High Court supports Council sustainable drainage conditions on planning permission

The Court of Appeal has recently dismissed an application for judicial review of a local planning authority’s decision to approve a drainage scheme. The Council required the developer to meet “sustainable drainage principles” and imposed a set of conditions to minimise flood risk from the development. We examine the decision and what this means for property development and legal professionals.

A housing development at Derry Hill in Menston, a village near Bradford, West Yorkshire was granted planning permission in October 2013 after an application submitted by BDW Trading Ltd., trading as Barratt Homes Yorkshire West. The developer could not commence construction until a surface water drainage scheme based on sustainable drainage principles had been submitted to, and approved by, the Local Planning Authority (LPA). An action group was formed objecting to the scheme, stating it would exacerbate flooding and made a claim for a judicial review in July 2015, which was initially thrown out but was granted permission to appeal in November. A final decision was laid before the High Court last month.

The key argument in the Court of Appeal was what the Council meant by “sustainable drainage principles” and whether they could lawfully impose those conditions on the development. Given the site was crossed by a water course, the recommendation from the flood risk assessment was to drain to a downstream watercourse. The developers also proposed a detention basin in accordance with the CIRIA SuDS manual, as well as land drainage from swales, ditches and filter drains at the top and bottom of the site.

The Council still believed that houses downstream of the watercourse would face substantial flood risk and wanted to impose further strict requirements – 28 in total. The most contentious was condition 15 – the requirement to meet sustainable drainage principles.

The Courts opinion

Lord Justice Lindblom felt that the planning permission and the conditions had to be considered as a whole. At the heart of the legal argument was what could be reasonably understood by the phrase “sustainability” and, more importantly, whether these conditions met any of the 6 tests applied under the new Planning Practice Guidance. The most important two were:

1. Conditions justified by the nature or impact of the development permitted.
2. Conditions can’t be imposed to remedy existing problems not created by the proposed development.

Representing the Action Group, David Wolfe QC argued that the Flood and Water Management Act 2010 stipulated on and off-site impacts had to be considered and to improve conditions not just maintain the status quo. While LJ Lindblom accepted that the guidance is there, he declared that Condition 15 left it to the Council to judge what was sustainable, but it did not stipulate improvement or betterment of neighbouring land or the alleviation of flooding elsewhere.

While developers should consider wider flood alleviation for the greater public good, condition 15 doesn’t oblige them to do so. The core requirement in this case was that it met the need to manage 8.2 litres per second per hectare of runoff of surface water for up to and including a 1 in 100 year (plus climate change) rainfall event.

Therefore the condition applied to the site itself and, in the Judge’s view, the council was lawful to impose the required conditions on the developer and ensure that it did not adversely affect the flood situation through the development’s existence.

What does this mean for property professionals?

The Court ruling sets out that the Council and its LPA are right to set and impose conditions that are specific to the site and that the developer is bound by these conditions as part of the planning permission.

Conditions must be specific to the site and its specific contribution to flooding. Should a Council impose sustainable drainage measures on-site it has a right to do so if, in its opinion, it will minimise flood risk to the inhabitants.

Property professionals must therefore be alive to LPA requirements to review site conditions. They should expect to meet stricter tests from Councils on meeting sustainable drainage requirements, especially within flood prone areas.

Further information on the Menston case and wider guidance can be found in the Sustainable Drainage Guidance Note prepared with leading drainage barrister, John Bates from Old Square Chambers.

SuDSmart reports provide commercial property lawyers/architects and planning consultants and their developer clients with a clear view on the site capacity for SuDS infiltration and options to consider within the project to meet planning conditions. For more information on SuDSmart, call us on 01743 298 100 or email info@geosmartinfo.co.uk.