Menston Action Group v City of Bradford Metropolitan District Council

A planning permission and its conditions must be construed objectively and as a whole. Extrinsic material has a limited role, but material expressly incorporated into the permission may assist.

The meaning of sustainable drainage principles is context-specific. A drainage condition must fairly and reasonably relate to the permitted development. It cannot require a developer to remedy pre-existing flooding beyond the site, or to investigate measures which the developer cannot be required to implement. A condition may instead require practical measures which drain the developed site and prevent the development increasing flood risk elsewhere.

The council granted planning permission for 173 dwellings at Derry Hill, Menston. Condition 15 required approval of a surface water drainage scheme for water passing through the site, based on sustainable drainage principles, with site-generated run-off restricted to 8.2 litres per second per hectare for a one-in-100-year event plus climate change.

The council approved the developer’s proposed scheme. The action group, which had objected because of existing flooding affecting neighbouring properties, sought judicial review. Patterson J dismissed the claim in the Planning Court: [2015] EWHC 2292 (Admin).

On appeal, the central issue was whether condition 15 required the developer to consider or secure a reduction of pre-existing flooding outside the development site, and therefore whether the council’s approval was unlawful.

Decision

1. The Court of Appeal unanimously dismissed the appeal. Lindblom LJ gave the leading judgment, with which Christopher Clarke LJ agreed. Elias LJ also agreed and gave supplementary reasons.

2. A planning permission is a public legal document. It must be read objectively, as a reasonable reader would read the consent and its conditions as a whole. The court considers the ordinary meaning of the words, the consent’s purpose, related conditions and common sense. Extrinsic material has only limited relevance, though documents expressly referred to in the permission may properly be considered. This approach followed Trump International Golf Club Scotland Ltd v Scottish Ministers [2015] UKSC 74.

3. Conditions must comply with the principles in Newbury District Council v Secretary of State for the Environment [1981] A.C. 578. They must serve a planning purpose, fairly and reasonably relate to the permitted development, and not be unreasonable. Those limits constrain the statutory power in section 70(1) of the Town and Country Planning Act 1990. A condition could not require the developer to cure flooding which pre-dated, and was not caused by, the development.

4. Condition 15, read with condition 14 and the expressly referenced flood risk assessment, required a practical drainage scheme for the developed site. Sustainable drainage principles in this context required satisfactory storage and disposal of surface water from the site, the specified restriction on site-generated run-off, and no increase in flooding of neighbouring land. They did not require betterment of existing off-site flooding, or consideration of optional measures to achieve it.

5. The approved scheme met that construction. It could lawfully be approved, even though it did not eliminate existing flooding affecting neighbouring properties. The general provisions of the Flood and Water Management Act 2010 and the cited policy material did not alter that result.

• Court of Appeal (Civil Division) — dismissed the appeal and upheld the council’s approval of the drainage scheme: [2016] EWCA Civ 796.
• Planning Court (Administrative Court) — Patterson J dismissed the action group’s claim for judicial review of the council’s approval: [2015] EWHC 2292 (Admin).