In the 21st century climate of the "Rush to Renewables" everyone would hope that the agency given the job to give out licences for the use of water would be keen to make their decisions transparent and ensure that the person who has met all their requirements, paid all their fees is quickly given a licence. Be warned... it is never that straight forward, rational or impartial.
The Licence Process:
You fill in a form, pay a fee and lodge the form with an Environment Agency (EA) office - the form is then sent at random to an office anywhere in the country- in our case Birmingham. A Permitting Team scrutinises the application for compliance with all technical requirements and overall scheme viability. We employed an agent to deal with technical aspects of our application. Using an experienced agent ensured that the application was sound. The North Mill application was lodged with the EA on 25th September 2009. At that Stage The EA did not request or require that we entered pre-application discussions. ( As it is not a legal requirement.)
After scrutiny - the application is then publicised via local press at the applicant's cost (About £1000 in our case) and the public is able to comment - similar to a standard planning application for building or construction.
In our case unfortunately many local residents were misinformed about both the process and our scheme - which caused considerable embarrassment to a local councillor and a local parish council ( Westwood) . Both of these have apologised for acting on this misinformation and in one case retracted a letter to the Planning Authority.
Anyway, once public consultation is completed the license can be determined. ( This means that they decide whether to give you the licence or not.) the EA ( Environment Agency) has a 120 day statutory window to determine a license from the date of accepted application - this can be extended by formal agreement.
Within the above timescale we were issued with draft licenses (17th February 2010) and were informed that full licenses would follow.
If your license is refused then - as with "normal" planning - you can appeal the decision via the Secretary of State. Also, if the EA have actually failed to determine the license within the agreed timescale - similarly you can also appeal - again to The Secretary of State. The appeal process removes any decision from the hands of the EA - they have no further authority in the matter - the clock stops - according to law until the higher authority has made a decision.
What Went wrong
The Ea launched a biased and irrational series of decisions which were clearly in conflict with their statutory obligations - and also clearly conflicting with the recognised and customary procedure of first come first served.
The Environment Agency allowed a second application to be submitted nearly 4 months after ours (14th January 2010) - by the mill owner opposite, for the same water defined in our application and formally advised as "reserved" for us until full determination of our licences by the EA. This second applicant was advised by the EA to put his application on hold but he refused. If they were following what we understand are established planning law principles - the EA were not even obliged to accept the second application.
This created a problem for EA management and the 2 Permitting Teams (100 miles apart!) -or so they thought. Somebody obviously felt a need to "evaluate" these applications together - however, the process described above does not currently give them that flexibility. From EA FoI ( Freedom of Information) documents it is clear that managers were advised by the EA's internal Technical Help Desk that their statutory duty was to determine the first correctly formed application on its merits. Managers chose to ignore that expert advice.
These schemes were never concurrent.
It is our opinion that if they have given us the licenses there would be no legal redress from the other mill owner as they would have followed due process and law.
However this simple solution did not happen- and because of the mess and lack of understanding of the 'bigger picture' that the EA managers themselves created - they were left unable / unwilling to determine our licence application by the agreed date (we actually gave them more time!) of the 30th June 2010. They were unable to give a valid reason to refuse our application and they were trying to protect an "internal pre applications policy" which has no grounds in law and actually wasn't at that time even in their own "guidelines". ( Pre-apps required only if you are applying for a flood defence application - a licence which we already have...).( Pre-application is when you fill out a form and tell the ea your plans- you don't have to do it - in our case we just talked to them and the planners.)
Because the EA failed to determine our application by the mutually agreed (and extended) date we applied to the Secretary of State on Appeal for non- determination. Once this was lodged with the Secretary of State Planning Inspectorate (PINS) the EA lost their authority to determine our licenses and on our reserved water (30th June 2010).
at this point managers at the EA obviously decided to indulge in some gamesmanship. They decided not to be bound by their statutory duty and obligations - they continued unlawfully with "determination" of the second application giving a water license to the other mill owner the following month. (sometime between the 12th and 14th July) subsequently phoning our agent on 16th July saying they'd "deemed" our application "refused" by dint of not having adequate water... This was followed up with a very confused letter.
We were happy to go to appeal and confident that we had followed the process put forward by the ea and the issuing of Draft licenses confirmed that there was no valid reason to refuse our application.
However Freedom of Information documents which we requested regarding the decision making process of the EA clearly show that they knew that if they issued a license to someone else it would legally block an appeal- the Planning inspector would not be able to give the license to us even if he/she decided that the EA had acted unlawfully (The Planning Inspector cannot take a licence away from somebody!). Our only option was to launch costly Judicial Review proceedings in the High Court Administrative Division and the employment of a legal team.
The EA did not have to determine the other mill owners license until the 9th September 2010 which obviously would have given us time to talk further with the EA.
We did not believe for one minute that a public body paid for by the tax payer would knowingly and deliberately gamble against applicants and manipulate their way to unjust decisions. However the freedom of information documents we received are horrifying and we will be publishing them here for public scrutiny. Local MPs have already been active in trying (mostly in vain) to get some answers from the Environment Agency.
As of February 2012 The awarding of an abstraction licence to Weaver's Mill has been quashed by the high court under Judicial Review as being an unlawful act.
We have recently written a letter to the Prime Minister.
If you take issue with any of the above or have any questions
please click here to go to the blog and comment
The Ea have realised that there will be more cases of two people seeking to use the same water and have proposed some guidelines for how they should manage this- Public consultation ends for this on the 23rd September 2011.
1. Planning law has to inform water licensing and distracting people from this will create a problem.
2.If there are two schemes applying at the same time and there is no difference between them then you have to revert to first come first served - as is customary in planning situations.
3. There has to be a transparent timescale with a defined determination window even when there are two schemes on the table.
4. By forcing two schemes to be looked at together the ea are unlawfully removing the right of appeal because you cannot get redress from the Secretary of state if they have already given your water to someone else and concurrent determination opens the door to all sorts of possible abuses...