over the culvert was likely to be. In any event, Building B was constructed and it is now occupied by a ladies' fashion shop.

On 30 January 2004, the defendant served a notice on the claimant, requiring the removal of Building B within 14 days, failing which, the notice said that the defendant "may remove, alter or pull down the said kiosk and recover from you the expenses in so doing". The notice is headed:

Although the recitals mention both section 109 and the Byelaws, the operative part of the notice is in these terms:

Meetings and correspondence followed. In a letter dated 26 February 2004, the defendant explained why it objected to the proposal, saying inter alia:

On 15 March 2004, the claimant's planning consultants, Charles Planning Associated Limited (CPA), submitted two applications to the defendant. Each application was accompanied by a separate covering letter. Each application was on the defendant's form of application for consent for works affecting watercourses and/or flood defences. It is not suggested on behalf of the defendant that there were any technical deficiencies in the manner in which the application forms were completed. The form contains various boxes inviting the applicant to give details of the applicant, the agent's details, the applicant's interest in the land, the location, and, in box 5, description and purpose of proposed works.

In the case of application 1, that description was as follows:

Box 9 enabled the applicant to indicate whether or not planning approval had been granted, and reference was made to the grant of planning permission, dated 2 April 2003. The letter accompanying the second application (application 2) said that it was a retrospective application. In box 5, the description and purpose of the proposed works was:

In box 9, the defendant was told that an application for planning permission had been made to Chichester District Council but the application was still to be determined.

The defendant's response to those applications is contained in a letter dated 17 March 2004. The letter said, in part:

The longer letter of 15 March was the letter that accompanied application 2. In addition to explaining that it was a retrospective application, it also advanced arguments as to why the defendant had power to entertain a retrospective application.

The defendant's letter of 17 March 2004 concluded:

The claimant's planning consultants tried once again to persuade the defendant to consider the applications in a letter dated 17 March 2004. Having dealt with application 2 and why it was contended that a retrospective application could be entertained by the defendant, the letter continued:

The defendant was unmoved and adhered to its position, saying in a letter dated 7 April 2004:

To complete the account of the factual background, it may be noted that the second application for planning permission in respect of Building B was refused permission on 30 June 2004. There was one reason for refusal, which was based upon the defendant's objection to the proposal.

In these proceedings, the claimant sought declaratory relief to the effect that the defendant was not entitled to refuse to consider applications 1 and 2, and mandatory orders requiring the defendant to register and determine applications 1 and 2 in accordance with the law.

The parties' skeleton arguments dealt in considerable detail with the question whether or not it was permissible to make an application for retrospective consent under section 109 of the Act. On behalf of the claimant, it was contended that such applications were impliedly permitted by the statutory scheme; the defendant contended to the contrary. In the context of this retrospectivity argument, application 1 received only brief attention. In the claimant's skeleton argument, it was merely submitted that it was not a retrospective application. In the defendant's skeleton argument, it was submitted, in summary, that the defendant should not be required to consider application 1 until such time as the existing kiosk had been removed.

Neither party addressed the implications of section 110(2)(b). In my judgment, the effect of that subsection is of critical importance in determining this application. If it is assumed without deciding the matter that it is not possible to make a retrospective application for consent under section 109, then the defendant was entitled to decline to entertain application 2. Was it entitled to decline to entertain application 1? If it was not, because application 1 was validly made under section 109, then section 110(2)(b) would have the effect that the consent sought was deemed to have been granted. It is not in dispute that the defendant declined to entertain the application: see the last paragraph of the letter dated 17 March 2004. Thus, the consent sought in application 1 has been neither given nor refused.

Mr Tromans very fairly accepted that, if consent was deemed to have been given in respect of application 1, the existence of that consent would be a highly material consideration for the purpose of deciding whether or not action should be taken pursuant to the enforcement notice dated 30 January 2004. Having taken instructions, he went further and stated that, if concluded that there had been a deemed consent in respect of application 1, the defendant would not take enforcement action under section 109(4) in respect of the structure presently on the site, since from the defendant's point of view, the structure which would have deemed consent was no less objectionable than the existing structure. In short, there would be no point in going onto the car park and removing the existing kiosk if on the following day the claimant would be entitled, as a result of the deemed consent and the planning permission granted by the local planning authority, to erect an equally offensive (from the point of view of the defendant) kiosk.

