Menston Action Group, R (on the application of) v City of Bradford Metropolitan District Council & Anor

A planning condition must be construed by asking what a reasonable reader would understand, having regard to its wording, context and stated purpose. It cannot impose an open-ended obligation to remedy a pre-existing problem unrelated to the proposed development. A developer may be required to address flooding caused or exacerbated by its development, but need not provide unrelated betterment. Sustainable drainage principles do not invariably require a decision-maker to pursue improvements, although improvements may properly be considered. In reviewing the discharge of a condition, the court asks whether the authority’s interpretation was legally available and reasonable, not whether the court would have chosen another scheme.

The claimant, a local residents’ group, challenged the Council’s approval of a surface-water drainage scheme submitted under condition 15 of planning permission for up to 173 houses at Menston. The condition required approval of a sustainable drainage scheme for water passing through the site, including controls on surface-water runoff.

The claimant alleged that the Council had misinterpreted the condition by treating a “no worsening” approach as sufficient, and had approved the scheme under a material factual error concerning excavation and the proposed culvert. Permission had been granted on both grounds following decisions by Stewart J and Sullivan LJ. The central issues were the proper construction of condition 15 and whether the Council had understood the drainage works and their likely effects.

1. Construction of condition 15. The words “water passing through the site” and the reason for the condition were capable of referring to an on-site drainage scheme without imposing responsibility for unrelated off-site flooding. The condition had to be read in the context of conditions 14 to 18, which principally concerned the development site. The Council’s interpretation was therefore within the range of conclusions reasonably open to a local planning authority.
2. Relationship to the development. Under Newbury District Council v Secretary of State for the Environment [1981] AC 578, a planning condition must be imposed for a planning purpose and be fairly and reasonably related to the permitted development. That principle prevented the imposition of an open-ended obligation to remedy pre-existing flooding. A developer could be liable for flooding caused or exacerbated by the development, but only to the extent fairly and reasonably related to that development. The reasoning in Carter Commercial Developments Limited v Secretary of State for Transport, Local Government and Regions [2002] EWCA Civ 1994 supported an on-site construction of the condition.
3. Sustainable drainage. The Flood and Water Management Act 2010, Schedule 3, was not in force and operated within a separate statutory regime. It did not require the court to read a universal betterment obligation into condition 15. Nor did the consultation materials establish such a requirement. The Council had in any event considered whether the scheme would improve the drainage position, including through swales, storage and attenuation.
4. Timing and policy. The legal and policy position at both the imposition and discharge of a condition could be relevant. A decision-maker was not required to ignore material policy developments occurring between those stages.
5. Alleged factual error. The drawings, flood-risk addendum and contemporaneous correspondence showed that the Council understood the limited excavation required to install and tie in the culvert. The Council had also provided a sufficiently full and accurate explanation of the relevant facts. The application to cross-examine the drainage officer was refused as late and unnecessary. Both grounds failed, the claimant had sufficient standing, and the claim was dismissed.

This was a first-instance judicial review. Permission was granted on ground 2 by Stewart J, and Sullivan LJ granted permission on ground 1 on the papers. The High Court dismissed the claim.