Interpretation of planning condition regarding ‘sustainable drainage principles’


Re: Menston Action Group v City of Bradford Metropolitan District Council [2016] EWCA Civ 796

BDW Trading Ltd, an interested party in proceedings, proposed a development of 173 dwellings. The appellant action group objected to the development on the grounds that it would likely exacerbate the risk of flooding in the area (and in particular of houses downstream from the site). The respondent granted permission to BDW Trading, but among the conditions imposed was condition 15, which stated that development would not begin until a surface water drainage scheme for water passing through the site, based on sustainable drainage principles, had been submitted and approved.

The respondent subsequently approved the scheme submitted, and the appellant brought an unsuccessful judicial review claim against this decision, arguing that the scheme failed to comply with ‘sustainable drainage principles’.

In the present proceedings, the appellant challenged the decision to dismiss its claim for judicial review. It argued that the failure to demonstrate that the potential for reducing existing flooding had been considered meant that it failed to adhere to sustainable drainage principles. The appellant relied on the Flood and Water Management Act 2019, Sch 3, para 2, which had yet to be enacted, and other policy and guidance statements, to support its argument that attempting to reduce flood risks was an important element of “sustainable drainage principles” within the meaning of the condition.

The court rejected the respondent’s contention that the concept of ‘sustainable drainage principles’ was so widely familiar to the reasonable reader that its meaning was obvious. However, it did not believe there was a need to look beyond the terms of the planning permission (as the appellant had contended), the terms of the relevant condition and the other documents explicitly referred to in the planning permission. Condition 15 did not stipulate any improvement of the land drainage or alleviation of existing flooding; or even consideration of the potential of achieving those things. It would have been unlawful had it purported to do so.

The court thus concluded that the drainage scheme was in line with condition 15, and that the respondent had not acted unlawfully in approving it.

David Wolfe QC was involved in this case.