Mr Tromans submitted that section 110(2)(b) did not have any application where, as he put it, there was a "genuine dispute" as to the validity of an application. Paragraph (2)(b) applied only to applications which were "patently good", and that was not the case here. I am unable to accept that submission. If the Agency refuses to entertain an application purportedly made under section 109 on the ground that the application is not validly made under that section, then it does so at its own peril.

The position of the Agency under section 110 may be contrasted with that of a local planning authority which refuses or fails to determine a planning application. In such a case, if notice of the local planning authority's decision is not given within the prescribed time, the applicant may appeal to the Secretary of State: see section 78(2) of the Town and Country Planning Act 1990. In practical terms, a failure to determine a planning application is treated as though it was a refusal.

In the case of applications under section 109, if there is a valid application and no decision is taken upon it within a period of two months, then consent is deemed to have been given. That might at first sight appear to place an undue burden on the defendant, but it is of course open to the defendant in any case where there are questions of validity of an application to refuse consent on a without prejudice basis and then to seek a determination from the court as to whether or not the application was a valid consent, if necessary applying to stay any arbitration or determination by the Secretary of State under subsection (4) in the meantime.

There is no question of an application becoming valid as from the date of the decision of the court that it is valid. If the court grants a declaration of validity or invalidity, the declaration would be to the effect that the application is and was when made either valid or invalid. Thus, I have no doubt that, despite the defendant's doubts as to the validity of this application, if the court concludes that it was a valid application under section 109, section 110(2)(b) applies with the result that consent is deemed to have been granted in respect of Building A.

I turn therefore to the critical question in this case: was the defendant entitled to treat application 1 as invalid on the basis that it was "in reality a further retrospective application"? I emphasise that, in considering this matter, I proceed upon the assumption, and it is merely an assumption, that one may not make a retrospective application under section 109. By retrospective application, I mean an application for consent for a structure that has already been erected over a watercourse which is part of a main river.

In my judgment, application 1 cannot be described as a retrospective application. It was a separate application for a different building. Although not conclusive, it is plainly relevant that there were two separate applications for planning permission, one of which was granted and the other refused. The structure which was erected, the 42 sqm kiosk (Building B), was erected without the benefit of planning permission. Application 1 for permission to erect Building A over the culvert was a valid application upon its face and sought consent to erect a different structure, a 28 sqm kiosk, for which planning permission had been granted.

Mr Tromans submitted that, from the defendant's point of view, the two structures were similar, although Building A was somewhat smaller than Building B. For the purposes of considering an application for consent under section 109, the defendant was simply concerned with that part of the building which was over the culvert. If one looked simply at that part of the building over the culvert, the structure was essentially the same -- the concrete slab was the same and over the slab there was a single storey kiosk.

It is clear that the Agency is not and was not simply concerned about the laying of the slab over the line of the culvert. It was also concerned, at the very least, about that part of the kiosk which was constructed over the culvert. That is plain, for example, from the letter of 26 February 2004, which explains that the structure (the kiosk) "obstructs access not only to the culvert running immediately beneath it, but also to the yard behind it". The slab did not obstruct access to the yard behind it, since vehicles could easily drive over it. It was the building which the claimant had constructed over the slab that obstructed access to the yard behind it.

It is also fair to say that Mr Tromans' emphasis upon that part of the kiosk which lies above the culvert, and only that part of the kiosk which lies above the culvert, is somewhat at odds with the approach of the defendant in the correspondence. Throughout the correspondence the defendant has objected to the erection of the structure as a whole -- the entirety of the slab and kiosk. That indeed is reflected in the requirements of the enforcement notice, which require, pursuant to section 109(4), the removal of the entire kiosk; not merely that part of the kiosk which lies above the culvert.

