Success for a S.73 Appeal at Linton, Cambridgeshire
IPS were pleased to secure success for our clients Abbey Developments Ltd for a section 73 appeal to secure a preferred foul drainage route and connection at a site in Linton, Cambridgeshire.
IPS have reported on previous appeals at this site in Linton. The construction of the site commenced in November 2021, and is nearing completion and ready for occupation. IPS submitted an application to vary condition 11 of the approval under reference S/1963/15/OL in February 2021. This minor amendment to the conditional wording (via a s.73 application), proposed to regularise the final foul water drainage design for the site, which had been confirmed as acceptable by the statutory sewerage undertaker, Anglian Water. Since the grant of outline permission, the provisions of Section 143 of the Water Industry Act 1991 (as amended), came into effect from 1st April 2018 when important changes were been made to the charging arrangements for services provided by sewerage undertakers to those developing land and laying new water and sewerage infrastructure. In terms of wastewater connections, from 1st April 2018, the developer is entitled to make a connection to the nearest practical point on the network where the existing sewer is at least the same diameter as the new sewer required to provide capacity for the development. The proposed revised connection point represents a closer and practical solution to foul water drainage in accordance with the recent changes to legislation.
The application was refused by the SCDC Planning Committee, against the recommendation of the Joint Director for Planning and Economic Development, and notwithstanding the lack of any technical objection from Anglian Water or indeed other technically competent consultee. This decision was heavily influenced by the Parish Council who have consistently objected to the proposals on the site and all applications submitted at every stage in the planning process. The decision notice stated that the applicant had failed to demonstrate that the alternative connection would be suitable and would fail to reduce the risk of pollution to the water environment. However, there was no substantive evidence presented at the appeal which demonstrated that the proposed alternative points of connection would be technically deficient and unacceptable. The refusal of this application by the authority was entirely arbitrary, unjustified and was not supported by the relevant technical consultee, the Officer’s report or any substantive evidence.
This site has been the subject of numerous appeal submissions and there had been substantial delays in the decision-making process, despite the proactive approach of the Applicant and IPS. This further refusal of s.73 variation represented further frustration for the appellant in delivering homes for the local community which were under construction, some nearing completion but unable to be occupied without the required foul drainage connection.
An appeal against this decision was submitted in November 2021, however due to further delays it wasn’t until April 2023 that a hearing took place to consider the proposals. Much stall on the application has been placed on a surface water flood event in July 2021, which resulted in an initial pause being placed on the determination of planning applications in Linton. This caused widespread flooding across the village and understandably caused considerable upset and significantly affected several households. Despite the reasons for the flood event being the subject of extensive investigation by the relevant statutory authorities, the public interest in the appeal was thus considered to warrant a public hearing event. Nevertheless, the investigation concluded that the event was highly unusual due to specific factors that included the highest ever recorded rainfall in Linton falling onto dry ground.
At the hearing the District Council failed to rebut the evidenced presented by the Appellant. The case was reliant on the representations made by the Parish Council and a technically flawed report which had not been formally consulted on at the time that the outline permission was granted. Both the Council and Parish failed to provide technically up to date, competent, and robust evidence that the evidence of the Appellant, demonstrating a secure connection with adequate capacity in the foul sewerage network, was incorrect.
Furthermore, Anglian Water, the statutory undertaker, had consistently confirmed that it would have no objection to the proposed connection at all stages of the consultation process. Council failed to produce adequate evidence to substantiate its reason for refusal that the sewer system lacks capacity to accommodate the wastewater flows from the proposed development, and the Inspector concluded that the evidence before him indicated that the sewer system was appropriate and the variation would not harmfully increase the risk of flooding. The appeal was found to be in accordance with the development plan and subsequently allowed.
The appellant considered that the refusal of the application was completely unjustified as concerns raised in relation to the means of foul sewage connection by and on behalf of the Parish Council had all been fully investigated and then addressed by the technically competent statutory undertaker (Anglian Water) in advice provided to the Authority. Notwithstanding that clear and favourable advice from the Water Authority’s officer, together with that of the Local Planning Authority’s Case Officer, the Committee chose to reject the recommendation preferring to accept objections from and on behalf of the Parish Council which had no sound technical basis. The delays which this had thus caused the Appellant were substantial, over 2 years, and had stalled the delivery of much needed homes.
During the appeal process the Authority made no attempt to seek the advice of either its own or from and independent drainage engineer in order to substantiate with technical evidence, justification for denying the alternative points of foul sewer connection as proposed and thus demonstrating why this would be unacceptable. The appellant submitted an application for full costs and the Inspector agreed that the Council has failed to produce adequate evidence to substantiate its reason for refusal that the sewer system lacks capacity to accommodate the wastewater flows from the proposed development and thus unreasonable behaviour had occurred. He concluded:
‘In effect, the Council relied on a report with a flawed methodology. These flaws had been drawn to its attention before the committee meeting and subsequently. However, the methodological flaws have not been substantively addressed in its appeal evidence with a technical rebuttal. As a result, there is no reasonable basis for the Council to depart from AW’s technical and specialist advice that the sewer system has capacity in dry weather conditions. The Council also sought to rely on LPC making the case against the proposal, but that is unreasonable when it is the local planning authority that made the decision.’
Whilst we are pleased that our client can now make the preferred foul drainage connection and the dwellings be occupied, this application was forced to appeal with resultant unnecessary delay and associated wasted expenditure. There is growing concern regarding the number of applications which are determined by committee members, against officer recommendation, and unable to be backed by Officers at appeal with technical justification and evidence. This rise in unsound decision making and unfair delays has resulted in proposals to review the number of committee decisions subsequently allowed at appeal which arose from the Increasing planning fees and performance: technical consultation in February 2023 and the need to improve the quality of the local authority planning service by monitoring more performance measures. With proposals for a robust performance regime on the horizon, we hope that this can result towards progress working effectively to make robust decisions.
Appeal Ref: APP/W0530/W/21/3287502
Land to the North and South of Bartlow Road, Linton, Cambridgeshire CB21 4LY
