Case No: CO/4473/2014
Neutral Citation Number: [2015] EWHC 184 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT

Leeds Administrative Court
1 Oxford Row, Leeds LS1 3BG

Date: 30/01/2015

Before:

MR JUSTICE STEWART
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Between:

The Queen on the application of Menston Action Group
(acting by Professor John David Rhodes)
Claimant

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Bradford Metropolitan District Council
Defendant
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BDW Trading Ltd T/a Barratt Homes Yorkshire West
Interested Party

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David Wolfe QC (instructed by Schofield Sweeney) for the Claimant
Vincent Fraser QC (instructed by City of Bradford DC) for the Defendant
James Maurici QC (instructed by Walker Morris LLP) for the Interested Party

Hearing dates: 19 January 2015
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Judgment
Mr Justice Stewart: 
Introduction
1.	This is the judgment following an oral hearing for permission to bring judicial review.  The Claimant’s application for permission was adjourned by Judge Roger Kaye QC to open court by order dated 13 November 2014.
2.	The decision under challenge is D’s decision of 15 August 2014 that a drainage scheme submitted by IP met the requirements of condition 15 of a planning permission granted on 24 October 2013 by D to IP, to build 173 houses on the edge of what is at present an open field in Menston.  
3.	Judge Kaye referred to a number of issues.  Not all of these are relevant.  What remains is:
a)	Whether either or both of two grounds of challenge pass the arguability threshold.
b)	Whether the Claimant has sufficient standing to bring the case.
c)	Whether the claim is an Aarhus claim.
4.	Though the Aarhus issue was raised, it is now the subject of a consent that the claim is an Aarhus convention claim and the Claimant shall not make any claim against the Defendant for its additional costs incurred in dealing with the Defendant’s denial that the claim is an Aarhus Convention case.  A consent order dated 10 December 2014 was sent to the court.  It was put before me last week for approval.  Given that the hearing was going to take place within a matter of days, I did not approve it formally.  I do so now.  The consequences of that consent order in relation to costs can be addressed once the parties have considered this judgment.
5.	Finally by way of introduction, the judgment in this case will be shorter than if this were a substantive hearing.  Nevertheless I intend to deal comprehensively but briefly with the relevant issues raised.  
Background
6.	Through what is currently an open field which will be the subject of development runs a water course prone to flooding.  Condition 15 of the permission provides:
“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 by the Local 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.” 
7.	IP submitted to D a report dated January 2014 together with a number of documents aimed at satisfying Condition 15.  By a document issued on 15 August 2014 D gave notice “Of its decision to approve the details described above in accordance with the plans, drawings and documents which form part of the application.”  C’s Solicitors sought an explanation for the basis of the decision and identification of the documents on which it had been based.  D responded by a letter dated 28 August 2014.  C focuses on these words in the letter:
“The drainage officers were, and are, satisfied that, although there will be a new 12 metre length of culvert within the site, there will be no change to either the quantity of flow or the discharge point.  
For this reason, and having regard to the underlying basis that the purpose of the drainage proposals for this and any other site must not be to create new flooding risks or to worsen any existing flooding risk, not to put in place a scheme with the purpose of alleviating any existing flood risk as the latter would involve looking at a wider set of parameters which are outside the responsibility of developers, the Drainage officer’s advice was that your client’s concerns were not such that any decision on the submitted drainage details should be delayed, let alone those details should be rejected.”
Ground 1
8.	Paragraph 3 of the Amended Grounds says:
“Key to that challenge is that the Defendant gave its approval on the basis the submitted scheme did not create any new flooding risks or worsen any existing flooding risk (“no worse”).   As set out below, the Claimant submits (among other things) that the Defendant’s decision was based on a misdirection as to legal requirements in place (including that “no worse” was not here the only requirement) and was in any event an unsustainable conclusion arising from a failure to have regard to material consideration.”
This is put more succinctly in the Skeleton Argument of Mr Wolfe QC who says that the first ground of challenge arises from “from the fact that the Defendant erroneously approached Condition 15 as if the scheme in question need only not make the existing flooding situation on the site worse and not at all address that existing flooding.”
