R Menston Action Group (acting by Professor John David Rhodes) v Bradford Metropolitan District Council BDW Trading Ltd T/a Barratt Homes Yorkshire West (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stewart |
| Judgment Date | 30 January 2015 |
| Neutral Citation | [2015] EWHC 184 (Admin) |
| Date | 30 January 2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4473/2014 |
[2015] EWHC 184 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Leeds Administrative Court
1 Oxford Row, Leeds LS1 3BG
Mr Justice Stewart
Case No: CO/4473/2014
and
David Wolfe QC (instructed by Schofield Sweeney) for the Claimant
Vincent Fraser QC (instructed by City of Bradford DC) for the Defendant
James Maurici QC (instructed by Walker Morris LLP) for the Interested Party
Hearing dates: 19 January 2015
Introduction
This is the judgment following an oral hearing for permission to bring judicial review. The Claimant's application for permission was adjourned by Judge Roger Kaye QC to open court by order dated 13 November 2014.
The decision under challenge is D's decision of 15 August 2014 that a drainage scheme submitted by IP met the requirements of condition 15 of a planning permission granted on 24 October 2013 by D to IP, to build 173 houses on the edge of what is at present an open field in Menston.
Judge Kaye referred to a number of issues. Not all of these are relevant. What remains is:
a) Whether either or both of two grounds of challenge pass the arguability threshold.
b) Whether the Claimant has sufficient standing to bring the case.
c) Whether the claim is an Aarhus claim.
Though the Aarhus issue was raised, it is now the subject of a consent that the claim is an Aarhus convention claim and the Claimant shall not make any claim against the Defendant for its additional costs incurred in dealing with the Defendant's denial that the claim is an Aarhus Convention case. A consent order dated 10 December 2014 was sent to the court. It was put before me last week for approval. Given that the hearing was going to take place within a matter of days, I did not approve it formally. I do so now. The consequences of that consent order in relation to costs can be addressed once the parties have considered this judgment.
Finally by way of introduction, the judgment in this case will be shorter than if this were a substantive hearing. Nevertheless I intend to deal comprehensively but briefly with the relevant issues raised.
Background
Through what is currently an open field which will be the subject of development runs a water course prone to flooding. Condition 15 of the permission provides:
"Development shall not begin until a surface water drainage scheme for water passing through the site, based on sustainable drainage principles has been submitted to and approved by the Local Authority. This must include details of how the surface water run off rate of 8.2 litres/second/ha will be maintained for up to and including the 1 in 100 year (plus climate change) rainfall event.
Reason: To prevent flooding by ensuring the satisfactory storage/disposal of surface water from the site."
IP submitted to D a report dated January 2014 together with a number of documents aimed at satisfying Condition 15. By a document issued on 15 August 2014 D gave notice "Of its decision to approve the details described above in accordance with the plans, drawings and documents which form part of the application." C's Solicitors sought an explanation for the basis of the decision and identification of the documents on which it had been based. D responded by a letter dated 28 August 2014. C focuses on these words in the letter:
"The drainage officers were, and are, satisfied that, although there will be a new 12 metre length of culvert within the site, there will be no change to either the quantity of flow or the discharge point.
For this reason, and having regard to the underlying basis that the purpose of the drainage proposals for this and any other site must not be to create new flooding risks or to worsen any existing flooding risk, not to put in place a scheme with the purpose of alleviating any existing flood risk as the latter would involve looking at a wider set of parameters which are outside the responsibility of developers, the Drainage officer's advice was that your client's concerns were not such that any decision on the submitted drainage details should be delayed, let alone those details should be rejected."
Ground 1
Paragraph 3 of the Amended Grounds says:
"Key to that challenge is that the Defendant gave its approval on the basis the submitted scheme did not create any new flooding risks or worsen any existing flooding risk ("no worse"). As set out below, the Claimant submits (among other things) that the Defendant's decision was based on a misdirection as to legal requirements in place (including that "no worse" was not here the only requirement) and was in any event an unsustainable conclusion arising from a failure to have regard to material consideration."
