Category Archives: Development

Planning permission failed to properly address impact on Green Belt openness

The National Planning Policy Framework (“NPPF”) says:

“89. A local planning authority should regard the construction of new buildings as inappropriate in Green Belt. Exceptions to this … [include]:

provision of appropriate facilities for outdoor sport, outdoor recreation and for cemeteries, as long as it preserves the openness of the Green Belt and does not conflict with the purposes of including land within it;
… ”
In Boot, R (On the Application Of) v Elmbridge Borough Council [2017] the Defendant’s development plan policy DM17 – Green Belt (Development and New Buildings) said:

“b. Built development for outdoor sport, recreation and cemeteries will need to demonstrate that the building’s function is ancillary and appropriate to the use and that it would not be practical to re-use or adapt any existing buildings on the site. Proposals shall be sited and designed to minimise the impact on the openness of the Green Belt and should include a high quality landscape scheme.”

The planning officer’s report found that the new £17.9m sports ground use proposed, and the buildings and structures required to support it, including the pavilion, floodlights, fencing and car park, would have an impact on the openness of the Green Belt but considered that it would not be significant.

The Defendant’s planning committee accepted in its Statement of Reasons that:

“There will be a limited adverse impact on landscape and visual amenity and ‘openness’ of the Green Belt, however there will also be significant benefits in terms of facilitating the beneficial use of land within the Green Belt by providing significant opportunities for public access and outdoor sport and recreation by improving damaged land which is supported by para 81 of the NPPF.”

Quashing the planning permission the High Court agreed with the Applicant’s barrister that:

“if a proposal has an adverse impact on openness, the “inevitable conclusion” … is that it does not comply with a policy that requires openness to be maintained. A decision maker does not have “any latitude” to find otherwise, based on the extent of the impact. In the present case the Defendant concluded that there was an adverse impact on openness, but nevertheless granted permission without giving consideration to whether under paras 87 and 88 of the NPPF there were very special circumstances that would justify it.”

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Old policies can remain part of a development plan

Where planning applications fall to be considered what is the position where old policies remain part of the development plan?

The starting point, for the purposes of decision-making, remains section 38(6) of the Planning and Compulsory Purchase Act 2004.

This requires planning decisions to be made in accordance with the development plan – and, so, in accordance with those old policies and any others contained in the plan – unless material considerations indicate otherwise.

The National Planning Policy Framework (“NPPF”) and the policies it sets out may, depending on the subject-matter and context, constitute significant material considerations.

The mere age of a policy does not mean it ceases to be part of the development plan. The policy continues to be entitled to have priority given to it.

Paragraph 209 and Paragraph 210 to 215 in Annex 1 to the NPPF provide as follows:

“209. The National Planning Policy Framework aims to strengthen local decision making and reinforce the importance of up-to-date plans.”

“211. For the purposes of decision-taking, the policies in the Local Plan (and the London Plan) should not be considered out-of-date simply because they were adopted prior to the publication of this Framework.

212. However, the policies contained in this Framework are material considerations which local planning authorities should take into account from the day of its publication. The Framework must also be taken into account in the preparation of plans.

213. Plans may, therefore, need to be revised to take into account the policies in this Framework. This should be progressed as quickly as possible, either through a partial review or by preparing a new plan.

214. For 12 months from the day of publication, decision-takers may continue to give full weight to relevant policies adopted since 2004 even if there is a limited degree of conflict with this Framework.”

Paragraph 215 sets out the approach to be adopted in relation to old policies and requires an assessment to be made as to their consistency with the policies in the NPPF.

The fact that a particular development plan policy may be old is irrelevant in any assessment of its consistency with NPPF policies.

“215. In other cases and following this 12-month period, due weight should be given to relevant policies in existing plans according to their degree of consistency with this framework (the closer the policies in the plan to the policies in the Framework, the greater the weight that may be given).”

In the Court of Appeal case of Gladman Developments Ltd v Daventry District Council & Anor [2016] Gladman had made an application for planning permission in May 2014 for residential development of up to 121 dwellings on two fields next to Weedon Bec village. It was not in-fill development of the village. The application was directly contrary to saved Local Plan policies HS22 and HS24.

The Council refused planning permission, especially relying on those saved policies.