Mr Tromans told me that it was now accepted on behalf of the defendant that, in so requiring, the notice went too far and should have been confined simply to that part of the kiosk which was above the culvert. So far as the remainder of the building is concerned, the question would arise as to whether any, and if so what, enforcement action might or might not be appropriate under the Byelaws referred to in the recital to the notice. I should emphasise that no point has been taken to date in relation to the Byelaws. If any point is taken, that will have to be considered on some future occasion. The fact remains that, hitherto, the defendant has been contending that it is entitled under section 109(4) to remove the entirety of the kiosk. As I say, that sits somewhat uneasily with the submission that the two applications can be regarded as the same because there is no difference in that part of the building which sits immediately above the culvert.

Even if one was to confine one's attention to that part of the building immediately above the culvert, whilst it may well be the case that the concrete base is the same, a comparison of the Drawings for Buildings A and B shows that the part of the kiosk above the concrete base (which is also included on any basis within application 1) is different; not very different, but it is different from that part of the kiosk in application 2.

The defendant acknowledges the fact that, if the existing kiosk and base were removed, there would be nothing to prevent the claimant from asking for consent for Building A. Its position would appear to boil down to this: because a structure has been erected over the culvert, the claimant cannot apply for consent for Building A until the structure that has been erected has been removed. I can see no warrant for imposing such a restriction upon the powers of either an applicant or the defendant under section 109. There is no such express restriction in the Act itself, even upon the assumption that it is not possible to make a retrospective application in respect of structures that have already been erected over watercourses.

The defendant's principal objection to the making of application 1 would appear to be that, if it was possible to make such applications, then its enforcement powers under subsection 109(4) would be inhibited. It will be noted that there is no right of appeal against a decision by the Agency to carry out work to remove, alter or pull down work that has been erected in contravention of section 109. The Agency's position is that, if one follows the statutory procedures and makes an application for consent to erect a structure over a watercourse, and that application is refused, then one has a right of appeal under section 110(4), because the dispute can be referred to an arbitrator or to the Secretary of State.

On the other hand, a person who has erected a structure over a watercourse without consent has no right of appeal if he disputes, for example, the necessity to take action under subsection (4) to remove, alter or pull down the work. Such a person should not be allowed to, in effect, obtain a right of appeal by making an application for consent to erect a structure similar to that which has been erected without consent.

In practice, since the power to remove, alter or pull down work which has been carried out in contravention with section 109 is discretionary, the Agency does, as a matter of good administration, enable the affected land owner to make representations. It has a detailed policy relating to the use of its enforcement powers. That advises its enforcement officers to assess a number of matters: flood risk and potential for flood damage, public interest, environmental consequences, precedent, previous history, co-operation of the developer and land owner, and, crucially, "would a consent have been issued", before they decide what steps to take by way of enforcement. The policy allows for works which have to be carried out immediately in an emergency, but it also makes it clear that the eventual decision as to what form of action is required "may vary from no action required to immediate mobilisation of Agency work-force".

Thus, in practice, the summary power under subsection 109(4) is, as a matter of good public administration, subject to the Agency's own enforcement policy. It is difficult to see how allowing applications such as application 1 to be made would require the Agency to consider any factors compared beyond those which it considers in any event as part of the process of deciding whether any, and if so what, enforcement action is appropriate. I am not persuaded, therefore, that allowing applications such as application 1 to be made would severely inhibit the Agency's freedom to take appropriate enforcement action.

If a structure has been erected over a watercourse in contravention of section 109, then the Agency has power under subsection (4) to remove, alter or pull down the work. That power is not taken away merely because another application has been made seeking consent to erect a similar structure over the watercourse.

In practical terms, the difference is largely one of form in that, whilst under its existing policy the Agency will always consider the question, "would a consent have been issued", it will be unable to issue a (retrospective) consent. In practice, informal "approvals" have sometimes been given in such cases. If a further application is made, the Agency will have to consider whether or not to issue a consent. If a consent is issued, well and good; if consent is refused, then the sole difference will be that the land owner will be able to refer the dispute to arbitration or to the Secretary of State. The fact that there had been such a reference would not oust the Agency's power under subsection 109(4) to remove the unlawful structure.

