What line should a responsible planning authority take?

The Wressle Public Inquiry raised a number of questions regarding jurisdiction and division of responsibility for protecting the water environment between The Council as the Planning Authority and The Environment Agency (EA) as the competent regulatory authority. Other bodies with oversight may also be involved depending on the nature of the development. For example, in the case of the deep oil well at Wressle the Health and Safety Executive with regard to the well design and integrity.

Environment Agency involvement

Considerable discussion took place at the inquiry regarding the role of the EA. The appellant argued that the Council should rely upon the EA for guidance assuming other regulatory regimes work effectively. Also, if the EA had no objections to the development then neither should the council with regard to aspects within the EA’s remit. In the case of the Wressle site, the EA had no objections to the proposals and had in fact issued a revised permit for production of oil on site.

The inspector’s decision

In refusing the appeal the Inspector stated: “I also take into account the EA’s primary role as regulator in the protection of water resources. The EA has considered the proposals acceptable subject to conditions, resulting in the issue of the environmental permit. Nevertheless, these matters do not outweigh other considerations. It is consistent with PPG that a decision maker should be satisfied with regard to issues concerning the effect of development on groundwater resources and water courses.”

“Paragraph 013 (Planning Practice Guidance) lists environmental issues which should be addressed by Minerals Planning Authorities (MPA). They include the risk of contamination to land, surface water and, in some cases, groundwater issues. With regard to hydrocarbons issues paragraph 112 (PPG) explains that some issues may be covered by other regulatory regimes but may be relevant to MPA in specific circumstances. Whilst a range of issues may be put to MPA they should not need to carry out their own assessment as they can rely on the assessment of other regulatory bodies. However, before granting permission they will need to be satisfied that those issues can or will be adequately addressed by taking the advice of the relevant regulatory body.’

Key Questions the inquiry raised

  • Can the EA response be relied upon or does the council have a duty to form its own view?
  • Can the reports of the applicant and their conclusions be relied upon?

In the case of Wressle the Inspector referenced the CIRIA guidance regarding Containment Systems for the Prevention of Pollution that ‘refers to the compulsory provision of a ground investigation report as part of a geotechnical design process.’

The Inspector stated that “The appellant conceded at the Inquiry that no such report had been prepared, …. I consider this to be a serious omission, particularly as the site would operate over a very long period.” Additionally, the Inspector’s report states “evidence provided in drillers’ logs from monitoring boreholes on the site showed that there is no longer an upwards gradient and that there is now a downwards hydraulic gradient.”

In the applicant’s reports ‘the presence of an upward hydraulic gradient that prevents downward movement of water’ had been used as evidence that surface contamination would not migrate down to the underlying Lincolnshire Limestone Principal Aquifer. The inquiry revealed that this upward gradient is no longer present.

Conclusions of the inquiry

  • Councils need to be satisfied for themselves that concerns regarding the water environment are, or can be, addressed.
  • It is very important that reports on which decisions are made are factually correct and have accurate interpretation. If errors are present these may only be revealed by detailed technical review.
  • The technical soundness of reports should be checked before decisions are made based upon their conclusions. It may not be enough to base a decision on the conclusions of a technical report.

There are mechanisms for avoiding decisions based upon unsound reports which could potentially avoid the expense of an inquiry. These include planning performance agreements which provide a timescale and a tool for managing complex or large applications.

Want to know more?

Email Steve Maslen, Head of Environment, for more information on this blog and our environmental expertise. You can also visit our environmental web pages for examples of other areas we work in and services we can provide.

Read more about the Wressle public inquiry in our other blogs.

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