The Newton Mearns Residents Flood Prevention Group For Cheviot Drive V. East Renfrewshire Council+stewart Milne Homes Limited
| Jurisdiction | Scotland |
| Judge | Lord Drummond Young,Lord Brodie,Lady Dorrian |
| Neutral Citation | [2013] CSIH 70 |
| Date | 07 June 2013 |
| Docket Number | P255/13 |
| Published date | 30 July 2013 |
| Court | Court of Session |
| EXTRA DIVISION INNER HOUSE, COURT OF SESSION [2013] CSIH 70 P255/13 | |
| Lord Brodie Lady Dorrian Lord Drummond Young | OPINION OF THE COURT delivered by LORD BRODIE in the reclaiming motion of THE NEWTON MEARNS RESIDENTS FLOOD PREVENTION GROUP FOR CHEVIOT DRIVE Petitioner and reclaimer; against EAST RENFREWSHIRE COUNCIL Respondent and STEWART MILNE HOMES LIMITED Interested party and respondent ________________ |
Petitioner: JD Campbell QC; bto
Respondent (East Renfrewshire Council): Mackenzie, solicitor advocate; Shepherd & Wedderburn
Interested Party (Stewart Milne Homes Limited): M McKay; DWF Biggart Baillie
7 June 2013
Introduction
[1] The petitioner is an unincorporated association of resident owner occupiers of houses in Cheviot Drive and the surrounding area, in Newton Mearns, Glasgow. It was constituted on 7 February 2013 with the following objects:
"To protect properties in Cheviot Drive and properties along the downstream watercourse to the Shawlinn Burn, Newton Mearns, ('the watercourse') from flood risk including changes to drainage, land form or development on the Ayr Road site, Newton Mearns, west of Cheviot Drive and east of Faside Lodge ('the site')."
According to its constitution, anyone over 18 years of age who supports the purposes of the Group and has no potential conflict of interest may be admitted to membership. Election to the Group's committee is, however, restricted to members whose property adjoins the site, the watercourse or a culvert from the watercourse. The Group has two office-bearers.
[2] The respondent is East Renfrewshire Council. It is planning authority for, inter alia, Newton Mearns. The interested party is Stewart Milne Homes Limited.
[3] By way of an application for judicial review the petitioner seeks a number of orders including, in particular, the quashing and reduction of two decisions by the respondent, the first being a decision dated 21 March 2012 by the respondent to grant planning permission ("the Planning Permission") to the interested party for the construction of a number of houses ("the Proposal") on a greenfield site lying to the south of Ayr Road, to the west of Cheviot Drive and to the east of the drive to Fa'side Lodge, Newton Mearns ("the Site"), and the second being a decision dated 2 November 2012 to confirm as fulfilled a condition concerning drainage arrangements which had been imposed when planning permission was granted. First orders in the petition were granted on 14 March 2013. A first hearing in the application for judicial review has been fixed for 25 June 2013 and subsequent days.
[4] Among the remedies sought by the petitioner is a protective expenses order ("PEO") limited to £5000, with no liability in respect of any other party who might enter the process other than the respondent. The petitioner applied to the Lord Ordinary by motion for the making of such an order on 24 April 2013. On 1 May 2013 the Lord Ordinary refused the motion in terms of interlocutor of the same date. The petitioner now reclaims against that interlocutor. The reclaiming motion was heard at a hearing on the summar roll for urgent disposal.
The petition
Grounds of challenge
[5] The petitioner's grounds for challenging the grant of planning permission and the decision to hold the condition satisfied are threefold. They are set out in statements 8, 9 and 10 of the petitions and are as follows:
(1) The respondent acted beyond the powers contained in the Town and Country Planning (Scotland) Act 1997.
(2) The respondent failed to adhere to the relevant requirements of the 1997 Act in respect that it signed off as acceptable a suspensive condition attaching to the Planning Permission which did not comply with accepted, published engineering standards for the installation of adequate means to manage and control water runoff and sewerage provision from the Proposal at the Site.
(3) The respondent, in arriving at the decisions, left out of account significant material considerations in relation to water runoff, drainage and sewerage, so as to place certain of the petitioner's homes and surrounding land at an increased risk of serious flooding in the event that the Proposal is built in accordance with the Planning Permission.
