Paul Bova+carol Christie V. The Highland Council+bdw East Scotland Limited
| Jurisdiction | Scotland |
| Judge | Lord Menzies,Lord Eassie,Lord Brodie |
| Judgment Date | 03 May 2013 |
| Neutral Citation | [2013] CSIH 41 |
| Court | Court of Session |
| Published date | 03 May 2013 |
| Docket Number | P188/11 |
| Date | 03 May 2013 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Eassie Lord Menzies Lord Brodie | [2013] CSIH 41 P188/11 OPINION OF THE COURT delivered by LORD MENZIES in the petition of by PAUL BOVA and CAROL CHRISTIE Petitioners and Reclaimers; against THE HIGHLAND COUNCIL Respondents: and BDW EAST SCOTLAND LIMITED Interested Party _______________ |
Alt: Thomson, QC, McKay; Biggart Baillie LLP
Interested Party: Martin, QC, Burnet; Maclay Murray & Spens LLP
3 May 2013
Introduction
[1] In early 2009 the interested party applied to the respondents for planning permission to erect 64 houses and associated roads, car parking and below ground services on land at Resaurie, near Inverness. The petitioners are joint owners and occupiers of a house known as "Barnview" which is situated to the south west of the area of land which the interested party wished to develop. By letters dated 20 April and 1 May 2009 the petitioners objected to the application for planning permission. The relevant committee of the respondents resolved to grant the application on 23 September 2009, subject inter alia to a section 75 Agreement being entered into in relation to the provision of affordable housing. The section 75 Agreement was finalised on 22 February and 2 March 2010. On 5 March 2010 the respondents granted planning permission to the interested party for the proposed development.
[2] On 24 February 2011 the petitioners raised the present proceedings for judicial review of the respondents' decision of 5 March 2010. The petition was opposed by the respondents and by the interested party, and the matter came before the Lord Ordinary for a first hearing. The petitioners sought declarator that the decision of 5 March 2010 was ultra vires, and reduction of it. The petitioners argued before the Lord Ordinary that the respondents had failed to understand and take proper account of the petitioners' objections relating to the risk of flooding caused by the likely effects of the development on groundwater on the site, and also that the respondents had failed to adopt a precautionary approach to flood risk, as they ought to have done. Both the respondents and the interested party opposed these contentions, and further argued that the petition had been brought too late and that the petitioners were barred by mora, taciturnity and acquiescence from pursuing it.
[3] By interlocutor dated 19 August 2011 the Lord Ordinary repelled the petitioners' plea-in-law, sustained certain of the pleas-in-law for the respondents and the interested party, and refused the petition. Against that interlocutor the petitioners have now reclaimed. The submissions advanced on behalf of the petitioners before us may be summarised in the following two propositions:-
(1) In reaching their decision dated 5 March 2010, the respondents failed to have regard to a material consideration, namely the increased risk of ground water flooding to the petitioners' property and other properties on the southwest boundary of the site.
(2) Further, the respondents failed to have regard to another material consideration, being a change of planning policy (in the interval between the resolution to grant consent and the formal grant) which introduced a requirement to take a precautionary approach to flood risk.
[4] Both the respondents and the interested party opposed these contentions before us. In addition, the interested party maintained their position that the petition had been brought too late, and that the petitioners were barred by mora, taciturnity and acquiescence from pursuing it. Furthermore, both the respondents and the interested party argued that even if the court were persuaded that either of the above propositions was made out, it should nonetheless exercise its discretion to refuse the remedy sought - a significant time had elapsed since the grant of planning permission, the petitioners had made no application for interim suspension or interim interdict, 13 houses had already been nearly completed and foundations for 20 other houses had been installed, and access roads had been constructed. The utility and practical results of quashing the respondents' decision were questionable.
[5] Each of the parties produced very full and helpful written submissions in support of the respective positions which they adopted before us. We have taken into account everything submitted to us both in writing and orally, but we do not consider that it is necessary to repeat all these submissions at length.
Issue (1):
The consideration given by the respondents to the risk of ground water flooding to the petitioners' property and other properties on the southwest boundary of the site.
