Town and Country Planning Act 1971–Appeal from decision of Secretary of State upholding refusal of planning permission–Refusal on ground of problem of surface water drainage and danger of flooding of brook receiving the discharge–Appellants and adjoining owners proposed to contribute to a scheme for the improvement of the brook and also to construct a balancing lagoon–Owing to adjoining owners going into liquidation improvement scheme lapsed–Secretary of State should have considered the provision of a balancing lagoon by appellants alone as a permanent solution–Decision accordingly quashed
This was an
application by George Wimpey & Co Ltd to quash a decision of the Secretary
of State for the Environment upholding the refusal of the Teignbridge District
Council to grant planning permission for the development of about 11 acres of
land at Dawlish owned by the appellants.
Alistair
Dawson QC and John Furber (instructed by Mr P J Ward) for the appellants; Harry
Woolf (instructed by the Treasury Solicitor) for the Secretary of State.
Giving
judgment, SIR DOUGLAS FRANK QC said that adjoining the appellants’ land was an
area of about 32 acres not owned by them, but which was also the subject of a
refusal of planning permission on similar grounds as in the appellants’ case,
and at about the same time. Accordingly at a public inquiry the two appeals
were heard together. There were two grounds of refusal, one being agricultural,
but in the event that did not prevail so his Lordship would say no more about
it. The second related to surface water drainage and in particular it was said
that the development of the sites, which his Lordship called site A and site B
respectively, would be likely to add to the risk of flooding in Shutterton
Brook, into which water from the two sites drained. The local authority and the
water authority were anxious to improve the brook and the two applicants were
willing to make a contribution of an agreed proportion of the cost. At the
inquiry the appellants produced an undertaking under seal to that effect and
also to construct a balancing lagoon. The owners of site B expressed their
intention to enter into an agreement under section 52 of the Act of 1971 to
cover their contribution to the cost of the works of improvement. The inspector
recommended that, provided the offers concerning the improvement of Shutterton
Brook were secured, both appeals should be allowed subject to conditions. In
the event the owners of the 32-acre site (site B) went into liquidation and, no
section 52 agreement having been made, on March 25 1976 the Secretary of State
issued his decision letter dismissing the appeals. That decision was by consent
quashed by the court for reasons which are no longer relevant. There was then
further correspondence and on January 23 1978 the Secretary of State issued his
second decision (which related only to site A) and again he dismissed the
appeal. In his decision letter he said:
It is
considered that the development of site A would be premature in the absence of
any undertaking in respect of the remaining major share of the costs of these
improvements. While the provision of a balancing lagoon would provide an
acceptable interim solution in circumstances where a more permanent solution in
the form of improvements to Shutterton Brook was assured, because of the
advantage to be gained from an early start on house building, it would be wrong
to allow development to proceed in the absence of such an assurance.
Mr Woolf
conceded that the Secretary of State, in arriving at his decision, did not
consider whether the proposal for a balancing lagoon would have been acceptable
as a permanent solution to the problem of surface water drainage. He said that
the balancing lagoon was introduced only as a temporary expedient pending the
improvement of the brook. It seemed to his Lordship that the crucial question
was whether the Secretary of State erred in that respect. It is undoubtedly true
that it was in the contemplation of all the parties at the inquiry that the
works of improvement to the brook would be carried out. The inspector reported
the appellants’ case on this matter in this way:
The balancing
lagoon would be built to accommodate a ‘once in thirty years’ storm as required
by the Water Authority. A restricted outlet would ensure that the maximum rate
of run-off, 101.4 cumins (mean rate 72 cumins) would be less than half the
maximum rate produced from the undeveloped land, which is estimated to be 251
cumins. . . . The Water Authority acknow-
discharge at times of flood will be difficult to measure.
The water
authority did not apparently materially dissent from those propositions nor did
the inspector in his conclusions. It seemed to his Lordship to be inherent in
the passage quoted that the appellants were contending that, given the
balancing lagoon, not only would the development not increase the risk of
flooding but indeed would reduce it. Having regard to the total contribution
required for the improvement scheme, it was inconceivable that the appellants
would have suggested such a scheme but for the fact that their application was
being considered jointly with the application for site B. Thus, but for site B
the inquiry would have related only to site A and presumably the only question
so far as surface water was concerned would have been whether the problem could
have been solved by a balancing lagoon. The improvement scheme having become
discounted by the Secretary of State, he should then have considered the
application for permission for site A on its own and in doing so he would have
been bound to have considered whether the balancing lagoon should have been
accepted as a permanent solution.
His Lordship
went on: ‘I can understand why he acted in the way he did because of the manner
in which the case was presented to him and because of the ensuing
correspondence. However, it does seem to me that in the correspondence
immediately preceding his second decision the appellants asserted that their
land could be developed alone on the basis of their undertaking to provide a
balancing lagoon, although I think the appellants would have been well advised
to have accepted his offer to re-open the inquiry. However, in my judgment for
the reasons I have indicated, the decision should be quashed. I must mention
that I have quashed the decision on a ground not apparently set out in the
notice of motion and not in the forefront of Mr Dawson’s arguments. I am not of
the opinion that the decision should be quashed on any of those other grounds
but I mention them in case, if the matter should go further, the appellants
should be prevented in raising them again.’
The Secretary of State’s decision was quashed.