Unconnected to the Environment Agency’s unprompted response this week, the planning lawyer instructed by Cadhay has now written to the Agency again – despite their wish to be left alone – after it delivered its Position Statement on Aggregate Industries' proposal to quarry Straitgate Farm:
Unfortunately, the EA's position statement is inadequate. In his recent letter (31 October 2019), Professor Brassington identified several concerns relating to a letter from Wood (2 September 2019), including a need to revise the MWWT model prior to determination of the application, the need to provide an adequate protective buffer on top of the MWWT levels, the inaccuracy of the MWWT model, the impact of quarrying on the spring flows, a misunderstanding of the effect of the prevailing geology and a misunderstanding of the operation of the Cadhay fishponds. Professor Brassington's views are summarised in his "Final Remarks" section of his letter.
Professor Brassington is pre-eminent in this field, his expertise recently recognised by the Geological Society in November 2019 when he was awarded the Whitaker Medal (Hydrogeological Group). His opinions are not only well-evidenced but also demand detailed consideration and analysis.
The EA will be aware of its statutory obligations in its role as a consultee, and of the importance for the County Council to have all necessary and relevant information to enable it to determine the application. The Court has considered this issue on many occasions. For example, in R v Secretary of State for Social services ex p Association of Metropolitan Authorities [1986], the Court stated that "in any context, the essence of consultation is the communication of a genuine invitation to give advice and a genuine consideration of that advice". In Secretary of State for Education v Tameside [1977], the Court confirmed that in making any decision, a public authority must ask itself the right question and take reasonable steps to acquaint itself with the relevant information to enable it to answer that question correctly. Furthermore, the Court has confirmed on several occasions that some matters are so material that failure to consider them would be unlawful (eg CREEDNZ Inc v Governor General [1981] and DLA Delivery Ltd v Baroness Cumberlege of Newick [2015]).
Given the seriousness of the issues raised by Professor Brassington, the position statement fails in every material respect to provide a consultation response on those issues sufficient to enable DCC to determine the application lawfully. When analysed, the position statement merely describes the development, sets out the EA's role and remit and summarises the chronological history of EA's involvement in the matter. Its conclusion then states that the EA is satisfied "that the applicant has undertaken appropriate risk assessment and proposed appropriate mitigation measures to protect water resources", before then stating that the EA will not be providing any further responses on the application.
For the reasons set out above, this is not acceptable. The duties on the EA are to consider the application and provide advice and reasons for that advice which are commensurate with the issues raised. The statutory duty of DCC is to engage with your consultation response and consider the issues identified. Neither of these has happened in this case. Professor Brassington's detailed letter and conclusions have not been addressed or, if they have, there is no evidence of how they have been addressed, nor how such consideration has led to the conclusion set out in the position statement.
My client does not want to engage lawyers to argue its case but is adamant that it expects full consideration of the fundamental and legitimate issues raised by Professor Brassington before any decision is made by DCC on the application. Otherwise, in line with the detailed caselaw on this point, the decision by DCC will be legally flawed.
In the circumstances, I would be grateful if you could either provide a detailed justification for the conclusions in the position statement or, alternatively, now undertake such an assessment so that DCC may proceed to assess your response in full.