9.	The issue raised by Ground 1 is as to what Condition 15 meant.  That is a question of law/construction for the court to determine.  The essential principles for construing a planning permission and conditions are to be found in Telford and Wrekin Council v SSCLG [2013] EWHC 79 in paragraph 33.  As a general rule a permission is to be construed within the four corners of the consent itself including the conditions and the reasons for the conditions.  There is a strict approach to the use of extrinsic material.  Unless another document is incorporated by reference or is necessary to resolve an ambiguity, it should not be used.  This is because the planning permission is a public document which runs with the land and should be capable of being relied upon by later landowners and members of the public who may not have access to extrinsic material.  A planning permission has to be construed by reference to what a reasonable reader would understand was permitted.  Conditions should be interpreted benevolently and not narrowly or strictly and given a common sense meaning.  Any ambiguity in a condition has to be resolved in a common sense way having regard to the underlying planning purpose for it, as evidenced by the reasons given for its imposition. 
10.	I remind myself of the wording of the Condition.  What was required was “a surface water drainage scheme for water passing through the site, based on sustainable drainage principles…”
There is no definition in the permission as to the meaning of “sustainable drainage principles”.
11.	C’s submission can be summarised as follows:
(i)	The reason for the Condition was “to prevent flooding…”  that should be given its ordinary meaning and not be construed as meaning that it is limited to not making the existing flooding situation worse.  
(ii)	The scheme had to be “based on sustainable drainage principles”.  The court has to determine how that would have been reasonably understood at the time planning permission was granted.  In support of this C relies upon:
(a)	The Flood Water Management Act 2010 (the 2010 Act) (section 32 and schedule 3) in which “sustainable drainage” means managing clean water with the aim of reducing damage from flooding, protecting and improving the environment and protecting health and safety.  It is said the words such as “reducing”, “improving” and “protecting” imply making a situation better rather than merely not worse.
(b)	In the December 2011 DEFRA document entitled “National Standards for Sustainable Drainage Systems” at paragraph D5 “Drainage systems must be designed so that…flooding from the drainage system does not occur: (a) on any part of the site for a 1 in 30 year rainfall event and (b) during a 1 in 100 rainfall event in any part of …utility plants susceptible to water (eg…electricity substation) or (c) on neighbouring sites during a 1 in 100 year rainfall event.”
12.	Before I turn to the details of the counter arguments to these points, it is necessary to deal with the argument which D puts at forefront of its submissions.  Quite simply, D submits that the interpretation suggested by C cannot be right, since interpreting the condition so as to require the scheme to ameliorate pre-existing flooding problems not created by the development would be unlawful and contrary to planning policy.  This needs to be explored in a little detail.  A condition should, if at all possible, be construed as in accordance with the law – cf the Telford case principles para 33(3)(a), (4) and (6).
13.	The power to impose conditions on the grant of planning permission pursuant to section 72 of the Town and Country Planning Act 1990 (the 1990 Act) is subject to restrictions, one of which is that the condition must fairly and reasonably relate to the development permitted.  See Newbury District Council v SOSE [1981] AC 578; a condition imposed to address existing deficiencies, which does not fairly and reasonably relate to the development, is not a lawful and valid condition, notwithstanding that it makes further attempts to achieve desirable planning objectives.  The authority for this is in the Newbury District Council case at 601D-E, 602F-G, 609F-G, 621F-G and 628G-629B.  See also Delta Design and Engineering Ltd v SSETR [2000] 80 P & CR 76; 79 – 81 and 83 and Elmbridge BC v SOSE [1989] JPL 277.  
14.	In tandem with this are the NPPF and PPG which were material considerations in determining the application to approve the scheme required by Condition 15 – the policy being set out in the NPPF, and PPG providing guidance on the application of policy.  NPPF paras 204 and 206 provide that conditions should only be imposed where they are directly related to the development and PPG 21(a) – 004 in answering the question “Does the Condition fairly and reasonably relate to the development to be permitted?” states “A condition cannot be imposed in order to remedy a pre-existing problem or issue not created by the proposed development.”