Gladman argued that reduced or no weight should be given to policies HS22 and HS24 as they were out of date.

This was based on two principal arguments:

1. the Local Plan related to the period 1991-2006, and its evidence base related to that period, and the Structure Plan, which had been superseded and was no longer a statement of current planning policy; and

2. policies HS22 and HS24 related to housing supply and the Council could not show that it had a five year supply of deliverable sites for residential development, so those policies were deemed to be out of date under para. 49 of the NPPF.

In fact the Council was able to show that with current saved housing policies it had a five year supply of deliverable sites for residential development and also that policies HS22 and HS24 reflected a high degree of consistency with a range of policies in the NPPF, not just housing policies, and so they ought to be given considerable weight despite the length of time they had been in place.

The fact that the Council was able to demonstrate that it had the five year supply showed that there was no unmet housing need which required policies HS22 and HS24 to be overridden in that case. In short the current policies were not “broken” since they could be applied here without jeopardising the five year housing supply objective.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Construction Scheme would not fill shortfall in Scheduled Payments

Sections 109(1) and 110 of the Housing Grants, Construction and Regeneration Act 1996 (“the Act”) require instalment payments to be made for all work under a construction contract lasting 45 days or more.

The parties are free to agree the amounts of the payments and the intervals at which, or circumstances in which, they become due. In the absence of such agreement, the relevant provisions of the Scheme for Construction Contracts (“the Scheme”) apply.

In Grove Developments Ltd v Balfour Beatty Regional Construction Ltd [2016] the defendant contractor said:
– it was entitled to serve an application for a further interim payment and
– that the claimant had failed to serve either a Payment Notice or a Pay Less Notice within the applicable time limits and that in consequence,
– the claimant was liable to pay the defendant £23,166,425.92.

The claimant countered that:

– the defendant had no contractual right to issue or be paid in respect of the application for a further interim payment and, so, the notice regime was irrelevant OR
– that on a true interpetation of the Contract the final date for payment was 18 September 2015 which would mean that the Pay Less Notice which it issued on 15 September 2015 was issued in time and effective.

The defendant contended that Section 109(1) of the Act requires instalment payments to be made for all work under a construction contract lasting 45 days or more. Here the Schedule of Payments only covered interim payments up to and including 22 July 2015. Since the construction contract failed to cover a further interim payment invoiced on 21 August 2015, the relevant timing provisions of the Scheme would apply to it.

The High Court said where sections 109 or 110 of the Act were engaged, the payment provisions of the Scheme would only be imported and apply to the parties to the extent that they have not already concluded binding contractual arrangements that can remain operative.

Those payment provisions would not automatically or necessarily be imported in their entirety.

The arrangements under a contract may be incapable of forming part of a payment scheme when read against the Scheme. Here it may be necessary to import the whole of the Scheme’s Payment provisions.

“But that is not a necessary or correct outcome if the existing contractual arrangements are capable of co-existing with some of the Payment provisions of the Scheme to form a coherent whole.”

There was no requirement as to when such payments are to be made: any arrangement which involved one or more instalment payments would be sufficient. Thus a contract prescribing one periodic payment, even of an insignificant amount, would seem to meet the requirements.

It followed that if the parties enter into an agreement about the amounts of the payments and the intervals at which, or circumstances in which, they become due, the mere fact that the agreement does not provide for interim payments covering all of the work under the contract is no reason to import the provisions of the Scheme to supplement their agreement so as to generate interim payments covering the work not covered by their agreement.

Under Section 109(2), the parties could agree stage payments by reference to stages at highly irregular intervals and for the payment of highly variable amounts. So, it would have been open to the parties to agree the front loading of payments in advance of the value of the work done or to agree that payments would be withheld until very late on. Indeed nothing in section 109(2) prevented the parties from agreeing that the amount of a payment shall be nil.

The parties’ agreement was clear and provided for 23 interim payments on the dates set out in the agreed Schedule and no more.

In Balfour Beatty Regional Construction Ltd v Grove Developments Ltd [2016] the Court of Appeal upheld this decision by a majority of 2:1.

The lead judge said:

” ….the express words used make it clear that the parties were only agreeing a regime of interim payments up to the contractual date for practical completion…….this is a classic case of one party making a bad bargain. The court will not, indeed cannot, use the canons of construction to rescue one party from the consequences of what that party has clearly agreed.”

