England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Justice Sullivan)

		Royal Courts of Justice Strand London WC2
		4th December 2002

LORD JUSTICE WARD:I will ask Lord Justice Buxton to give the first judgment.

LORD JUSTICE BUXTON:

1. This is an appeal from a decision of Mr Justice Sullivan that effectively was a decision on the proper construction of a condition in a planning permission.
2. Before the judge the protagonists were the developer, Carter Commercial Developments Limited (who were represented before him, as before us, by Mr Katkowski QC) and the Secretary of State for the Environment. The local authority, Mendip District Council, were not represented before the judge, although they had played a full part in an earlier planning inquiry in relation to the decision of the inspector on the condition with which the judge was concerned (being then, as now, represented by Mr Lockhart Mummery QC).
3. The judge determined the matter before him according to the submissions made to him by the developer, but he gave the Secretary of State permission to appeal on this construction question. The Secretary of State in the event did not avail himself of that permission and therefore the District Council stepped into the breach. They were given permission to appeal to this Court, albeit on somewhat different grounds from those that had caused Mr Justice Sullivan to give permission, and they, as I have said, have appeared before us today.
4. The background to the issue before the judge, and the way in which the condition developed and the circumstances of it, are set out by the judge in terms that I cannot improve on in paragraphs 1 to 17 of his judgment. Therefore, in the interests of economy, and certainly in the interests of my not giving an inaccurate account of those matters, I will simply annex to this judgment those paragraphs 1 to 17, and this judgment is given in the context of them.
5. I repeat the judge's paragraph 17:

"The issue before me is whether the Inspector was entitled, on a proper interpretation of Condition 04, to require the complainant to resolve the flooding problem on the A362."

6. It is not in issue before us (though we have been taken to some authority relating to the matter) that it is open to a local authority to require the performance of works off site (that is to say, outside the permission site) as a condition of granting planning permission. The question in this case is whether, on its true construction, the condition as it now stands does in fact require the developer to resolve the flooding problem on the A362, which is away from the development site.
7. If we turn to the original form of the condition set out by the learned judge in paragraph 5 of his judgment, it seems clear that, had that condition remained in that original form, everything that was recommended by, and identified in, what I will call the Lewin Fryer report could have been required of the developer. But that is not the condition that we have to construe. The condition that we have to construe is that condition as amended and as set out in paragraph 12 of the learned judge's judgment. In my view that condition is most easily understood by concentrating on the word "or" that is to be found in the fourth line thereof. It reads, therefore, as follows:

"Before the store permitted under the planning permission is first opened for trading the flood prevention works identified in [(1) the Lewin Fryer report] or [2] such other scheme as may be prepared and submitted for the purposes of flood prevention, shall be completed in accordance with details to be submitted to and approved in writing by the Local Planning Authority."