See also NPPF paragraph 103 which says that the approach to take to flood risk in determining planning applications is: “When determining planning applications, local planning authorities should ensure that flood risk is not increased elsewhere …”
15.	Of course policy cannot change the law but the passages so far cited from policy are consistent, so D submits, with the law.  Also, the passages in policy may properly inform the construction of the condition.
16.	C’s essential response to the point made by D relies upon the case of Carter Commercial Developments Ltd v SOSE [2002] EWCA Civ. 1994.  To this case I now turn.
17.	The first thing to note is that there was no issue about, or consideration of, the authorities regarding a condition being unlawful because it remedied a pre-existing problem or issue not created by the proposed development.  It seems to me that the key to the case of Carter Commercial (paras 5 and 6) is that the issue was whether the condition as properly construed, could require the developer to resolve an off site flooding problem – see also paras 11, 16, 23, 31, 41, 45 – 47.  The circumstances of the decision were specific to the finding of the Inspector which is set out in para 16 of Sullivan J’s judgment.  
18.	For those reasons the Carter Commercial case does not assist the Claimant.  It does not on its facts, nor does it as a matter of principle – indeed as I have said no issue of principle considering the authorities of Newbury DC, Delta Design or Elmbridge was raised – change the law that a condition cannot be imposed to address existing deficiencies which does not fairly and reasonably relate to the permitted development.  The case law makes it clear that whether a condition reasonably relates to the development is a matter for the determining body.  Nevertheless, a planning condition which required IP to do more than not make off site flooding worse would be unlawful in the circumstances of this case. 
19.	That is the end of Ground 1.  First and foremost the Condition must be interpreted such that it complies with the law and with policy which is in tandem with the law.  
20.	If I am wrong about that, I look now at other matters.  First, the 2010 Act on which C relies.  It appears to me that in any event this does not assist.  First, the relevant provisions have never been brought into force.  The fact that the Act has not been brought into force was not pointed out by C in the original claim.  C now says that that is not the issue because they rely on it as providing a basis for what would have been reasonably understood by the expression “sustainable drainage principles” at the time.  I do not accept this line of reasoning.  In any event the context of schedule 3 makes it very dubious as an aid to construction.  It is not planning legislation.  By paragraph 1 of schedule 3 the drainage systems which are addressed are defined as “a structure to receive rainwater except – (a) a public sewer or (b) a natural water course.”  It sets up an approval regime for new drainage systems.  The only “structure” in the present case is the culvert.  
21.	As to the DEFRA document, this was a consultation document of standards which were in draft.  They cannot in my judgment be used so as to interpret the words in Condition 15.  As a matter of fact, the final (2014) version is substantially different from the draft.  
22.	Mr Baines, a Director of Eastwood and Partners, engineers engaged by IP, sets out in paragraph 6 – 12 of his statement a number of documents which are consistent with “sustainable drainage principles” not requiring any amelioration of the present position.  C objects that these were not incorporated into the planning permission.  Nevertheless what they do show at least is that the term is capable of different constructions consistent with D and IP’s case.  
23.	I add, finally, a yet further point which is against C’s case in my judgment.  On the assumption that there is ambiguity in the meaning of Condition 15, Eastwood and Partners’ Flood Risk and Drainage assessment dated 23 August 2010 dealt with the management of flood risk down stream of the site and stated that it is a “fundamental objective of the design not to worsen the existing situation and to bring about a reduction in flood risk if possible.”  The Environment Agency, a statutory consultee, did not object to the proposal but indicated that it would be acceptable only if a Condition were attached to ensure that the development was carried out in accordance with the Flood Risk and Drainage assessment.  Condition 15 was included in the permission following a request by the Environment Agency in its letter of 11 October 2011, though with a slight change of wording which I do not consider material.  In April 2012 the Environment Agency issued a flood risk assessment Guidance Note.  This described the principles of the sustainable drainage of water as seeking to “mimic natural drainage systems and retain water on or near the site in contrast with traditional drainage approaches which tend to pipe water off site as quickly as possible.”  It says that the Environment Agency’s main interests are “ensuring that the design of the site drainage system meets the aims of sustainable drainage management, and does not increase, and where practicable reduces, the current run off from the site.”  What these documents lead to is that an assessment of the background showed what was necessary, and therefore imposed by the Condition, was that the situation be not worsened.  The possibility of improving it was not the subject of the condition.  