To exclude the Scheme, the parties must draw up a system of interim payments in good faith. A “cynical device” to exclude the operation of the Scheme by prescribing one interim payment “of an insignificant amount” would be unlikely to be enough. Section 109(2) gives contracting parties a wide scope as to the nature of the regime they may agree.

Here the parties agreed a regime of twenty three interim payments right up to the date specified for practical completion. What had been agreed satisfied the requirements of section 109 of the Act.

Clause 4.14 of the contract provided an adequate mechanism for quantifying interim payments. So, however unusual the contract, it satisfied the requirements of section 110 of the Act.

Accordingly the Scheme did not apply and the appellant could not rely upon the Act and the Scheme to recover interim payments after July 2015.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Contribution towards element of composite development was lawful planning consideration

Planning law recognises the possibility that an application for planning permission may be for a development which includes a number of elements, a composite development. Here, the advantages of one element can be balanced against the disadvantages of another.

In Campaign To Protect Rural England (CPRE), R (On the Application Of) v Dover District Council [2015] China Gateway International (CGI) Limited (“CGI”) applied for planning permission for an extensive development on two sites on the western fringe of Dover. Namely:

(a) outline planning permission for:

(i) a very large residential development at Farthingloe;
(ii) a much smaller residential with hotel and conference centre development at Western Heights; and
(iii) pedestrian access and landscaping work between the two sites;

(b) full planning permission for:

(i) the conversion of existing buildings on both sites for a variety of purposes; and
(ii) the conversion of the Drop Redoubt at Western Heights into a visitor centre and museum.

Landowners agreed in a Section 106 Agreement to make a total payment of £8,132,499 towards a variety of purposes.

Objectors challenged a £5 million “heritage contribution” to be expended on the refurbishment of the Drop Redoubt and it’s conversion to a visitor centre and museum. It would not cover the whole costs.

Payments of £825,000, to assist making a countryside access area between the two sites, and £27,000, to afford a paved footpath between them, were also agreed.

CPRE said the heritage contribution of £5 million was unlawful and so should have been disregarded by the planning committee when determining CGI’s application for planning permission.

At all times material to this case the lawfulness of a planning obligation under section 106 fell to be determined by regulation 122 of the Community Infrastructure Levy Regulations 2010 which provided:

“(2) This regulation applies where a relevant determination is made which results in planning permission being granted for development.

(3) A planning obligation may only constitute a reason for granting planning permission for the development if the obligation is —

(a) necessary to make the development acceptable in planning terms;

(b) directly related to the development; and

(c) fairly and reasonably related in scale and kind to the development…..”

CPRE said where the planning obligation under a section 106 agreement was to make a payment of money for a specified purpose, “development” in regulation 122(2) meant that part of the development, for which planning permission is sought, which funds the contribution. Here it was the development of the Farthingloe site which would fund the heritage contribution for the Western Heights site. So it was unlawful and should have been disregarded.

Disagreeing with CPRE the High Court said “development” in regulation 122(2) meant the development in respect of which a “relevant determination”, namely the grant of planning permission under section 70 of the Town and Country Planning Act 1990, is made.

Planning permission here was granted for a composite development of the Farthingloe and Western Heights sites, and access land in between.

The lawfulness of the planning obligation to fund the heritage contribution must therefore be judged by reference to the development for which planning permission was granted; in other words the whole development, not solely or principally the Farthingloe site.

“Treated as a composite development, the questions posed by regulation 122 answer themselves. The heritage contribution was necessary to make the development acceptable in planning terms. Without it, the advantage which went a considerable way to balancing the disadvantage of development on an area of outstanding natural beauty could not be achieved. It was directly related to the development. It was to be expended on a part of the development for which planning permission was given, the restoration of the Drop Redoubt and the creation of a visitor centre and museum. It was fairly and reasonably related in scale and kind to that part of the development — at least that sum was required to fund it — and also to the development as a whole, which was understood, rightly, by all to be a major scheme.”

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Retrospective planning consent too late for DIY Builder VAT refund

Section 35 of the Value Added Tax Act 1994 (“VATA”) says a person constructing a building designed as a dwelling can claim a refund of VAT from HMRC provided that the work undertaken is “lawful and otherwise than in the course or furtherance of any business”. To be “lawful” the work must have been carried out in accordance with “statutory planning consent” that has been granted in respect of that dwelling (note (2)(d) Group 5 schedule 8 VATA).