8. I understood that, when my Lord, Lord Justice Ward, formulated that reading of the condition in the course of argument, Mr Lockhart Mummery did not dissent from that being the correct way of looking at the matter. If that is so, there seems to me to be considerable difficulty in arguing that the previous history of the matter, or the previous state of the condition, requires a continued reference, even in looking at the second part of the condition, to the matters addressed in the Lewin Fryer report. First, that report had, by the amendment, in my view been abandoned as a source of any necessary obligation. Secondly, on that argument I can see no logical reason for distinguishing between the different parts of the Lewin Fryer report that still remain obligatory: so the argument that one has still to revert back to Lewin Fryer reintroduces that report as a required benchmark (and I take that formulation from paragraph 40 of the appellant's skeleton before this court), despite the obligatory nature of the Lewin Fryer report having been omitted from the condition, as I understand by agreement of the local authority.
9. To look forward to an argument that I will have to address in due course, the contention of the appellant in this court as to why the works to resolve the flooding problem on the A362 remained obligatory (that is to say, the safety of persons coming to the site) was very properly agreed -indeed, asserted - by Mr Lockhart Mummery not to be found in any argumentation or reasoning in the Lewin Fryer report.
10. With those preliminary observations, I turn to the construction of the clause. We are concerned with part 2, because it is under that part that the works to alleviate the flooding problem on the A362 are said to be required.
11. The phrase "for the purposes of flood prevention" is in my view arguably ambiguous as between the prevention of flooding on the appeal site and the prevention of flooding off the site. But the more literal meaning, as it would seem to me, is the prevention of flooding on the site itself. I do not accept Mr Lockhart Mummery's argument that one understands the meaning of the phrase "flood prevention" in part two by reference back to "flood prevention works" in part one of the condition. That is, first, because of what might be described as the decoupling of the developers' obligation from the Lewin Fryer obligations by the form of the new condition; and secondly, because the specific reference in the first part of the clause is to "works" - flood prevention works - not to objectives or undertakings in respect of flood prevention itself. The concentration is on the works, not on the reason for them. The "works" in Lewin Fryer are different from those now proposed by the developer.
12. If, however, there is any doubt on this point, one must go on and look at the statement of reasons attached to the permission. As Mr Katkowski reminded us, a statement of reasons is not simply something that the local authority puts in out of goodwill, though no doubt local authorities would normally wish to do that in any event. It is required of them by article 22(1)(a) of the Town and Country Planning General Development Procedure Order of 1995.
13. Further, although I have to come to the reason only after looking at the condition, in his judgment in R v Ashford Borough Council, ex parte Shepway District Council [1999] PLCR 12 at p.19C, Keene J (as he then was) stated that the general rule was that regard could only be had to the planning permission itself, including the conditions on it and the express reasons for those conditions, and he treated those together. That was a passage that Mr Lockhart Mummery quoted to us with approval and adopted.
14. In looking at the reason given, I of course accept that the site with which we are concerned is to be taken as the site developed as a food store in accordance with the permission. The expression "flood risks affecting the site are reduced to an acceptable level permitting development on the site without causing flooding elsewhere" must, in my view, be read as a whole. So read, "risks affecting the site" must mean "risks on the site", because it was only such risks that could cause flooding "elsewhere". Mr Lockhart Mummery argued that one had to look at the reason, as it were, in two bites. The first part, "flood risks affecting the site", could refer to risks elsewhere. The second part, referring to permitting development on the site without causing flooding elsewhere, did indeed refer only to development and flooding on the site. I do not think that there is any justification at all for reading that reason in that way. It would have to be formulated in a greatly different form if it were to address those two different considerations. The whole of this reason, in my judgement, is concerned with the prevention of causing flooding elsewhere.
15. I say, by way of footnote, that I do not think that argument is affected in either direction by the addition at the end of the submission of the words "to the detriment of land and property", which we were reminded were added by the Council when the new part of the condition was inserted. They seem to me not to add anything to the effect of the previous objective of preventing the causation of flooding in those places.
16. Those considerations in respect of the construction of the condition are in my view reinforced when one tries to apply the words of the reason to the works at the Rodden Road junction. First, reduction of flood risks is not an end in itself, but is in order to permit development without causing flooding off site. But the resolution of the Rodden Road problem does not, and is not necessary in order to, permit the development of the site to go forward without causing flooding elsewhere. As I believe the inspector to have found (and if he did not find, it stands out as being the case), the Rodden Road works do not and cannot affect the impact of the development on off-site flooding.
17. Second, I do not accept the argument that flooding at Rodden Road "affects the site" because it causes, or may cause, danger to people coming to the site. That danger affects the customers, but it is very difficult to see that it affects the site. True it is that the danger is related to, and arises in the context of, use of the site, but at least the context of danger, as opposed to the disinclination of customers to attend, does not seem to me to affect the site itself. Even if that view is incorrect or, even worse, pedantic, reduction of danger to people coming to the site is not relevant to permitting development without causing flooding elsewhere.
18. This argument, it will be seen, and as I have already indicated, departs from anything that is in the Lewin Fryer report and cannot be justified on the basis of what appears to be the principal argument for the appellant: that is to say, that everything was to be looked at still in the context of Lewin Fryer. Safety of pedestrians is certainly not a prime consideration in the Lewin Fryer report and is not easy to get out of it at all. That is no criticism of Lewin Fryer. They were not employed to address that particular issue. They are not traffic planning consultants. They were employed to look at the hydrological flooding aspects of the site generally.
19. Nor do I accept the argument that safety considerations are introduced by the use at the beginning of the condition of the words "Before the store ... is first opened for trading". Mr Lockhart Mummery said that the fact that this condition was related to opening for trading made clear that the concern was not simply about the building but about the trading activity: that is to say, the people coming to buy goods. I think that is far too optimistic a contention. The words "first opened for trading" seem to me simply to be a standard form of condition making sure that trade does not occur, and therefore no profitable use is made of the site, until everything that the local authority requires is properly in place.
20. It is of course correct that the authors of the original form of the condition thought, or appeared to think, that the proposals in the Lewin Fryer report which were for off-site works were relevant to the achievement of the condition's objects; which might therefore be argued, as a matter of construction, to extend to off-site works. But the authors were (with their agreement, as it seems to me) disabused of that by the submissions that led to the removal of Lewin Fryer as a required test.
21. I quite accept that the original form of the condition and its reason, to put it at its lowest, raised some difficulties. It appears to have been thought originally that the whole of the Lewin Fryer requirements as to extensive works off site, and extensive flood prevention works off site, were relevant to ensuring, and presumably required, "to ensure that flood risks affecting the site were reduced to an acceptable level". It was thought, therefore, that Lewin Fryer achieved that objective. But, by agreeing to the amendment of the condition with the reason for it unchanged, the authors of the condition then accepted that the objectives set out in the reason could be achieved by other means. The failure significantly to amend the reason does not indicate that the method originally seen as achieving the reason remains as the only method; or, indeed, that it is relevant to the way in which the matter can be achieved under the second part of the condition.
22. I am to some extent fortified in that by the explanation in the Lewin Fryer report itself of the reason for their being asked to do their appraisal, which is set out in paragraph 2.7(a) of their report as follows:

