In a remarkable planning application case at WLBC Planning Committee last night, developers L & C Developments (Southport) Ltd proposed a Variation of Condition No. 2 of planning permission 2017/0891/FUL relating to the layout of the development to allow for amended house types to incorporate garages and porches. The summary stated “This is an application to vary condition number 2 of planning permission 2017/0891/FUL relating to the layout of the development to allow for amended house types to incorporate garages and porches. The proposed design, layout and appearance is considered to be acceptable. Satisfactory interface distances have been achieved in order to protect neighbouring residential amenity and adequate parking has been provided. The proposed drainage details and landscaping proposals are considered to be acceptable. Therefore, I consider the proposal complies with the relevant policies of the Local Plan”. All cut and dried then?
But the impact on drainage has always been a major issue. Nevertheless WLBC stated “The updated drainage strategy for this site has been assessed by the Council’s Drainage Engineer and he raises no objections and is of the opinion that it satisfies technical requirements. I am satisfied that the principle of an acceptable drainage scheme has been provided and subject to the imposition of a suitable condition, the proposed scheme complies with the requirements of Policy GN3 in the Local Plan”.
The satisfaction of the Council Drainage Engineer did not last long when Halsall Parish Councillor Neil Campbell explained the Riparian Rights of local residents as owners of Sandy Brook who could, and would, deny developers any legal, illegal, licenced, or unlicenced connection for any additional surface water outflow for a housing development, other than “flood flow”.
Granting the change of planning conditions was seemingly pointless. What would have been a straight forward grant was torpedoed by HPC Cllr Campbell. The owner of land abutting a natural watercourse, be it a river, stream or ditch (a riparian owner), has the benefit of a number of additional rights which have been established over time at common law. Such rights may not appear on the Land Registry title to the land and will automatically pass on a conveyance of the land in question meaning that future owners will take the benefit of them without any need for express assignment of the right. In addition to obtaining the benefit of these riparian rights, a riparian owner also assumes certain responsibilities; including an obligation not to interfere with the riparian rights of other upstream and downstream land owners, who will have a right of action should their rights be interfered with.
It is reported that some people attending the meeting became pale and others a bit puce, as officers held hurried conversations, observed with a hand over the microphone to the left of the Chairs position. WLBC Cllr Nicola Pryce Roberts is reported to have asked some specific targeted questions regarding the surface water issues on this site which doesn’t flow away naturally but needs pumping otherwise the area turns into a bog!
It was then disclosed that Riparian owners’ representative have been in contact with the Environment Agency and United Utilities regarding two surface water outfalls, one of which was polluting the brook with foul waste. Having been reported, investigations were ongoing with enforcement action authorised by the Riparian owners to act on their behalf.
Councillors and senior planning officials struggled to put the change of conditions vote on track but it was evident that the planning application had serious issues to overcome to achieve a successful completion. No doubt there will be some serious head scratching and discussion within various departments within West Lancashire Borough Council.
In summary, the “Collective Riparian owners of the watercourse drainage ditch known as Sandy Brook, starting at No 2, New Cut Close, Halsall, and running behind properties of Guildford Road, Birkdale, Sefton, have formally refused any individual, developer, or company any rights of access or permission to allow any additional surface water discharge from any adjacent land or dwellings to flow through their section of said brook; that no permission shall be granted for any licenced, unlicensed or unauthorised connection of any surface water drain or similar type of outfall connection; that furthermore, any breech or failure to adhere to this collective refusal shall be reported to the Environment Agency, LLFA (Lancashire County Council), United Utilities, and the full support of the joint Riparian owners shall be given to all involved agencies, in the pursuit of legal enforcement action or any other measures required to protect this section of Sandy Brook.
“The collective Riparian owners’ wish to point out two water outlet connections which we believe have no permission nor are licensed with the Environment Agency, UU or the LLFA. First is a connection at the start of Sandy Brook, which is to the side of the property of No 2 New Cut Close. During heavy rainfall, raw sewerage, paper and wet wipes flow into the Brook and subsequently pollutes the watercourse. This has been reported to the Environment Agency on the 14th July 2018 (EA ref No 1632698) and United Utilities. Similar sewerage pollution issues have been reported to United Utilities over the last few months.
“The second suspected illegal watercourse outlet connection is situated to the rear of No 321 / 323 Guildford Road and No 2 New Cut Close on the far side of the Brook. It is suspected this is an unauthorised and or unlicensed outlet connection to the x10 dwelling development at No 14A New Cut Lane, Halsall.
“The collective of Riparian owners have serious concerns of the water quality and potential pollution risks, health, wildlife, environment and our risk management responsibilities under the Flood Water Management Act 2010 in association with the Water Framework Directive. The Riparian owners’ have no knowledge of who may have created these connections, give no authority and deny permission to these connections to Sandy Brook nor give any permission to discharge additional water flow through their respective Riparian sections.
“We as a collective, give the Environment Agency, the LLFA (Lancashire County Council) and United Utilities our full permission to investigate the sources of the suspected illegal connections and take the appropriate enforcement action to either remove or block off any water outlet that is or has the potential to discharge into Sandy Brook to prevent further localised flooding or additional water pollution”.
You can’t get much more screwed than that?
NB Cllr John Hodson wishes it to be known that “For clarification, this is not an unusual situation, it being a matter of differentiating between Planning Law and Civil Law. It is regularly the case that something which is allowed under Planning Law subsequently has to reach an agreement between interested parties in order to be able to proceed, as is the case in this example. The drainage issue was not in any way under consideration at Planning Committee, the application being one to vary the Conditions laid previously. Planning Committee Members have a duty to consider the application before them, judged on its own merits in Planning terms. This the Committee did.
Cllr. JE Hodson. Portfolio for Planning WLBC”