Menston Action Group v City of Bradford Metropolitan District Council

In determining a planning application, the flood-risk policies in paragraphs 100, 101 and 103 of the National Planning Policy Framework distinguish plan-making from decision-taking. For an individual application, the relevant requirement is that flood risk is not increased elsewhere and that the sequential and, where necessary, exception tests are applied. The decision-taker is not required to seek out flood-risk betterment, although an offered reduction in risk is a material consideration favouring permission. Planning conditions are construed objectively as public documents. Where a condition requires runoff rates to be finalised and refers to a schematic drainage plan, detailed values and engineering arrangements may be refined provided the underlying drainage principles are maintained.

The claimant challenged two decisions of the defendant local planning authority concerning permission for 12 dwellings at Menston. The first judicial review challenged the grant of planning permission on the grounds that the flood-risk policies had been misinterpreted and that the committee had been misled about the increase in flood storage. The second challenged the subsequent discharge of drainage conditions, including conditions concerning the approved flood-risk assessment, unidentified watercourses and the wider catchment.

The court had to determine the proper interpretation of the relevant flood-risk policies and drainage conditions, and whether the authority had lawfully assessed the material considerations.

1. JR1 Ground 1 dismissed. Paragraphs 100, 101 and 103 of the Framework draw a distinction between plan-making and decision-taking. In plan-making, using opportunities offered by development to reduce flooding is an identified objective. In determining a planning application, paragraph 103 instead requires the authority to ensure that flood risk is not increased elsewhere and to apply the sequential test and, if necessary, the exception test where development is proposed in an area at risk of flooding.
2. The Planning Practice Guidance is subordinate to the Framework and cannot add a mandatory test absent from it. A proposal need not secure flood-risk betterment merely because a better proposal could be devised. However, where a proposal offers a reduction in flood risk, that benefit is a positive material consideration in the planning balance.
3. JR2 Ground 1 dismissed. Applying the approach in Trump International Golf Club Scotland Ltd v Scottish Ministers [2015] UKSC 74, condition 5 had to be read objectively, as a whole and in the context of the permission as a public document. Its requirement that runoff rates be finalised with the lead local flood authority contemplated refinement of the values in the flood-risk assessment. The reference to a schematic drawing required adherence to the drainage principles, not identical detailed engineering arrangements.
4. JR2 Grounds 2 and 3 were unarguable. It was reasonable to assume that unidentified watercourses, culverts or land drains would drain into the existing watercourse. The approved details nevertheless required an amended drainage drawing and further consent before additional drainage work. The wider catchment had been addressed through the flood-risk assessment and the assessment of the existing watercourse.
5. The committee report was to be read practically and straightforwardly. Although the 50 per cent storage statement was potentially misleading when read in isolation, the later lawful discharge of conditions ensured that the additional discharge did not erode the claimed storage increase. Both judicial reviews were therefore dismissed.

This was a first-instance determination of two joined judicial reviews. Permission had previously been granted for two grounds in JR1. In JR2, permission was refused on Grounds 2 and 3, while Ground 1 was heard and dismissed on its merits.