Legal advice has been sought on the decision by Devon County Council's Flood Risk Team, in its role as Lead Local Flood Authority, to withdraw its objection to Aggregate Industries’ proposal to quarry Straitgate Farm, providing that a "pre-commencement planning condition is imposed."
As we have previously posted, the LLFA is clearly not in possession of sufficient information to know whether flood risks can be adequately managed or whether a proposed surface water drainage system is even "feasible". The LLFA’s proposed condition shows that the statutory consultee is not even in possession of "a plan indicating how exceedance flows will be safely managed at the site."
According to the legal advice:
The Local Planning Authority's legal duty to assess the environmental impact of a scheme cannot be contingent on future mitigation, if that mitigation is not informed by sufficient information at the time the decision is made on the planning application. This issue was recently considered by the Court in R. (on the application of Swire) v Secretary of State for Housing, Communities and Local Government [2020] EWHC 1298 (Admin). In Swire, the Court said the following (emphasis added):"106 …because of the lack of expert evidence, the defendant [the LPA] was simply not in a position to make an “informed judgment”... It follows that when the defendant concluded that “he was satisfied that the proposed measures would satisfactorily safeguard and address potential problems of contamination” and that “the proposed measures would safeguard the health of prospective residents of the development”, he was making an assumption that any measures proposed under condition 21 would be successful, without sufficient information to support that assumption.107. Mr Honey relied upon the advice given to the defendant by the Environment Agency, which advised that conditions requiring risk assessment and remediation proposals would be sufficient to mitigate against potential adverse impact on the groundwater. The Environment Agency previously advised the Council that without conditions “the proposed development poses an unacceptable risk to the environment”. I do not consider that the advice from the Environment Agency justified the approach adopted by the defendant. It confirmed the view of the Environmental Health Practitioner and the Council that further investigation and assessment was needed. It did not provide the defendant with any evidence that there was no risk of adverse environmental impacts, nor that mitigating measures had as yet been identified which would satisfactorily overcome any such risk."Furthermore, the Court has made it clear on several occasions that a Grampian condition cannot be used as a means for 'kicking into the long grass' an issue which should be fully addressed at the time the application is determined. It is clear from the LPA's handling of the application (and Policy M24 of the Devon Minerals Plan) that the management of flood risk from the development is of crucial importance. Accordingly, it would be unlawful for the LPA to rely on subsequent consideration of this issue under a Grampian condition as justification for approving the permission, as that is not the purpose of Grampian conditions. Instead, Grampian conditions should only be used when there is a realistic prospect that their requirements will be met so that the development can proceed. It would appear that is not the position here, as the fundamental issue of flood risk management is not being considered in full prior to determination of the application and, as such, the LPA cannot lawfully conclude that the development would be acceptable with the proposed Grampian condition.