"This appraisal has been required to address the NRA [National River Authority] objections which are on two basic grounds

(a)The site is subject to regular flooding and works to the satisfaction of the NRA will be required both on site and off site to ensure the development does not flood, and that there are no adverse effects on downstream or upstream interests from the development or the disposal of surface water from site."

The second reason was so that the NRA could, as I understand it within that context, fulfil its statutory duties as to water conservation and treatment of waterways.

23. That reason, in my judgement, is some indication that the Lewin Fryer works were originally seen as serving the end that I have just outlined. It does not mean to say that they were the only way of serving that end or that the Council was not able to, and did not, accept that different works could be achieved for that purpose, as is demonstrated by the insertion of the second part of the condition in its amended form. Once we get to that stage, we then have to construe, first of all, the question of flood prevention and, secondly, whether the flood risks affecting the site as set out in the reason encompass alterations and preventive works at the A362 junction. For the reasons that I have indicated, I am clear that they do not.
24. The judge reached that conclusion largely on the grounds that I have already set out. In my view he was also correct to support this construction by pointing out the unacceptable vagueness that would be produced by reading, as the Council urged him to, the words "affecting the site" as meaning affecting people coming to the site. That, if it refers not only to customers but also to suppliers, could extend very widely, and well beyond the A362 junction or beyond any works directly associated with the site. So to say is not to fall back on criticism of the condition itself in terms of imprecision. The judge's observations at that point, and my observations at that point, are only directed to the construction urged by the Council of the words "affecting the site": which, in his view and mine, cannot, within the reasonable ambit of the planning condition, have the wide meaning that the local authority would seek to put on it.
25. Finally, like the judge, I cannot accept the Council's arguments (adopting those of the Secretary of State before him) that the construction favoured by the judge, excluding what one might call the safety argument, could lead to absurdity. Various situations were posited which it would be highly desirable to have a condition to prevent: for instance, the entire surrounding of the site by flood water, making it impenetrable for emergency services, and so on. It was open to the Council to impose specific conditions involving off-site works that met any or all of the threats suggested; but that is what the Council did not do. In my judgement it cannot rely in substitution, in order to meet those necessary ends, on a generally worded condition such as this one, directed at a completely different object.
26. I would dismiss this appeal.

LADY JUSTICE ARDEN:

