Conditional planning permission — Flood risk affecting site — Permission to develop site containing condition requiring developer to undertake flood-prevention works — Inspector finding condition relating to on-site and off-site flood risks — Appeal allowed
In 1992, conditional planning permission was granted for the development of a site lying within a flood plain. The permission stated that, in order to reduce the “flood risks affecting the site” to an acceptable level, the site developer had to submit a flood-prevention scheme, such scheme to be implemented before the site was developed. The site was subsequently sold to the claimant. In 1997, within five years of the grant of the original consent, work was begun to excavate the foundations, and the claimant applied to vary the terms of the condition so that alternative flood-mitigation schemes, other than the scheme originally approved, could be considered. This application was approved in 1998, and the claimant duly submitted applications for alternative schemes. The local authority refused to register the new applications on the grounds that the works carried out in 1997 were insufficient to implement the outline planning permission, and the applications for the flood-prevention scheme were therefore pointless; or, alternatively, that they failed to address the problem of flooding in neighbouring, but off-site, locations. Both applications were appealed to the Secretary of State for the Environment, and an inquiry was held in 2001. Although the inspector found that the planning permission was still extant, he refused both appeals concerning the flood-prevention scheme, interpreting the condition to mean that the proposals had to relate to both off-site and on-site flood risks. The claimant appealed against that decision on the ground that the inspector’s interpretation of the condition was incorrect.
Held: The appeal was allowed.
It was within the court’s power to interpret planning conditions, as demonstrated by R v Ashford Borough Council, ex parte Shepway District Council [1999] PLCR 12. Planning conditions should be clear and unambiguous and should be capable of being understood without the need to refer to extrinsic evidence, although regard should be had to the express reasons given for the conditions.
The natural and ordinary meaning of the condition relating to the flood risk, taken in conjunction with the expressed reason for its imposition, was that the scheme submitted should relate only to the permission site. Although the local authority maintained that the risk of flooding on off-site areas was one aspect of the flood risks “affecting” the site, and the inspector’s concerns were for those visitors not only on the site but also travelling to the site, sufficiently clear words were not used to identify the off-site areas. The local authority could not impose conditions relating to land outside the claimant’s control when the terms of such a condition were imprecise and unreasonable, such that the claimant would be unable to identify the means by which such a condition could be carried out. The inspector’s decision letter was quashed.
Christopher Katkowski QC (instructed by Osborne Clarke) appeared for the claimant; Timothy Morshead (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendants did not appear and were not represented.
Vivienne Lane, barrister
