Housebuilders and developers will welcome sustainable drainage ruling

Posted by Ronan Daffey on
Housebuilders and other developers will be pleased to know that there are limits to what can be required of them in drainage terms when planning their developments, and local authority planners, too, will take comfort that their assessments cannot be challenged under judicial review unless their decisions could not have been reached by any reasonable authority.

In a recent case, the Court had to decide whether a condition relating to sustainable drainage of a site had been properly discharged by the local authority when a group of local residents applied for judicial review and claimed that the proposed drainage solution would increase the risk of their own properties flooding, as had demonstrably happened in the recent past. It was also part of their claim that the local authority should be taking the opportunity to improve flooding resistance in the locality in accordance with "sustainable drainage principles".

The Court firmly rejected the residents' arguments and grasped the opportunity to introduce a modicum of certainty into the interpretation of drainage conditions at a time when the law and statutory policies on flooding issues are in a fluid state (excuse the pun).

The salient facts of the case are that a national housebuilder wants to build 173 much-needed homes on a site in Yorkshire pursuant to a planning consent which is subject to a condition (15) that:-

"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."

The residents claimed that the local authority's approach to the condition, i.e. that the drainage of the development of the site should only not make matters worse in the locality, was flawed and that consideration should have been, but wasn't, given to the alleviation of existing flooding in the vicinity.

The Court assiduously considered all past authoritative cases on this area of local authority decision making and concluded as follows.

The national policies relating to drainage might have changed, considerably even, between the grant of the conditional planning consent and the application for discharge of the relevant condition(s). It would be totally wrong to ignore the latest policies, as the change in official thinking amounts at the very least to a material consideration.

The local authority's interpretation of the condition in this case, i.e. that it related only to drainage of the site and not the locality, was not perverse and so could not be judicially challenged. Conditions 14-18 dealt with onsite drainage and condition 15 had to be read in that context. National planning policy is that a condition "cannot be imposed to remedy a pre-existing issue not created by the proposed development".

In any event, the Court considered that both the developer's and the local authority's drainage engineers had explored and done their very best to increase surface water storage capacity, which would have the effect of alleviating flooding in the immediate vicinity of the proposed development.

Of particular interest to developers will be the Court's comments on how the current, and fluid, legislation and policies should be approached. For instance, Schedule 3 to the Flood and Waste Management Act 2010, which includes a definition of "sustainable drainage" is not in force and, according to a July 2014 Newsletter, might never be in force; it should not, therefore, be given much, if any, weight. This part of the ruling had the effect of holing the residents' case below the waterline, as they relied on the "definition" in the schedule and an unimplemented consultation paper as the major planks in their arguments.

The Court also paid no attention to the residents' expert report on how the drainage of the proposed development could be altered so as to improve their own lot, on the ground that it was not within its remit to consider drainage issues, only the local authority's decision-making process.

The outcome of the case from a practical point of view is that developers can concentrate on the drainage solutions (and yes, they must still be "sustainable") for their own sites and the effect that they might have on the locality, but not worry too much about the flooding issues that have been caused by previous, maybe unwise, developments.

R (on the application of Menston Action Group) vs. City of Bradford Metropolitan District Council & BDW Trading Ltd. (trading as Barratt Homes Yorkshire West) 2015 EWHC 2292 (Admin).

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Ronan is responsible for keeping the firm’s Real Estate team fee earners up to date with legal developments.

Ronan Daffey
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