27. I start from the position that this planning permission is not to be construed like a commercial document, but is to be given the meaning that a reasonable reader would give to it, having available to him only the permission, the variation, the application form and the Lewin Fryer report referred to in condition 4 in the planning permission itself. I start from that approach on the basis of the propositions contained in R v Ashford Borough Council, ex parte Shepway District Council [1999] PLCR 12 at 19, paras (1), (2), (3) and (4). Those paragraphs make it clear that there are very strict limitations on the extrinsic material that can be used in construing an application, including a permission, but none of the documents to which I have referred, in my judgment, constitute extrinsic material which, as Keene J said at proposition (4) in that case, should only be referred to if there is an ambiguity in the wording of the provision.
28. The reasonable reader for this purpose is to be contrasted with, for instance, the testator into whose armchair the court is enjoined to place itself in order to construe a will, or the position of parties to a commercial contract from whose standpoint the court will construe a commercial contract having regard to all the background information reasonably available to them. This is a public document, to which very different principles apply. Unfortunately, the reasonable reader of this permission would not have had available to him to assist him the submissions of the two counsel experienced in the field who have appeared today on this appeal, or the judgment of the judge, who is also very experienced in this field, and I would express my debt to all of them.
29. To deal with a minor point and to get it out of the way, there were certain words added to the permission in 1998, namely "to the detriment of land and property". To my mind, they have a marginal impact on the construction of this permission and in that I agree with Buxton LJ.
30. Turning to the substantive part of the case, there is, as I see it, a strong argument to support Mr Lockhart Mummery's construction. The original condition which required flood prevention works by reference to the Lewin Fryer report was not, in my judgment, so imprecise as to be void for uncertainty since the works were identified in that report themselves and that report was never challenged. The flood prevention works referred to in the original permission could be identified by reference to that report and in that way condition 4 would be made certain. Condition 4 was varied in 1998 and we have to construe the new condition 4 as a new permission. Thus, the argument would run that it would be absurd (although Mr Lockhart Mummery did not put it that high) to suppose that the alternative option that was being introduced in 1998 would enable the developer to do something which was substantially less onerous than the first option which he was given. The words "for the purposes of flood prevention", qualifying the alternative option available to him following the variation, would be shorthand for the flood prevention risks identified in the Lewin Fryer report. Moreover, although Mr Lockhart Mummery submitted that the new scheme could go beyond the Lewin Fryer works, in my judgment it would not be right for the Council to require a developer to go beyond the Lewin Fryer report. It seems to me that the permission could only require an alternative scheme which went no wider than the Lewin Fryer report. On that basis, the alternative way of complying with the condition - the alternative option - would have to cover matters affecting the site, but the flood prevention works would be so limited. It is not unreasonable to read the words "flood prevention works" in lines 2 and 3 as being works affecting the site, or to eliminate flood risks affecting the site, because the condition and the reason must be read as a whole and those words appear in the condition.
31. Pursuing that, then it will be said that the first condition, read with the reason, clearly requires the elimination or reduction of flood risks affecting the site and such works will include works affecting roads leading thereby which would be used by users coming to the site, and obviously many users would come from the nearby town of Frome.
32. That leads to the question of the meaning of the reason attached to the condition. One way of reading it is that in fact the work was intended to achieve two purposes: first, the reduction of flood risks affecting the site and, second, the development on the site itself without causing flooding elsewhere to the detriment of land and property. However, having considered the arguments on both sides, I do not think that that approach would be the correct construction.
33. The first of two crucial points is that the Lewin Fryer report is incorporated into the permission and the reader would probably go first to it. He would see from it that very extensive flood prevention works extending to about one mile were contemplated by that report and they stretched far beyond the permission site into the town of Frome. This was because (and this is apparent from the report) Lewin Fryer considered that there was no other way of preventing flooding on the permission site unless these very extensive steps were taken. Thus, at paragraph 1.7 of their report it is stated:

"This report does not deal with any other possible solutions to provide flood alleviation. This is simply because other possible methods are not feasible in this case."

As Mr Lockhart Mummery put it, the development potential of the permission site could only be unlocked by doing the very extensive works set out in the Lewin Fryer report. As it happened, if those works had been carried out there would have been a number of additional benefits (which can be seen from page 75 of the report) in particular to the site on which a carpet factory had been acting. But in the ten years following the Lewin Fryer report science has inevitably moved on and it is now said that it would be possible to produce a scheme for reducing flood risks on the site to enable it to be developed which does not require extensive works of the nature described by Lewin Fryer.