The refund claim must conform to regulation 201 of the Value Added Tax Regulations 1995 (“VAT Regulations”) which, insofar as relevant to the case that follows, provides:

“A claimant shall make his claim in respect of a relevant building by—

(a) furnishing to the Commissioners no later than 3 months after the completion of the building [the relevant form for the purposes of the claim] containing the full particulars required therein, and

(b) at the same time furnishing to them—

…………………….

(iv) documentary evidence that planning permission for the building had been granted”.

In the First-tier Tribunal (Tax) case of Reynolds v Revenue and Customs [2016] a proposed dwelling with only planning permission for an extension and extra storey was in fact required by the building inspectors to be demolished and restarted from scratch because the foundations would not be adequate.

The tribunal said the legislation had to be construed strictly and:

– the demolition and rebuilding of the property was not in accordance with the planning permission then in force and

– the retrospective planning permission for the more extensive works which actually occurred, was not provided to HMRC within three months of completion of the property as specified by regulation 201 of the VAT Regulations.

“…..the legislative requirements for claiming a VAT refund are strict and HMRC are allowed no discretion to accept something less than the prescribed documentation, neither can they extend the time limit. Equally it is not open to us to waive or modify these requirements, even if they lead to what appears to be an unfair result. As a Tribunal created by statute the FTT, unlike the High Court does not have an inherent jurisdiction, rather its jurisdiction is defined and limited by legislation and it does not extend to the power to override a statute (or supervise the conduct of HMRC).”

This blog has been posted out of general interest and does not replace the need to get bespoke legal advice in individual cases.

Planning: Failure to identify development as inappropriate to area

In Lensbury Ltd, R (On the Application Of) v Richmond-Upon-Thames London Borough Council [2016] a development at Teddington Weir, Teddington Lock, Teddington was in an area designated as Metropolitan Open Land (“MOL”).

The London Plan 2015 applied – in particular policy 7.17 which provided as follows:

“Policy 7.17 Metropolitan Open Land

Strategic

A. The Mayor strongly supports the current extent of Metropolitan Open Land (MOL), its extension in appropriate circumstances and its protection from development having an adverse impact on the openness of MOL.

Planning decisions

B. The strongest protection should be given to London’s Metropolitan Open Land and inappropriate development refused, except in very special circumstances, giving the same level of protection as in the Green Belt. Essential ancillary facilities for appropriate uses will only be acceptable where they maintain the openness of MOL.”

On appeal the Court of Appeal said in granting planning permission the Council had:

“gone badly wrong in its consideration of the planning merits of the application for development in this case. It failed to identify the development as inappropriate development in an area of MOL requiring the strongest protection against such development. It failed to consider whether, notwithstanding the inappropriateness of the development, “very special circumstances” exist to justify the grant of planning permission, and it is far from obvious that they do. On the materials available before the court.”

Policy 7.17 said without “very special circumstances”, planning permission should be refused:

“to safeguard important open areas from “death by a thousand cuts”, by a series of planning permissions being granted for developments each apparently reasonable in itself but having a serious cumulative detrimental effect on the important public interest in the continuing openness of MOL and the Green Belt.”

Accordingly, “the Council failed to appreciate that the planning application was for development which was inappropriate in the context of MOL and therefore failed to ask itself the critical question, whether very special circumstances existed which justified the grant of planning permission.”

Nor was it appropriate for the court to execise its discretion not to quash the decision:

“In light of the strictness of the policy in policy 7.17 and the importance of the public interest it protects, I do not think that it can be said that it is highly likely that the outcome for the Appellant would not have been substantially different if the conduct complained of (i.e. failure to understand and apply policy 7.17 correctly) had not occurred.”

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

World Heritage Site Planning: Council did not breach duty to notify Government

Sub-paragraph (2) in paragraph 18a-036 of the Planning Practice Guidance requires information to be provided to enable the Government to comply with it’s obligations, under the 1972 World Heritage Convention, to warn the World Heritage Committee of any proposals which may have an adverse effect on a World Heritage Site’s Outstanding Universal Value.