Clearly the Agency would be met with the argument that it should hold its hand until the arbitration and/or determination process by the Secretary of State has run its course. It would have a discretion as to whether or not to accept such an argument. Its decision could be challenged by way of judicial review, but so far as the merits were concerned, a claimant contending that immediate enforcement action was inappropriate because there had been a subsequent application which had been refused and which was going to arbitration, would have the burden of demonstrating that the Agency's decision that enforcement was appropriate, notwithstanding the pending arbitration, was Wednesbury unreasonable. Thus, in a case of real emergency, the Agency would not be inhibited from acting.

If, on the other hand, the there is no particular need for urgent action, the procedure adopted by the claimant in this case of putting in an application such as application 1 will give the parties an opportunity of referring any dispute as to what is appropriate to a third party for an independent view. Upon the defendant's approach, that would simply be impossible until such time as the offending structure had been removed. I can see no sensible basis for implying such a restriction upon the defendant's powers into section 109.

For these reasons, I am satisfied that application 1 was a valid application in its own right and it was not to be treated as invalid merely because the structure which had been erected without the benefit of a planning permission had not been removed. In so concluding, I have considerable sympathy for the Agency's predicament. I well understand that it views the River Lavent with particular concern, but it is common ground between the parties that I am not concerned with the merits of application 1. I am simply concerned with whether or not it was a valid application under section 109.

For the reasons set out above, I am satisfied that it was, and since consent has been neither given nor refused, it is deemed to have been granted under section 110(2)(b) and the Agency must live with the consequences of its refusal to entertain the application. In the light of the concessions made on behalf of the defendant (para 23 above) it is unnecessary to decide whether the Agency was entitled to refuse to consider application 2 on the ground that it was a retrospective application.

MR JONES: My Lord, I have an application for costs, which I understand is agreed. A schedule has been agreed and I have shown it to my learned friend before.

MR JUSTICE SULLIVAN: If it is agreed, tell me the figure.

MR TROMANS: £19,258.02.

MR JUSTICE SULLIVAN: £19,258.02. So principle and detail agreed?

MR JONES: My Lord, yes.

MR JUSTICE SULLIVAN: Thank you. Let me just get it quite clear. What relief am I going to be giving you, Mr Jones? It seems to me, perhaps, a declaration in the terms that application 1 was a valid application will suffice. I do not think there is any need to start elaborating the matter because the consequences of that are all spelt out in the judgment.

MR JONES: My Lord, that is right.

MR JUSTICE SULLIVAN: Would you agree with that, Mr Tromans?

MR TROMANS: My Lord, I would.

MR JUSTICE SULLIVAN: The application for judicial review is allowed. I grant the claimant a declaration that application 1 was a valid application under section 109. The defendant is to pay the claimant's costs. Those costs are to be summarily assessed in the sum of £19,258.02.

Any other applications?

MR TROMANS: My Lord, yes, very briefly. I am conscious of the lateness of the hour, but in view of the significance of this culvert for the Agency, I am going to ask your Lordship for permission to appeal on the point as to whether this was, in truth, on the wording of section 109, a valid application.

MR JUSTICE SULLIVAN: What do you want to say about that, Mr Jones?

MR JONES: My Lord, I resist it. Whilst I accept that the retrospective application is of wider general public importance, this particular point is not, which your Lordship ruled upon. Secondly, in my submission, your Lordship expressed the matter in quite clear terms without doubt. That is all I wish to say, my Lord.

MR JUSTICE SULLIVAN: Yes, Mr Tromans, whilst I am not persuaded that there is a real prospect of success, I am persuaded that there is another compelling reason why you should be given permission to appeal. I am not encouraging the Agency to take it up, but that reason is the importance of this culvert from the Agency's perspective. There are disastrous consequences, so far as they see matters, of this particular matter. So I do give you permission to appeal, but as I make it clear, and those behind you will hear, it is simply on the basis that there is another compelling reason; not that I think you have a good prospect.

MR TROMANS: My Lord, I am grateful for that indication.