34. But it was, as I see it, because Lewin Fryer saw no option that the reason attached to the condition is drafted in the way it is. The natural meaning of the reason, in my view, is that the words "permitting development on the site" are the desired aim and objective of the permission. The reason does not state two purposes, but one and one alone. It would not be a proper approach to construction to read the word "and" in before the word "permitting", or to read the word "permitting" as "and in order to permit". Either construction, as I see it, would be contrary to the natural meaning of the reason if those words were read in, and it would indeed be contrary to article 22 of the General Development Order which provides that a reason must state the reason comprehensively.
35. Mr Lockhart Mummery's argument involves a further gloss on the reason, namely that the site should not only be developed so as not to cause flooding elsewhere to the detriment of land and property, but also should be developed so as to ensure the safety of people off site and coming to the site. He submits that that reading is legitimate because the opening clause of the condition requires the works to be carried out before the store is opened for trading, thus highlighting that what is intended to be protected is the use of the store as built, not the construction of it.
36. However, in my judgment that is not the necessary implication of the opening words of the condition. They can be explained by reference to the fact that flood prevention works would most likely be undertaken in tandem with the construction works. That was the second crucial point, namely the construction of the reason. The first, as I have said, was the state of the art at the time of Lewin Fryer's report. However, because of the state of knowledge at that time, in my view it was not necessary to identify whether flood prevention risks were those on site or off site because, at minimum, flood prevention had to be achieved on the permission site.
37. But that point leads to another point. It was clearly not essential that flood prevention should be achieved off site because that is not in terms mentioned. That, as I see it, was not a material consideration because at the time on-site flood prevention could only be achieved by the very extensive off-site works proposed by Lewin Fryer. Even now, some off-site works are still required, namely the gouging out of a hillside to create a reservoir into which flood waters can flow. I do not, however, think that it matters that even now some works off site will have to take place. What matters is whether the reference to flood prevention risks are those which are on site or off site. In my view, the condition is concerned with the prevention of on-site flood risks.
38. I am not deflected from this conclusion by the opening words of the reason, which are, as I have said, "In order to ensure that flood risks affecting the site are reduced to an acceptable level". I agree that this phrase is not in terms limited to risks on site and that it uses the word "affecting", which is a very general open textured word. However, as I have said, in my judgment the controlling words of the reason are "permitting development on site". Thus the opening clause of the reason must be read subject to those words.
39. Having reached that conclusion, I am fortified in it by the fact that there would be a significant element of uncertainty as to what would be involved in the alternative schemes if the purpose was to prevent flood risks affecting the site. I am also fortified in my conclusion by the precision in condition 5 to the permission that was granted specifying certain highway works which had to take place outside the permission site as a condition of the permission being granted. Those works were identified specifically.
40. Mr Katkowski also relied on the words "flood alleviation". The judge did likewise as indicating that they referred to works on the application site. They appear on the permission dated 17th July 1998 in the description of the proposal, which reads: "Variation of condition number 4 of planning consent 108402/004 (concerning flood alleviation works)". They also appear in the application for that permission at page 51 of the bundle, where the proposed development is described as "Variation to condition 4 of permission 108402/004 concerning flood alleviation works". Moreover, in the permission of 17th July 1998 the local authority granted conditional permission "in accordance with the submitted application and the accompanying plans but subject to the conditions hereunder stated", thus incorporating the application. Even so, it appear to me that the words "flood alleviation works" were only used in these documents as words of description and they cannot limit the words used in the operative part of condition 4.
41. However, at the end of the day, as I have said, I consider that the judge's construction was right. I consider that he was in error in not construing the condition in the light of the contents of the Lewin Fryer report, but I have come to the same conclusion as him. In my judgment, the Lewin Fryer report is both admissible and relevant evidence. However, I consider the judge's conclusion was right and accordingly that this appeal should be dismissed.

LORD JUSTICE WARD:

42. In deference to the powerful submissions made to us by Mr Lockhart Mummery QC and Mr Katkowski QC, I will try to state my reasons as shortly as I can.
43. Taking the 1998 condition as it is and construing it on its face without reference to what was in place in 1992, I read it in this way:

"Before the store ... is first opened for trading the flood prevention works identified in [1] the appraisal report `Proposed Improvements to Rodden Brook and River Frome: Appraisal of Options', prepared by Lewin Fryer and Partners and dated 20th March 1992, or [2] such other scheme as may be prepared and submitted for the purposes of flood prevention, shall be completed in accordance with details to be submitted to and approved in writing by the Local Planning Authority."

44. The task of construction can be confined to the second limb because it is no longer proposed to develop along the lines set out in the Lewin Fryer report. The task of construction, in accordance with Keene J's second rule in the Shepway case, is to read the condition with the reason. Thus, the condition becomes this: before the store can be opened flood prevention works identified in

"... such other scheme as may be prepared and submitted for the purposes of flood prevention shall be completed in accordance with the details submitted to and approved ... by the Local Planning Authority ... in order to ensure that the 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."