In Save Britain’s Heritage, R (On the Application Of) v Liverpool City Council & Anor [2016] the applicant said the respondent had failed to do this in breach of the above and the World Heritage Committee’s Operational Guidelines. The site lay within the buffer zone of the World Heritage Site and included The Futurist Picture House.

The main issue before the Court of Appeal was whether the city council was, or was not, required, to notify the Department for Culture, Media and Sport of the proposal, or at least to consider doing so, in the light of the guidance in paragraph 18a-036 of the Planning Practice Guidance.

The applicant said the city council was required by that guidance to at least consider referring the planning application to the Department for Culture, Media and Sport (“the DCLG”), and, through that department, the World Heritage Committee, as a proposal that “may affect” the Outstanding Universal Value of the World Heritage Site. The applicant said the words “may affect” must mean “may affect in a negative, neutral or positive way”, not merely “affect adversely”.

The court said the words “may affect the Outstanding Universal Value” meant “may have an adverse impact on the Outstanding Natural Value” – the kind of harm to a World Heritage Site or it’s setting that is contemplated in the second part of paragraph 18a-036.

To interpret the words “may affect” as meaning “may affect in a negative, neutral or positive way” would not reflect:

– the concept of effects requiring “appropriate solutions to ensure that the Outstanding Universal Value is fully preserved”, or

– the policies for the conservation of heritage assets, including World Heritage Sites, in the National Planning Policy Framework (“NPPF”)

and it would be at variance with the equivalent previous guidance in paragraph 7.12 of the document “The Protection & Management of World Heritage Sites in England” published by English Heritage and the two government departments in 2009 in response to paragraph 172 of the World Heritage Committee’s Operational Guidelines – which in turn referred to “an adverse impact on Outstanding Universal Value”.

Whether a particular proposal “may affect” Outstanding Universal Value so as to justify informing the World Heritage Committee was a matter for the Government, with the advice of Historic England. But such a discretion for the Government did not imply an obligation for a local planning authority to consult Historic England and the DCLG on any proposal that the authority considered might affect Outstanding Universal Value whether harmfully or not.

Where the guidance referred to the action that local planning authorities can take, it was not in mandatory or even directory terms, but encouraging or, “advisory”.

If a local planning authority did not do what was “very helpful”, it could not be said to have breached any requirement in the guidance or any relevant policy in the NPPF.

There was a sufficient paper trail to show that the City Council had considered the position.

By consulting Historic England first in March 2015 and then in June, the city council enabled them to consider, at a sufficiently early stage, whether the proposed development would have an effect on the Outstanding Universal Value of the World Heritage Site, and, if necessary, to bring the proposal to the attention of the DCLG so that a view could be taken on referral to the World Heritage Committee.

Historic England either had no concerns or were insufficiently concerned about the application so as to advise the DCLG to call it in. In deciding not to call-in the application the Secretary of State must have considered any effect on the World Heritage Site or it’s setting.

There was nothing to suggest that the DCLG would have onward referred the application in any event. Not every proposal for development, that could have an effect upon Outstanding Universal Value, could be referred to the World Heritage Committee.

The fact that the city council did not:

– directly consult the DCLG, or indeed notify it of the proposal, until 25 August 2015, was not a material failure to follow the guidance in paragraph 18a-036;

– refer to the guidance in paragraph 18a-036 in it’s correspondence with Historic England and the two government departments did not mean that it acted inconsistently with that guidance. The question was:

“not whether it explicitly or even consciously followed the guidance, but whether it failed to act in accordance with the guidance in such a way as to vitiate it’s decision on the application for planning permission. In my view it plainly did not. I should add that there is no evidence to suggest that it was unaware of the advice in paragraph 18a-036. But in any event, whether knowingly or not, it acted consistently with that advice.”

……. I reject the concept that the effect of new development on the setting of a World Heritage Site must necessarily be an adverse impact, or indeed an impact of any kind, on it’s Outstanding Universal Value. That concept is not to be found in government policy in the NPPF, or in the Planning Practice Guidance. ……. development in the setting of a heritage asset, in this instance development in the buffer zone of a World Heritage Site, will bring about some physical and visual change within the setting. Such change may potentially affect the “significance” of the heritage asset, in this instance the Outstanding Universal Value of the World Heritage Site. I emphasize “potentially”. There might or might not be an impact on Outstanding Universal Value, and the impact might or might not be adverse. Whether the impact, if harmful, is such as to militate against the grant of planning permission is ultimately a question for the decision-maker to determine in the light of relevant policy, including policy in the NPPF. This will be a matter of fact and judgment in every case.”