I add to this the following points:
(i)	The Flood Risk and Drainage assessment (“FRA”) is a public document, since it was one of the documents which formed part of the application and was referred to in the grant of planning permission.  Also, in the conditions which deal with the flood risk (Conditions 14 – 19), Condition 14 specifically refers to “a surface water drainage scheme, floor and ground levels shall be designed and constructed to comply with the recommendations and conclusions of the FRA…”  In Condition 15, one of  the details incorporated from the FRA was included in the second sentence.  Those are reasons why, if there is ambiguity, the FRA is an appropriate document to which to turn.  The SUDS manual is referred to in paragraph 11 of the Executive Summary and on page 8 of the document.  The SUDS manual in paragraph 1.1 specifically states “the philosophy of SUDS is to replicate, as closely as possible, the natural drainage from a site before development.”
(ii)  There is an earlier reference in paragraph 1.1 of the SUDS manual that sustainable drainage systems are designed “to contribute wherever possible to environmental enhancement.”  This is then qualified by the following sentence “So SUDS objectives are to minimise the impact from the development on the quantity and quality of the run off, and to maximise amenity and bio diversity opportunities.”  This does not suggest improving a pre-existing drainage problem.
(iii)  I have referred earlier in this paragraph to the words in the FRA (page 10) that “it should be a fundamental objective of the finished design not to worsen the existing situation and to bring about a reduction in flood risk if possible.”  I have said that the possibility of reducing the flood risk was not the subject of the Condition.  Page 11 of the document confirms this.  It says “The detailed survey was commenced down stream of this section and, in order to be sure of not worsening the existing situation, proposals have been developed for discharging down stream of the gardens as indicated on the appended schematic drainage layout.” 
24.	I therefore reject Ground 1 as being an arguable ground.
Ground 2
25.	In Mr Wolfe QC’s Skeleton Argument the challenge on this ground is said to arise “from the fact that the Defendant erroneously approached the Interested Party’s scheme as if it did not involve any excavation of the existing water course (which has the potential to change the overland flows on site) when in fact (and not now disputed) there will be excavation.”
26.	It is important not to lose sight of the letter which is challenged, namely that of 28 August 2014.  The relevant section is this:
“The drainage officers were, and are, satisfied that, although there will be a new 12 metre length of culvert within the site, there will be no change to either the quantity of flow or the discharge point.”
27.	It is now said by the Claimant, from D’s letter of 24 September 2014, that D’s decision was based on a material error of fact.  That letter said:
“The approved proposal does not involve the excavation of the existing watercourse to alter its existing alignment or profile up to the point of the new 1200 millimetre diameter culvert you refer to.  That part of the watercourse, and the rest of the watercourse within the site beyond that culvert will not be altered at all, the only work to it being the removal of debris, and the only change in that length being a new culvert under the estate road.”
28.	According to C, D’s drainage officers based their understanding of the situation on drawing 30864/026 Rev.C, whereas drawing 30864/066 Rev.E shows a 2 metre excavation of the watercourse at the head of the culvert.  
29.	In those circumstances, according to C:
(i)	D’s officers acted under a mistake of fact.
(ii)	It is not open for D to justify ex post facto, in the light of the new facts, their decision that “there will be no change to either the quantity of flow or the discharge point” (Nash v Chelsea College [2001] EWHC Admin 538 at paragraph 34).
(iii)	The alleged fresh reasoning by the officer, Mr Norfolk, cannot persuade the court that the decision would inevitably have been the same: see Carlton-Conway v Harrow LBC [2002] EWCA Civ. 927 (paragraphs 26-28); Smith v NE Derbyshire PCT [2006] EWCA Civ. 1291.   
30.	It is important to take a step back and realise that C’s original case was that the alleged increase in the carrying capacity of the watercourse would occur over much of its length. By the amended claim the allegation is that it is only immediately before the culvert.
