R Menston Action Group v City of Bradford Metropolitan District Council BDW Trading Ltd T/A Barratt Homes Yorkshire West (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Patterson |
| Judgment Date | 30 July 2015 |
| Neutral Citation | [2015] EWHC 2292 (Admin) |
| Docket Number | Case No: CO/4473/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 30 July 2015 |
[2015] EWHC 2292 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT LEEDS
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mrs Justice Patterson DBE
Case No: CO/4473/2014
and
David Wolfe QC (instructed by Schofield Sweeney LLP) for the Claimant
Vincent Fraser QC (instructed by City of Bradford Metropolitan District Council) for the Defendant
No appearance or representation for the Interested Party
Hearing dates: 15–16 July 2015
Introduction
This is a challenge by Menston Action Group, a local action group, to the approval by Bradford Metropolitan District Council, the defendant, on 15 August 2014 of a drainage scheme submitted under condition 15 of planning permission 10/04551/MAF.
There are two grounds of challenge. They are:
i) Whether the defendant misdirected itself as to the meaning of condition 15 and thereby erroneously approved the submitted scheme; and
ii) Whether in making its decision on 15 August 2014 the defendant acted under a factual error.
The claimant is a group of local residents who live in the vicinity of the site with the benefit of planning permission 10/04551/MAF in Menston, Yorkshire. Professor Rhodes who has filed witness statements in the action has acted as a spokesperson for the action group.
The defendant is the local planning authority.
The interested party is the developer who submitted a planning application to develop up to 173 houses on a greenfield site of 5.43 hectares (the site) on the edge of the settlement of Menston.
The site had formerly been allocated as a phase 2 housing site in the replacement Bradford UDP. For reasons not relevant to the present case that allocation has not been carried forward but the defendant agreed to treat the prior allocation as a material consideration.
On 24 October 2013 the defendant granted planning permission to the interested party for residential development of 173 dwellings on land north- east of 2 The Coach House, Derry Hill, Menston, West Yorkshire. It was a conditional planning permission. Condition 15 is at the centre of the current proceedings. It reads:
"15. 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 in writing by the local planning authority. This must include details of how the surface water runoff 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."
The claimant had been concerned about the grant of permission on the site and had objected to the principle of the development on a variety of grounds one of which was drainage. That was a concern because of flooding which members of the group experienced in their gardens and which occurred in the general locality as photographs in the court bundle testify.
The claimant's concern was, and remains, that the drainage system submitted and approved under condition 15 does not comply with sustainable drainage principles.
Judicial review proceedings were commenced on 25 September 2014. At a subsequent oral hearing permission was granted by Stewart J for the case to proceed on ground 2 only. The claimant appealed his decision on ground 1. Sullivan LJ granted permission to proceed on ground 1 on the papers. The application has thus proceeded on both grounds.
Background
Because of the nature of the dispute between the parties it is necessary to set this section out in more detail than would ordinarily be necessary.
The site is currently an open field through which runs a watercourse. The watercourse is prone to flooding. There are significantly raised water levels at times of heavy downpour both in the field, in the adjacent gardens, around the nearby electricity substation and the road, Dicks Garth Road, beyond.
A flood risk assessment (FRA) was submitted by Eastwood & Partners as part of the planning application documents on 23 August 2010. That noted that the site was zone 1 on the Environment Agency's ( EA) flood map. That meant that the site was categorised as "low risk" and was, therefore, appropriate for development. The assessment noted that there was an unnamed watercourse which ran through the site (south to north) from a catchment comprising steeply sloping rural landscape. The watercourse ran in open channel before discharging to a culverted system in the existing housing area bordering the site to the north (Menston Village). The system ran through the residential gardens before emerging in culvert in the public highway, Dicks Garth Road.
The assessment continued:
"We are not aware of any recorded flooding incidents on the site, other than water reportedly 'sheeting' down the slope during extreme storm events. This situation will be substantially improved as a result of the proposed development due to the interception of existing overland flows and positive drainage of the site."
The principal sources of potential flooding were noted to be:
• Overtopping of the watercourse running through the site.
• General run off from the steeply sloping land to the south.
• Surcharging of proposed drainage and storm water storage systems.
The appropriate standard of protection was noted as 100 years plus climate change.
The FRA recommended that surface water was to be drained to the culverted watercourse downstream of the site. A restricted discharge was appropriate based on greenfield runoff. The calculated figure was 8.2 litres per second per hectare. Storage was proposed in a combination of below ground tanks and a detention basin designed in accordance with principles set out in the sustainable drainage SUDS manual. Land drainage was to be provided in the form of swales, ditches and/or filter drains at the top and bottom of the site connected to the watercourse running through the site. With the implementation of the recommended measures Eastwood & Partners did not consider that there would be any increased risk of flooding to other residential properties as a consequence of the development.
The EA were consulted and the surface water strategy to connect to the existing culverted watercourse in Dicks Garth Road had been discussed and agreed in principle with them.
Calculations for the capacity of the culvert were appended to the FRA. They showed that:
• "The capacity of the open watercourse through the site exceeds the capacity of the culverted section downstream and is capable of delivering the existing natural run-off from the steeply sloping rural catchment upstream without restriction.
• The section through the gardens has a capacity in the range 200–300 l/sec, approximately 15% of the natural 100 year natural flow from the catchment.
• The system in the road has a capacity in the range 400 l/sec, upstream where the culvert first enters the road, to 1,000 l/sec at the downstream end of the surveyed section.
• In comparison with the existing theoretical run-off from the catchment upstream as a whole, including the proposed development site, the system has capacity for a 1 in 1 year event or less. However, the section of culvert in the main road, towards the downstream end of the survey has capacity equivalent to a 1 in 10 year event.
• By limiting the peak flow from the site to the natural 1 in 1 year rate, or less, this represents a reduction at 1 in 100 years of about 20% measured in terms of the average capacity of the culvert.
• By connecting the site drainage to the watercourse downstream of the first section, the flood risk in the gardens bordering the site should be reduced. However, in view of the existing restrictions on capacity in this area, it is anticipated that the gardens will remain at risk of flooding relatively frequently, as at present."
The claimant was concerned that with up to 1,400 litres per second per hectare coming down the existing watercourse there would be the imposition of an additional load into an already overloaded system.
In January 2014 Mr Baines, Director with Eastwood & Partners, submitted an addendum to the FRA which sought to secure the discharge of planning condition 15. The basis of his approach was set out as follows:
"Firstly, it is to be noted that it is not the responsibility of the developer to resolve any existing flooding issues, but it is required that the situation is made no worse as a consequence of the scheme, and the approved Flood Risk Assessment (FRA) prepared in connection with the proposed development is based on this premise."
Various plans and calculations were appended to the addendum including plan 30864/066E of the highway retaining wall showing the culvert inlet. The addendum concluded:
"1. Flows generated on the site as a consequence of the new development will be managed within the adoptable drainage system. The discharge rate will be limited to a maximum 8.2 l/sec per hectare as required by the Condition 15, with below ground storage sufficient for a 1 in 100 year storm event plus allowance for climate change.
2. Overland flows from the wider catchment to the south of the site are unaffected by the development, but the addition of swales along the site boundary will assist with attenuation without increasing flood risk.
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Menston Action Group (acting by Professor John David Rhodes) v City of Bradford Metropolitan District Council Bdw Trading Ltd (t/a Barratt Homes Yorkshire West) (Interested Party)
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