Angler secures quashing of grant of planning permission for temporary outfall on Cumbria river

A member of an angling association has secured the quashing of a grant of planning permission for the installation of a temporary outfall from a waste treatment works on a river in Cumbria.

The claimant in Preston, R (On the Application Of) v Cumbria County Council [2019] EWHC 1362 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.

He applied on his own behalf and on behalf of the other members of that association for judicial review of the county council's decision of 17th October 2018.

By that decision granting permission to the interested party, United Utilities, the defendant local authority varied a condition attached to an earlier grant of planning permission which had permitted the installation of a temporary outfall from United Utitilities’ Kendal Wastewater Treatment Works into the River Kent. The effect of the permission of October 2018 was to extend for a further period the time for which that development was permitted.

The claimant, Mr Christopher Preston, argued that the decision was unlawful in two regards:

1. There had not been a "screening opinion" for the purposes of the Town and Country Planning (Environmental Impact Assessment) Regulations 2017;
2. There had not been an "appropriate assessment" for the purposes of the Conservation of Habitats and Species Regulations 2017.

Although it initially took a different view Cumbria accepted that the decision was unlawful on both grounds. At one stage the council indicated that it was proposing to revoke the permission under section 97 of the Town and Country Planning Act 1990, but it no longer intended to take that course.

Instead it said it would consent to the quashing of the permission granted. Save for the provision of a position statement the defendant council took no part in the proceedings.

United Utilities resisted the claim, however. It said that Cumbria’s decision was lawful. It suggested that the development for which permission was given in October 2018 was outside the scope of the EIA Regulations meaning that no screening opinion was required. It also said that in the circumstances here the Habitats Regulations did not require there to be an appropriate assessment.

His Honour Judge Eyre QC concluded that the permission sought and given was permission for Schedule 2 development for the purpose of the EIA Regulations and so a screening opinion had been necessary.

He also found that there had been a failure to comply with the requirements of the Habitats Regulations and so the second ground of challenge was made out.

The judge therefore upheld Mr Preston’s challenge and quashed the planning permission.