45. The first question which obviously arises is, what is the meaning of the words "for the purposes of flood prevention"? Do they mean flood prevention on site or do they mean flood prevention on site as well as off site. In my judgment, the natural meaning of those words is flood prevention on this particular site for which permission is sought and given. It is not a natural extension to cover flood prevention on the A362, some hundreds of yards down the road, or even flood prevention works in the road just outside the boundary of the property.
46. If, confining oneself to the words of the condition only for the moment, one asks what is the purpose of requiring flood prevention works, then I can see some force in Mr Lockhart Mummery's argument that safety can be a but not necessarily the purpose. But accepting that, it does not mean that the safety of those on the site is to extend to the safety of the customers and employees coming to and leaving the site. The purpose here is in any event clarified and explained by the reason which is given. The reason is introduced by the words "In order to". That suggests that some purpose has to be satisfied by imposing that condition. The purpose, one notes, is not expressed in terms of safety to those on and off the site, although it could have been. It is not expressed explicitly in terms of works on as well as off the site, though again perhaps it could have been, as it was in condition 5. The express purpose is to ensure that the flood risks affecting the site are reduced to an acceptable level. That acceptable level is reached, firstly, when the reduction of the flood risk would permit the development on - and I stress "on" - the site. This confirms for me the view I have formed that the natural meaning of the purpose of flood prevention in the main body of the condition is to reduce flood risks on the site. The acceptable level is reached, secondly, only if that reduction does not cause flooding elsewhere to the detriment of land and property. The words "to the detriment of land and property" introduced in 1998 seem to me neither to add nor subtract anything and, to my mind, they have no significance.
47. Thus, a reasonable developer having this condition in his hand and saying to himself, "What will I be able to do without risking some prosecution?" would, in my judgment, be able confidently to say to himself, "I cannot open this store without first having prevented the site for which the permission is given from flooding; secondly, having ensured that the flood risk affecting that site is reduced to such a level that it will permit the development on that site in a way that there is no risk of unacceptable flooding; and thirdly, having ensured that I am not going to cause flooding elsewhere." That is, in my judgment, the ordinary natural meaning of the clause. It was correctly so identified by the judge.
48. I too would therefore dismiss the appeal.
Order: appeal dismissed with costs. A N N E X

EXTRACT FROM JUDGMENT OF MR JUSTICE SULLIVAN

DATED 27TH MAY 2002

MR JUSTICE SULLIVAN:

49. This is a challenge under section 288 of the Town and Country Planning Act 1990 ("the Act") to two decisions of an inspector, appointed by the defendant, contained in a decision letter dated 19th November 2001.
50. In that decision letter, the Inspector dismissed two appeals by the claimant and refused to approve details of a flood mitigation scheme submitted pursuant to Condition 04 of a planning permission granted by Mendip District Council ("the Council") on 17th July 1998 ("the 1998 permission"), and refused planning permission for the engineering works necessary to implement that flood mitigation scheme.
51. The appeal site is about 6.5 hectares in extent and lies to the south of the A362 Wallbridge on the eastern fringes of Frome. Separated from the site and to the north west of it is a junction between Rodden Road and Wallbridge. The site is in the flood plain of the Rodden Brook, a tributary of the River Frome, and is therefore prone to flooding. It is within a flood risk area, as identified in the emerging local plan.
52. The planning history of the site extends back over some years. Planning permission for retail development on the site was initially granted on appeal. That planning permission did not include approval for a petrol filling station, so the then intended developers, Safeway, sought a further permission for:

"... erection of retail store, use class A1, with coffee shop, petrol filling station and carparking facilities".

53. Planning permission was granted, subject to a number of conditions, on 28th October 1992 (the 1992 permission). The conditions included the following. Condition 04:

"Before the store hereby permitted is first opened for trading the flood prevention works identified in the appraisal report "Proposed Improvements to Rodden Brook and River Frome Appraisal of Options", prepared by Lewin Fryer and Partners, shall be completed in accordance with details to be submitted to and approved by the Local Planning Authority".

54. The reason given was:

"In order to ensure that flood risks affecting the site are reduced to an acceptable level permitting development on the appeal site without making flooding worse elsewhere".

55. Condition 05:

"Before the store hereby permitted is first opened for trading the highway works shown on drawing number ... shall be completed in accordance with details to be submitted for approval by the Local Planning Authority, they shall consist of traffic signals at the junction of Rodden Road with the A362 and alterations to Styles Hill to include a right turning lane on the A362; a distributor road within the site to provide access to the application site, adjoining farm and industrial land; a roundabout at the junction of the distributor road with the A362; provision of a footway/cycle track alongside the A362".

