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Mendip DC has failed in a court of appeal challenge over the level of flood prevention works a developer is require...
Mendip DC has failed in a court of appeal challenge over the level of flood prevention works a developer is required to carry out before a supermarket store can be built in Frome.

The council had challenged a high court decision last May in which Mr justice Sullivan ruled that developer Carter Commercial Developments Ltd (In Administration) only had to take measures to prevent flooding on the site on which it plans to build the store, and was not required to carry out off-site works on an access road that is also liable to flooding.

But today, dismissing the council's appeal, Lord justice Buxton ruled that

that was the 'natural meaning' of an outline planning permission for the

scheme granted to Safeway in August 1992, before Carter Commercial bought

the land.

The case centred on plans to build the store, together with coffee shop,

petrol filling station, car park and highway works, on land at Wallbridge,


Because the site is prone to flooding, as it lies in the flood plain of the

Rodden Brook, a tributary of the River Frome, the permission required that

flood prevention works had to be carried out before the retail store could

be opened for trading.

The condition in the permission required that 'flood risks affecting the

site are reduced to an acceptable level permitting development on the site

without causing flooding elsewhere to the detriment of land and property.'

However, when Carter submitted its planning application to carry out the

flood prevention works, Mendip DC refused permission on the basis that the outline planning permission had run out.

Although the government planning inspector who heard Carter's appeal against that decision disagreed with the council and found that the outline permission was still in force, he nevertheless refused permission on the ground that the flood prevention provisions were not extensive enough.

Carter challenged that decision in the high court, where the key dispute between the parties was what 'flood risks affecting the site' actually meant.

Carter claimed that all it had to do was to prevent flood risks on the site itself without causing flooding elsewhere, but the secretary of state for transport, local government and the regions argued that his planning inspector had been right to find that the developer also had to prevent flood risks on the A362, in particular at the Rodden Road junction between Rodden Road and Wallbridge that would serve the future store.

However, Mr justice Sullivan found in favour of Carter, quashed the planning inspector's decision, and sent the matter back to the secretary of state to be reconsidered in the light of his findings.

He said that, on its true construction, the condition only applied to

flooding of the application site. Were it to require off site works, he

said, the obligation ought to have been imposed in 'the clearest of terms'.

He said it was 'trite law' that a condition imposed on a planning permission had to be precise, reasonable and necessary.

Challenging the judge's decision in the court of appeal, Christopher Lockhart-Mummery for Mendip DC, which pursued the appeal after the secretary of state dropped objections to the judge's findings, said the implication of the judge's ruling on the scope of the flood prevention condition in the planning permission was that it 'prevented the decision maker from treating the safety of visitors to the store as a material consideration, except to the extent that on site safety is concerned'.

'That is a startling proposition', he said.

However, Lord justice Buxton, Lord justice Ward and Lady justice Arden today dismissed the council's appeal, ruling that Mr justice Sullivan had been entitled to find as he did.

Lord justice Buxton said that the more natural meaning of the council's

condition was that it referred only to the prevention of flooding on the

site of the proposed supermarket itself.


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