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

The need for good PR in rights of light cases

In Scandia Care Ltd and another v Ottercroft Ltd [2016] the developer planned a ground floor café with flats above. This included a new fire escape staircase.

The new staircase obscured the light to the neighbouring restaurant’s kitchen windows.

The restaurant applied for an injunction to get the staircase removed at a cost to the developer of £6,000 even though the loss of light was valued at a mere £886.

The Court of Appeal was unimpressed by the attitude and behaviour of the developer, whose director was thought to have acted in a peremptory and unneighbourly way.

He built the staircase in the face of legal threats knowing it would affect the light and inconsistently with undertakings not to infringe the neighbour’s light, at a time when the neighbour was not there to stop it.

The Court of Appeal therefore awarded an injunction instead of damages and in part as a deterrent to others.

This blog as been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Planning: Sequential test sites must disregard applicant’s circumstances

Planning authorities must “require applications for main town centre uses to be located in Town Centres, then in edge of centre locations and only if suitable sites are not available should out of centre sites be considered.” That is the “sequential test”.

The High Court case of Aldergate Properties Ltd v Mansfield District Council [2016] concerned an application for planning permission for a large Aldi foodstore in a business park, just over 3 miles outside Mansfield town centre.

Aldi already had, in the vicinity, a current store and another that had got planning permission.

The claimant argued that planning permission for this third store resulted from a misinterpretation of the sequential test which had caused a failure to take into account a material consideration.

As it would not have made commercial sense for Aldi to build in such proximity to it’s other stores the planning authority had excluded Mansfield town centre from the sequential test.

The Court said “suitability” and “availability” for the sequential test did not depend on the commercial characteristics of any specific retailer. The test could not be dictated to by any particular trader’s preferences, or what opportunities a retailer had.

Instead the planning authority must look broadly at the proposed development’s approximate size, type and range of goods and at the sites that are available for it.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Planning condition not ultra vires as requiring neighbouring drainage improvement

A planning condition might require the preparation and approval of a surface water drainage scheme, before the approved development is begun, if that planning condition fairly and reasonably relates to the development permitted.

However a condition requiring the submitted scheme to achieve some improvement in the drainage of other land next to the site or nearby would offend the principle that planning conditions must fairly and reasonably relate to the development permitted. It might also be so unreasonable that no reasonable planning authority could have imposed it.

In the Court of Appeal case of Menston Action Group v City of Bradford Metropolitan District Council [2016] the claimant challenged a planning permission.

Condition 15 of the permission said:

“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 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.”

The claimant argued that condition 15 required the submission of a surface water drainage scheme in which “sustainable drainage principles” were properly represented. The claimant contended this would require it to be shown that the potential for reducing existing flooding, both on the development site itself and also in the surrounding area, had been considered. The claimant said a document submitted under condition 15 that failed to demonstrate that this had been done would not be capable of discharging the requirements of the condition.

Dismissing the claimant’s contentions the court said the condition “did not stipulate any improvement – or “betterment” – to the drainage of neighbouring land, or the alleviation of existing flooding beyond the boundaries of the development site.

…….The only measurable requirement in condition 15 is that the submitted surface water drainage scheme “must include details of how the surface water run off rate of 8.2 litres/seconds/ha will be maintained for up to and including the 1 in 100 year (plus climate change) rainfall event”. This specific requirement must clearly be in keeping with “sustainable drainage principles” in the sense in which that concept is used in the condition. And the reason given for the imposition of the condition – “[to] prevent flooding by ensuring the satisfactory storage/disposal of surface water from the site” – must also accord with those principles. The expression “[to] prevent flooding” here cannot extend to include the amelioration or elimination of existing flooding on neighbouring land. It can only mean “to prevent flooding arising from this development” – because it is, after all, the development itself to which the condition must fairly and reasonably relate. The means of preventing flooding is “by ensuring the satisfactory storage/disposal of surface water from the site” – that is, the site once developed.”

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.