This is put more succinctly in the Skeleton Argument of Mr Wolfe QC who says that the first ground of challenge arises from "from the fact that the Defendant erroneously approached Condition 15 as if the scheme in question need only not make the existing flooding situation on the site worse and not at all address that existing flooding."
The issue raised by Ground 1 is as to what Condition 15 meant. That is a question of law/construction for the court to determine. The essential principles for construing a planning permission and conditions are to be found in Telford and Wrekin Council v SSCLG [2013] EWHC 79 in paragraph 33. As a general rule a permission is to be construed within the four corners of the consent itself including the conditions and the reasons for the conditions. There is a strict approach to the use of extrinsic material. Unless another document is incorporated by reference or is necessary to resolve an ambiguity, it should not be used. This is because the planning permission is a public document which runs with the land and should be capable of being relied upon by later landowners and members of the public who may not have access to extrinsic material. A planning permission has to be construed by reference to what a reasonable reader would understand was permitted. Conditions should be interpreted benevolently and not narrowly or strictly and given a common sense meaning. Any ambiguity in a condition has to be resolved in a common sense way having regard to the underlying planning purpose for it, as evidenced by the reasons given for its imposition.
I remind myself of the wording of the Condition. What was required was "a surface water drainage scheme for water passing through the site, based on sustainable drainage principles…"
There is no definition in the permission as to the meaning of "sustainable drainage principles".
C's submission can be summarised as follows:
(i) The reason for the Condition was "to prevent flooding…" that should be given its ordinary meaning and not be construed as meaning that it is limited to not making the existing flooding situation worse.
(ii) The scheme had to be "based on sustainable drainage principles". The court has to determine how that would have been reasonably understood at the time planning permission was granted. In support of this C relies upon:
(a) The Flood Water Management Act 2010 (the 2010 Act) (section 32 and schedule 3) in which "sustainable drainage" means managing clean water with the aim of reducing damage from flooding, protecting and improving the environment and protecting health and safety. It is said the words such as "reducing", "improving" and "protecting" imply making a situation better rather than merely not worse.
(b) In the December 2011 DEFRA document entitled "National Standards for Sustainable Drainage Systems" at paragraph D5 "Drainage systems must be designed so that…flooding from the drainage system does not occur: (a) on any part of the site for a 1 in 30 year rainfall event and (b) during a 1 in 100 rainfall event in any part of …utility plants susceptible to water (eg…electricity substation) or (c) on neighbouring sites during a 1 in 100 year rainfall event."
Before I turn to the details of the counter arguments to these points, it is necessary to deal with the argument which D puts at forefront of its submissions. Quite simply, D submits that the interpretation suggested by C cannot be right, since interpreting the condition so as to require the scheme to ameliorate pre-existing flooding problems not created by the development would be unlawful and contrary to planning policy. This needs to be explored in a little detail. A condition should, if at all possible, be construed as in accordance with the law – cf the Telford case principles para 33(3)(a), (4) and (6).
The power to impose conditions on the grant of planning permission pursuant to section 72 of the Town and Country Planning Act 1990 (the 1990 Act) is subject to restrictions, one of which is that the condition must fairly and reasonably relate to the development permitted. See Newbury District Council v SOSE [1981] AC 578; a condition imposed to address existing deficiencies, which does not fairly and reasonably relate to the development, is not a lawful and valid condition, notwithstanding that it makes further attempts to achieve desirable planning objectives. The authority for this is in the Newbury District Council case at 601D-E, 602F-G, 609F-G, 621F-G and 628G-629B. See also Delta Design and Engineering Ltd v SSETR [2000] 80 P & CR 76; 79 – 81 and 83 and Elmbridge BC v SOSE [1989] JPL 277.
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...Fertilisation and Embryology Authority[2013] EWHC 2236 at [10]; and R (Menston Action Group) v Bradford Metropolitan District Council[2015] EWHC 184 at [39]. 100Mass Energy Ltd v Birmingham City Council[1994] Env LR 298 at 308; R v Cotswold District Council, ex parte Barrington Parish Counc......