The supporting facts
[4] A feature of the petition is that it contains lengthy and detailed averments of fact in support of the petitioner's contention that the provision made for water management in terms of the Planning Permission was inadequate with the result that, if implemented, there was a risk that properties adjoining the watercourse would experience flooding caused by increased runoff flowing into it from the Site and that the embankment supporting the compensatory flood storage area might fail, causing flooding to certain properties in Cheviot Drive. Many of these averments are denied by the respondent and interested party.
[5] The Lord Ordinary briefly summarised the factual background to the petition in terms that we adopt.
(1) The Site consists of a rectangular field of approximately 4.8 hectares. The topography of the Site forms a hollow which slopes down from the north, the west and the south. The lowest area of the Site is therefore towards the middle of its eastern side, where it is bounded by the rear of houses on the west side of Cheviot Drive. There is no defined watercourse within the Site but there is a spring to the rear of 10 Cheviot Drive. The watercourse from this spring enters a pipe running under the garden of 10 Cheviot Drive and the road itself. Thereafter the watercourse runs for some distance through residential and other properties, sometimes in an open channel and sometimes in pipes, until it discharges into the Shawlinn Burn. The planning brief produced by the respondent for development of the Site included the following observation (paragraph 2.18):
"The site effectively forms a low lying basin with a natural catchment and drainage path through the site towards the eastern boundary. Any proposal should seek to reduce the existing flood issues experienced by adjacent properties and consideration should be given to the use of a SUDs [i.e. sustainable urban drainage system] pond/attenuation system that incorporates a wetland area within the proposed landscape and open space requirements."
The brief also stated (paragraph 6.2):
"The incorporation of Sustainable Urban Drainage principles will be mandatory. The developer will be required to undertake a full Drainage Impact Assessment for the site. The assessment should demonstrate that the proposal will have no adverse impact upon existing drainage infrastructure."
(2) The application submitted by the interested party in respect of which the Planning Permission was granted included a SUDS feature consisting of a wetland area designed to detain but not permanently hold water draining from the site, and also a compensatory storage area designed to ensure that the flood water storage provided by the existing site (in its undeveloped state) was maintained, and that cumulatively with the SUDS detention basin the discharge to the watercourse referred to earlier was limited to a pre-development greenfield run-off rate. Construction of the compensatory storage area would require the formation of an embankment behind some of the houses in Cheviot Drive.
(3) When the respondent granted the Planning Permission, the following condition, numbered (10), was imposed:
"Prior to commencement of works further details of the land drains within plots 29-41 and the maintenance regime for this land drain and the compensatory flood storage area into which it drains shall be submitted in writing and approved by the Head of Environment (Planning, Property and Regeneration). Thereafter the agreed details shall be fully implemented."
In a letter dated 2 November 2012, the respondent made reference to various documents submitted by the interested party and confirmed "...that the information submitted is acceptable and therefore the requirements of condition 10 of the above planning application have been fulfilled".
(4) The petitioner considers that the flood prevention measures detailed in the interested party's application are inadequate to obviate or minimise the risk of flooding by water from the site. In the petition the petitioner avers as follows:
"54. In the circumstances, the respondent has granted the planning permission, and has discharged condition 10 in a manner which is ultra vires the powers contained in [the Town and Country Planning (Scotland) Act 1997]. The respondent has granted the planning permission and discharged condition 10 which will, if implemented together, fail to control the passage and flow of water downstream of the site in a manner which will minimise the risk of flooding. The development of the proposal is likely to cause flooding in certain conditions of runoff and rainfall, and the floodwater thus generated cannot be contained by the SUDS detention basin as it is presently designed and authorised.
55. Separatim the planning permission has been granted by the respondent following their omitting from their decision a material and significant consideration, namely the capacity of the SUDS detention basin as designed, to accept, attenuate and safely discharge runoff water in a manner which will obviate or in any event minimise the risk of flooding at the petitioners' homes downstream of the site. In all the circumstances the planning permission and the discharge of the drainage condition are unlawful and fall to be quashed."
The decision of the Lord Ordinary
[6] There was no dispute before the Lord Ordinary as to the competency of his making an order of the sort sought by the petitioner. However, having summarised the factual background as set out in the petition, the Lord Ordinary, noted that as the petition did not contain a challenge to a decision, act or omission to which the public participation provisions of what is now ...
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