56. The reason given was:

"In order to ensure that the development makes satisfactory provision for highway access and the consequences of additional traffic flows on the surrounding highway network".

57. On 6th February 1997, the claimant made an application under section 73 of the Act "to vary Condition 04". The application form merely requested "variation to Condition 04 (of the 1992 permission) concerning flood alleviation works".
58. The form is dated 6th February 1997, and in a covering letter of the same date, the claimant's planning consultants set out the reason given for the imposition of Condition 04, and explained:

"The purpose of this Condition is fully accepted by the applicants.

"It is clear from discussions with yourselves and the Environment Agency that the Lewin Fryer measures taken as a whole are more extensive than necessary to fulfil this purpose and would have a greater detrimental environmental impact than is desirable. The suggested Variation to Condition 04 therefore seeks to provide for the consideration of other flood alleviation measures which can achieve the same purpose but with a lesser environmental impact".

59. Suggested amended wording for Condition 04 was then set out, and the letter concluded:

"Mendip District Council should be aware that the effect of this variation will be to acknowledge expressly that alternative flood alleviation schemes can be submitted and considered which are more environmentally sensitive than the Lewin Fryer proposals".

60. Planning permission was granted on 17th July 1998 in the following terms:

"Permission for Development

"The Mendip District Council, being the Local Planning Authority for the said District, Hereby Grants Conditional Permission, in accordance with the submitted application and the accompanying plan(s), but subject to the conditions hereunder stated.

"Proposal: Variation of Condition Number 04 of [the 1992 permission] (Concerning Flood Alleviation Works)

"Location: Land at Wallbridge, Frome.

"Conditions Attached to Permission and Reasons Therefor:

"1 Before the store permitted under [the 1992 permission] is first opened for trading the flood prevention works identified in the appraisal report "Proposed Improvements to Rodden Brook and River Frome: Appraisal of Options", prepared by Lewin Fryer and Partners and dated 20th March 1992, or such other scheme as may be prepared and submitted for the purposes of flood prevention, shall be completed in accordance with details to be submitted to and approved in writing by the Local Planning Authority.

"Reason: In order to ensure 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".

61. The claimant put forward its proposals under the new Condition 04. They were not accepted by the Council. The claimant appealed to the Secretary of State. At the enquiry before the Inspector in October 2001, there were a number of matters in dispute between the claimant and the Council. The Inspector resolved those matters in the claimant's favour in paragraph 35 of the decision letter, as follows:

"I conclude that [the 1998 permission] is an independently viable permission, which incorporates all the conditions of [the 1992 permission] ... This permission was validly implemented by the works carried out in October 1997 and remains extant".

62. He then turned to the remaining matter in dispute: "The Interpretation of Condition 04". This is the sole issue in these proceedings. The bone of contention between the claimant and the Council is the Rodden Road junction. As the Inspector explained in paragraph 51 of the decision letter:

"It is not disputed that the A362 floods frequently. The Environment Agency confirms that the Rodden Road junction, the lowest point along this part of the A362 ... floods on average once each year ... The appellant's scheme does not, and is not intended to, affect the levels of flooding on the A362".

63. Did Condition 04 enable the Council to insist on a flood mitigation scheme, which would not merely prevent the appeal site from flooding, but which would also resolve the long standing flooding problem at the Rodden Road junction? The claimant disputed the Council's entitlement to insist on such a scheme under Condition 04. The Inspector accepted the Council's submissions. He was satisfied that the claimant's proposed flood mitigation scheme:

"... would ensure that the food store development would have no significant impact on flood water levels. The Environment Agency confirms that the proposed scheme would ensure that flooding in the area would not increase, due to the food store development, and that the store itself could be protected during a one in a hundred year flood event ... But the appellant's evidence makes it clear throughout that the scheme being put forward is not intended to address the impact of flooding on the A362, as it is an off-site problem that already exists, which the food store development cannot be expected to resolve ..."

64. The Inspector disagreed with the claimant's position and concluded that it was:

"... necessary and reasonable to require that the flooding problem on the A362 is resolved before the food store proceeds. It is reasonable because it is directly related to the development. Without the food store, people would not be attracted to the site and so would not be put at risk".

65. The issue before me is whether the Inspector was entitled, on a proper interpretation of Condition 04, to require the complainant to resolve the flooding problem on the A362.