31.	Mr Fraser QC, for the Defendant, took me through the inter partes correspondence in August and September 2014.  The essence of his submission was:
(i)	The Defendant was aiming at a shifting target.
(ii)	The criticism of the letter of 24 September 2014 is an over legalistic complaint, when that letter was responding to an allegation of much more extensive excavation than some 2 metres at one end of the culvert.
(iii)	In any event, there is nothing to substantiate an arguable case that the flooding risk may be worse as a result.  
32.	Mr Maurici QC, added that the “E” drawing was before D, as can be seen from page 7 (Appendices) in the Eastwood and Partners January 2014 report.
33.	I do not propose to say much more than that there is an arguable case on this ground.  Albeit there is a context to the evolving correspondence, the only drawing specifically referred to as relied on for the “no change to either the quantity of flow or the discharge point was drawing “C”” (email 3 September 2014); further, the email of 24 September 2014 is in terms that the rest of the watercourse beyond the culvert will not be altered “at all…the only change in that length being the new culvert”.  C accepted that if D had said from the outset that they appreciated that there would be a 2m excavation as well and that it would make no difference, then that would have been the end of the matter.  Whether the court can properly accept that that was in fact the position and that C’s criticism is “over legalistic” and out of context seems to me to be the stuff of a substantive, not a permission, hearing.  
The Claimant’s standing.
34.	I finally turn to this issue.  There were initially two statements from Professor Rhodes, dated 24 September 2014 and 24 October 2014.  In the first statement Professor Rhodes says that the Menston Action Group was established in 2010 as a community group established for public benefit and to act as a community voice in relation to two sites within the Menston area proposed for central development.  He says that members of the group are residents of the  Menston area and that he has been authorised by his fellow committee members to bring a claim for judicial review on behalf of the group.  In his second statement he says that the group has a committee with seven members including himself, all of whom are residents of Menston.  All the committee members live within a short distance of the site at Derry Hill, the subject of the claim.  Many of the members of the Claimant live down stream from the site and already suffer from flooding when prolonged rainfall takes place.  
35.	Because the issue of standing was raised by the Defendant and the Interested Party, Professor Rhodes provided a third witness statement dated 9 January 2014 in which he sets out the seven members and their addresses and provides further details in relation to the group.
36.	In the case of Berky v Newport [2012] CMLR 44 paragraphs 1-2 the Court of Appeal said: 
“1….the Claimants were local residents, who also claim to act in the name of a local group known as “Say No to Morrisons Group”…
2. I should note that the legal status and even the membership of the "group", remain obscure, for reasons that have not been satisfactorily explained. However, for the limited purpose of deciding the appeal (and without prejudice to any other issues, for example as to costs), it is enough that Mr Berky has standing to proceed in his own right.”
37.	It is not said that Professor Rhodes brings this claim in his own right.  As to the standing of the group, whilst neither the Defendant nor the Interested Party conceded the point, neither made vigorous submissions that there was insufficient standing, certainly at this stage of the process.  I therefore do not refuse permission on this ground.  

Summary
38.	Permission is refused on Ground 1 and granted on Ground 2.  
39.	I have considered the issue of permission on the basis of arguability.  I was asked by Mr Maurici QC, on behalf of the Interested Party to adopt a higher threshold, namely that the case should be not merely arguable but strong.  The Authority on which he relied was Mass Energy Limited v Birmingham City Council [1994] Env. LR 298.  That threshold was adopted in that case but in its particular circumstances.  There were three factors.  The first was that if leave were granted it was most unlikely that the point would be canvassed in much greater depth or detail at the substantive hearing.  In the instant case I am not necessarily persuaded on this, especially as Mr Fraser QC on behalf of the Defendant did at one stage say that this was only a permission hearing and there may be further issues addressed if there was to be a substantive hearing.  Secondly, in the Mass Energy case, there was a factor which Mr Maurici QC conceded was not present in this case, namely a very considerable public disadvantage if there was to be further delay.  In my judgment, that is something which distinguishes the present case from the Mass Energy case and I do not consider it appropriate to adopt a higher threshold test.