Bradford Council consistently ignores our concerns, say campaigners
Will the EFRA Committee’s recommendations on sustainable drainage have any impact on future planning decisions?
June 10th 2017
The House of Commons recently published a report on the Government’s implementation of certain aspects of the Flood and Water Management Act 2010, with a particular focus on sustainable drainage systems (SuDS). The report follows an inquiry by the Environment, Food and Rural Affairs (EFRA) Committee into those aspects of the 2010 Act which have either not been fully implemented or not been implemented at all. 
Summarising progress on achieving SuDS objectives, the report states: “The Government’s policy objective is to ensure that sustainable drainage systems are provided in new major developments where appropriate to minimise surface water contributing to flooding… The Government acknowledges that sustainable drainage schemes can be built and maintained as cost-effectively as traditional drainage.” However, the report continues, submissions to the Committee’s inquiry, almost without exception, concluded that policies were failing to achieve this objective.
The Committee’s inquiry found that too few schemes are being installed in new developments while too many schemes are failing to deliver maximum benefits for biodiversity, water quality and amenity. The Committee recommends a strengthening of the planning system to ensure high-quality schemes are installed in all new developments of more than one property. The report also recommends making technical standards for SuDS construction a statutory requirement, which it says would provide a stronger basis for enforcement.
The report stops short at this stage in calling for the setting up of SuDS Approval Bodies, as outlined in Schedule 3 of the 2010 Act. However, it calls on the incoming Government to demonstrate a significant improvement in the numbers and quality of SuDS schemes installed by the end of 2018, and the Committee issues a note to its successor: “Our successor Committee in the next Parliament may wish to reconsider recommending commencement of Schedule 3 provisions if it is not satisfied that sufficient progress has been made by then.”
Schedule 3 of the Flood and Water Management Act 2010 provides a definition of sustainable drainage. Paragraph 2 states: “‘Sustainable drainage’ means managing rainwater (including snow and other precipitation) with the aim of (a) reducing damage from flooding, (b) improving water quality, (c) protecting and improving the environment, (d) protecting health and safety, and (e) ensuring the stability and durability of drainage systems.” Schedule 3 has not been implemented, the Government having decided that the regulation of SuDS schemes would be more efficiently achieved via the planning system rather than by a parallel system of approval bodies. However, this definition, and the extent to which a sustainable drainage scheme should improve the environment, including the reduction of an existing flood risk, has been the subject of a long-running legal dispute.
West Yorkshire: A legal dispute over sustainable drainage
Proposals to build housing near Menston, a village in West Yorkshire, have been the subject of a long legal battle between local residents and Bradford Council, with sustainable drainage and flooding being the focus of the dispute. The residents held a referendum several years ago on proposals to develop two sites near the village, Derry Hill and Bingley Road. A large majority (98%) voted against the proposals and 2,000 letters of objection were submitted to Bradford Council. Residents argued that both sites suffer from groundwater flooding and claimed that the risk of flooding in the area would be increased by the proposed developments. The claims were supported by an independent expert on flooding, Dr Duncan Reed.  However, in August 2014 Bradford Council awarded planning permission to Barratt Homes to build 173 homes on the Derry Hill site, which prompted residents to take legal action. Events then unfolded as follows.
September 2014: Judicial Review
Law firm Schofield Sweeney begin legal proceedings on behalf of the Menston Action Group, citing two grounds for a judicial review of Bradford Council’s decision regarding Derry Hill. The primary ground is that the “sustainable drainage principles” mentioned in Condition 15 of the Council’s planning conditions require the developer to put forward a drainage scheme that addresses the potential improvement of flooding issues around the Derry Hill site. The lawyers argue that the sustainable drainage scheme proposed by Barratt Homes fails to meet these objectives and therefore the Council’s decision to award planning permission was unlawful. The second ground questions the validity of the procedure adopted by Bradford Council in making its decision.
January 2015: Administrative Court
At the first stage of the judicial review proceedings, the Administrative Court rejects the primary ground for a judicial review of the Derry Hill decision but accepts the second ground for the case to go forward. The lawyers say they will appeal.
April 2015: Court of Appeal reinstates grounds
The lawyers persuade the Court of Appeal to reinstate the primary ground for a judicial review of the Derry Hill decision. The lawyers say: “Residents of Menston are desperately worried that the proposed development at Derry Hill will make flooding in Menston much worse.” They also state that the residents have raised more than £100,000 to fund their legal battle – “a necessity in what has become complex and high profile High Court litigation,” Schofield Sweeney said. Meanwhile, Bradford Council awards planning permission to Chartford Developments to build 12 homes on land at Bingley Road.
July 2015: High Court dismisses claim
The lawyers begin a second legal case against Bradford Council for its decision to award planning permission to Chartford Developments. The primary ground for a judicial review is similar to the claim in relation to Derry Hill and alleges that the Council improperly failed to consider the ability to alleviate existing flooding issues. The second ground alleges that the Council’s Regulatory and Appeals Committee was materially misdirected by Council officers when informed of the water storage proposals for the site. The lawyers say: “Residents have observed standing water on the Bingley Road site – referred to by them as ‘the lake’ – following prolonged rainfall and they are extremely concerned that this site is being developed.”  Meanwhile, later that month, the High Court delivers its verdict on the Derry Hill permission. The judge presiding over the case dismisses the claims of the Action Group, finding in favour of Bradford Council and upholding its decision to approve the drainage scheme submitted in 2014 by Barratt Homes. The lawyers say they will appeal. 
