No further legal proceedings will now be taken by Henley, Shiplake or Harpsden Councils to challenge the decision made by SODC to discharge the planning conditions on the housing development at the former Wyevale Garden Centre site due to legal costs and advice that there was not a better than 50/50 chance of success.
The discharge of conditions were for approval of a drinking water source protection strategy, details of sustainable surface drainage measures and a piling matter statement. The site is located within a Groundwater Source Protection Zone with designation SPZ1 (the highest level of risk to the water source from contamination). The developer Beechcroft Developments has planning approval for 40 homes and 250sqm of commercial space.
The Councils aided by the Thames Farm Action Group and their legal advisors came to this decision this week after submitting a pre-action protocol letter to SODC for their decision to be quashed and remitted back to SODC for redetermination last month. Peter Boros, Chair of TFAG said, “Whilst the Councils and TFAG continued to have concerns about the way in which the Environment Agency in particular had responded to and considered the applications, it remained likely that SODC’s approval of the applications would not be found to have been at fault nevertheless, i.e. SODC were entitled to rely upon the expertise of the EA who had stated they were satisfied that the proposal involving the sinking of in excess of 400 piles into the site would not carry a material risk to the areas drinking water supply.”
The Councils and TFAG also contested that the Environmental Agency (EA) should be an interested party on this application and raised a complaint against them. The EA is designated to manage activities in order to reduce the risk of contamination and disturbance to aquifers but were not consulted on the original Wyevale outline planning application as they are not a statutory consultee nor on any discharge of conditions.
The Environment Agency responded to the complaint submitted to them by TFAG’s solicitor which said, “We would not usually provide comments on reserved matters applications or discharge of conditions if we have not been consulted on the initial planning application. However, we received a consultation request from the Local Planning Authority on the applications to discharge conditions. Although it was not our usual practice to do so, our planning and groundwater technical experts reviewed the information submitted and provided a consultation response. Our response indicated that we had did not have concerns about the impact of the development on groundwater. In response to your client’s concern about our ‘apparent lack of regard related to the risk assessments provided by the applicant’, I would like to reassure you that we had full regard to all of the information provided.”
“Our view differs from that of your client in respect of the risks posed by the site. My internal investigation into this matter has given me confidence that we have dealt with matters appropriately, and that we have developed an evidence based and reasonable view of the risk. We take a risk-based approach in planning matters. Our review of the information submitted has led me to conclude that the planning application sets out appropriate and reasonable steps to ensure groundwater will not be adversely impacted.”
Peter Boros responded to complaint reply saying “TFAG remains of the opinion, that the EA has been deficient in its response to these planning applications and in their role in protecting the aquifer and scarce water resources. Moreover, it is also alarming that this may prove to be a precedent for future planned developments within this SPZ.”
“Where the EA is very clearly departing from its own guidance, surely there must be reasons for this that should be identified and explained, particularly where another highly regarded professional adviser is suggesting the case is unproven? Moreover, nowhere have we seen any comment about the specific question of how the developer has satisfied the EA via a full and proper ‘Risk Assessment’ as called for by the conditional nature of the outline consent and guidance. I don’t think it unreasonable that where the EA has concluded that sinking in excess of 400 piles in close proximity (plus whatever is required for the balance of the site) will not impact the flow and operation of the potable water supply is such a natural and obvious conclusion that no reference to the elements of the ‘risk assessment’ that demonstrates this, are made?”