[6] Issues of groundwater and flooding were raised in several documents which were before the respondents before they granted planning permission. A Geo-Environmental Desk Study Report prepared on the instructions of the interested party by WA Fairhurst & Partners ("Fairhurst") dated 10 May 2007 was the earliest document available. The sources of information which were utilised in preparation of the report were listed at para 2.0 of the report; these included ordinance survey maps from 1871 to 2004, and three British Geological Survey sheets, namely (1) the Hydro-Geological Map of Scotland dated 1988, (2) the Groundwater Vulnerability Map of Scotland dated 1995 and (3) Scotland Sheet 84W Fortrose Solid and Drift Edition dated 1997. Other sources of information included a consultation with the respondents, a site walkover, and a search of a SEPA website "Indicative River and Coastal Flood Map of Scotland". Section 5 of the report dealt with geology and hydro-geology, and contained the following information at para 5.3:
"Hydrogeology
The BGS Groundwater Vulnerability Map of Scotland indicates the bedrock beneath the site is moderately permeable. The Hydro-Geological Map of Scotland indicates the bedrock beneath the site is a locally important aquifer of lower and middle Old Red Sandstone in which flow is dominantly in fissures and other discontinuities.
The Groundwater Vulnerability Map supplied with the Enviro-Check Report indicates that the strata beneath the site are moderately permeable fractured or potentially fractured rocks which do not have a high primary permeability. Based on the general topography of the area and flow of local surface water courses, it is anticipated that the groundwater flow will be to the NW."
[7] Section 7 of the report gave a preliminary engineering design assessment, which included the following passage:
"Two marshy areas have also been identified at the southern and northern corners of the site. These areas will require further investigation, particularly in the south as the marshy area corresponds to the approximate position of a historical well on the southern site boundary.
The proposed development plan does not appear to take account of the existing pond on site, however this will obviously impact on the final layout."
In its summary and conclusions, the report noted that "it is also considered that there is a significant risk of geo-technical difficulties associated with the made ground and marshy areas at the site."
[8] The second document which was available to the respondents was a Geo-Environmental Interpretative Report prepared by Fairhurst dated 24 July 2007. Para 2.2 of this report dealt with the published geological information and stated that "based on the general topography of the area and flow of local surface water courses, it is anticipated that groundwater flow will be to the north west."
[9] The next document which was before the respondents was a Drainage Impact Assessment and SUDS (sustainable urban drainage systems) Strategy revised as at 15 August 2008 (and again on 17 April 2009). This made reference to the Geo-Environmental Report and noted that the site investigation(which had included sinking boreholes to 7 metres and pits to 3 metres below ground level) did raise the issue of high water-table levels across the site, generally found to be 0.5m to 1.9m below existing ground levels. The rainwater SUDS strategy set out in the report considered on site post-development drainage and offsite post-development drainage. With regard to the first of these, it was calculated that post-development outflows from the site would be less than pre-development flows. With regard to the second, as a result of a separate surface water drainage management system, attenuation was to be provided to limit the post-development flows from the off-site water courses to less than calculated pre-development flows. It noted that it was likely that ponding in the area of Water Course No 2 was as a result of rising ground waters, and made proposals to deal with this.
[10] The respondents' officers were aware of the concerns of local residents, including those on the south west boundary of the site such as the petitioners, about the risk of flooding if the development proceeded. On 19 August 2008 Mr Keith Gibson, the respondents' area planning and building standards officer, sent an email to his colleague Mr McKenzie in TEC Services. This included the following passage:
"As the neighbours on the southwest boundary are particularly concerned about SUDS and flooding Dave has asked if you could confirm your views on the revised proposals if that's possible by email? In particular, he would appreciate any summary you can give on water coming off the hill near Phase 1 which is of concern to neighbours."
[11] Mr McKenzie responded to this by email dated 21 August 2008. He indicated that he could accept the figures provided and that no dwelling would be detrimentally affected, and he supported the approach of the developer's engineers.
[12] By letter dated 20 April 2009 ("the first letter") the petitioners wrote to the respondents objecting to the interested party's proposal to develop the site. In this letter the...
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