November 2015: Court of Appeal overturns High Court decision
The lawyers win a second victory at the Court of Appeal, which overturns the High Court decision and decides to allow a review of the Derry Hill decision to proceed on all grounds of challenge. The case will be considered by three judges at the Court of Appeal. 
July 2016: “Sustainable drainage principles” are discussed in the Court of Appeal
The Court of Appeal delivers its verdict on the Derry Hill decision. Lord Justice Lindblom explains the background to the case, including the flood risk assessment submitted by Barratt Homes and figures detailing the amount of run-off expected from the development, which the sustainable drainage scheme is designed to manage. Of the 27 planning conditions imposed by Bradford Council, 7 are related to drainage, and the one that forms the focus of the dispute is Condition 15 which includes the phrase “based on sustainable drainage principles.” Acting on behalf of the Action Group, Mr David Wolfe QC draws on Schedule 3 of the Flood Act 2010, which he says contains the only statutory source of a definition of ‘sustainable drainage’ and shows that this concept embraces the aspiration of improvement rather than merely maintaining the status quo. 
However, Lord Justice Lindblom outlines two guiding principles here in forming a judgement. The first: “It is not sufficient that a condition is related to planning objectives: it must also be justified by the nature or impact of the development permitted.” And the second: “A condition cannot be imposed in order to remedy a pre-existing problem or issue not created by the proposed development.” Indeed, the judge states, a planning authority could not lawfully impose such a condition. And in this particular case, Lord Justice Lindblom argues that “whilst the policies and guidance cited by Mr Wolfe contain general references to the desirability of development alleviating existing flooding on adjacent land, they do not make this an obligatory ingredient of a sustainable drainage system provided for a particular proposal.”
Paragraph 31 of the judgement states: “The scheme envisaged under condition 15 is one of practical measures for the drainage of the site, consistent with the proposals in the flood risk assessment, not theoretical measures that will – or may – never be put into effect. This does not mean that the developer may not choose to consider the potential for improving the drainage of neighbouring land and for reducing the existing risk of flooding to adjacent properties – only that condition 15 does not oblige him to do so in the surface water drainage scheme he submits to the council.”
Lord Justice Lindblom dismisses the appeal. Lord Justice Elias and Lord Justice Clarke agree and the case is dismissed.
January 2017: Derry Hill plans shelved
As 2016 draws to a close, the Menston Action Group says that Barratt Homes has missed the October 2016 deadline for commencing work on the Derry Hill site, which means that planning permission for the development has now lapsed. The Group also highlights a story by Ben Webster, Environment Editor for The Times, who says that local councils are being offered “huge bribes” to build on the green belt: Bradford Council is allegedly being offered £95m to build 11,000 homes. Meanwhile, the Action Group says Chartford Developments is well on the way to completing the construction of 11 homes at Bingley Road with a revised drainage scheme which the Group hopes will reduce the risk of flooding. 
June 2017: Another legal battle?
The Menston Action Group says that Bellway Homes is holding a public consultation on proposals to build 135 homes on the Bingley Road site. Local residents are invited to voice their concerns.
Ongoing issues: Groundwater flooding and sustainable drainage
As well as fighting the above legal battles, the Menston Action Group submitted a statement to Bradford Council in February 2015 in response to its Core Strategy plans, which had allocated the Derry Hill and Bingley Road sites in the village for housing development. The statement says that an independent review of flooding problems in the village highlighted specific problems of groundwater flooding which are unique to Menston, an important factor being the prevalence of springs and responsive groundwater from the Millstone Grit aquifer underlying the hillside on which Menston sits. This hillside is drained by a number of small streams, some of which are seasonal, with flows only occurring in wet weather and/or when groundwater levels are unusually high, and the statement went on to say that prolonged rainfall events cause significant flooding in the local area. 
Other parts of West Yorkshire are also susceptible to groundwater flooding. Calderdale Metropolitan Borough Council published a Local Flood Risk Management Strategy in June 2016, which states that the risk of groundwater flooding is high in parts of Brighouse and in the east of Elland. Whilst the strategy document says that the risk of groundwater flooding across Calderdale on the whole is minimal, it also says there could be localised problems in other areas. It also states: “Development within areas susceptible to groundwater flooding will generally not be suited to SuDS and proposals for infiltration drainage but this is dependent on a detailed site investigation and risk assessment.” 
A flood risk assessment was submitted to Bradford Council in the Derry Hill case, which, according to the Court of Appeal ruling, acknowledges that “it should be a fundamental objective of the drainage design not to worsen the existing situation and to bring about a reduction in flood risk if possible.” But, as mentioned above, the Court of Appeal ruled that, while planning policies and guidance “contain general references to the desirability of development alleviating existing flooding on adjacent land, they do not make this an obligatory ingredient of a sustainable drainage system provided for a particular proposal.”
Following the EFRA Committee’s findings that too many SuDS schemes were failing to deliver maximum benefits to the environment, it is interesting to compare the Court of Appeal’s ruling in the Derry Hill case with the Committee’s recommendations. Would a judge arrive at a different ruling if sustainable drainage schemes were obliged to deliver the maximum benefits as recommended by the EFRA Committee’s report, and if future planning policy on SuDS were to incorporate the technical standards as also recommended, including a detailed set of “sustainable drainage principles” for the guidance of local planning authorities with the statutory ability of enforcement?
Campaigners in Menston say that Bradford Council consistently ignores their concerns and the weight of evidence regarding flooding issues, with the suggestion that the prospect of huge funds from the Government is swaying the Council’s decisions. Changes to planning policy may therefore have a limited impact on decision making. In any case, there is little immediate prospect that such changes will be forthcoming: with the UK currently facing a period of political turmoil, rewriting planning policy on SuDS is unlikely to be high on a government agenda. And with all parties promising to build a million or more homes over the next few years, local councils will be under pressure to allocate land for housing developments despite the undesirability or appropriateness of the location, and despite a potential increase to flood risk. It is therefore left to local residents and campaigners to try to ensure that existing regulations are not flouted and scientific evidence is not ignored in this process.
 See our previous article, “Inquiry into SuDS finds ‘sub-standard planning policies’ are leaving communities unnecessarily exposed to flood risk”.
 The sequence of events has been compiled from a number of sources. For the background, see ‘Menston Action Group granted second Judicial Review’, Schofield Sweeney, July 6th 2015, at http://www.schofieldsweeney.co.uk/news-events/news/menston-action-group-given-permission-in-second-judicial-review/. See also ‘Campaigners get appeal judge to reinstate ground of challenge in housing battle’, Local Government Lawyer, April 24th 2015, at http://localgovernmentlawyer.co.uk/index.php?option=com_content&view=article&id=22739:campaigners-get-appeal-judge-to-reinstate-ground-of-challenge-in-housing-battle&catid=1:latest-stories. In addition, the Menston Action Group has a website with a chronology of events and related material at https://menstonactiongroup.wordpress.com/.
 Ibid (‘Menston Action Group granted second Judicial Review’, Schofield Sweeney, July 6th 2015). The outcome of this particular JR is unclear, but subsequent events suggest Chartford Developments submitted a revised plan for drainage which met with approval from local residents and the case was dropped.
 ‘Success for Menston Action Group in the Court of Appeal’, Bradford Telegraph and Argus, November 18th 2015, at http://www.thetelegraphandargus.co.uk/news/14039977.Success_for_Menston_Action_Group_in_the_Court_of_Appeal/.
 Ibid (Note 4). See also ‘Menston Action Group win at Court of Appeal’, Schofield Sweeney, November 16th 2015, at http://www.schofieldsweeney.co.uk/news-events/news/menston-action-group-win-at-court-of-appeal/. The latter item is somewhat confusing, however, as it fails to mention the High Court decision to dismiss the claim in July. This second appeal was against that High Court decision, not, as the item suggests, the Administrative Court decision in January.
 ‘Court of Appeal Judgment – Menston Action Group v City of Bradford Metropolitan District Council’, Case No: C1/2015/2774, Royal Courts of Justice, Strand, London, WC2A 2LL, 28 July 2016. Available as a PDF from Kings Chambers at http://www.kingschambers.com/assets/files/Menston%20Action%20Group%20v%20City%20of%20Bradford%20MDC%20judgment%2028%20July%202016.pdf. Note that legal documents usually spell ‘judgement’ as ‘judgment’. For consistency, the former spelling is used in this article.
 For these accounts, and news of the latest developments, see the Menston Action Group website at https://menstonactiongroup.wordpress.com/.
 Bradford Core Strategy Examination, ‘Statement relating to Flooding Problems in Menston’, February 2015. Available as a PDF from https://www.bradford.gov.uk/Documents/planningStrategy/7%20Examination%5C05%20Documents%20submitted%20by%20other%20parties%20-%20further%20statements%5C/PS%20D028a%20-%20Further%20statement%20matter%207D%20(EN7)%20from%20Menston%20Action%20Group%20376.pdf.
 Calderdale Metropolitan Borough Council, Local Flood Risk Management Strategy, June 2016. Available as a PDF from https://www.calderdale.gov.uk/environment/flooding/Calderdale-Flood-Strategy-June-2016.pdf.
Photograph: Groundwater flooding in Menston, West Yorkshire, one of a set of photographs taken by local residents and submitted to Bradford Council by the Menston Action Group. Local residents have submitted a body of evidence to the Council to support claims that the development of sites allocated for housing in the village will increase the risk of flooding, but the Menston Action Group says that the Council consistently ignores their concerns. See Note 8 and also the Menston Action Group website at https://menstonactiongroup.wordpress.com/.