Scottish Court of Session Decisions

"2. Areas of importance for flood control

Within identified areas of importance for flood control, or any other area of value for the storage of flood water, there will be a presumption against development that will significantly reduce its water storage capacity, including landraising and flood prevention measures, unless:

(a) it can be demonstrated that adequate compensatory water storage can be provided; and

(b) proposals for provision of such compensatory water storage are submitted with the planning application.

If acceptable in principle, the implementation of compensatory water storage will be secured through planning condition or legal agreement."

"FSH Airport (Edinburgh) Services Ltd object to the site being designated under Policy E45 as an Area of Importance for Flood Control. The site has been wrongly designated in this respect in that it does not provide significant flood storage potential and it is not on a natural flood plain. The site is protected against flood risk."

"Flood plain - the generally flat areas adjacent to a watercourse or the sea where water flows in time of flood or would flow but for the presence of flood prevention measures (also called the geographical flood plain). The limits of a flood plain are defined by the peak water level of an appropriate return period event. See also Functional Flood Plain."

"Functional flood plain - the areas of land where water flows in times of flood which should be safeguarded from further development because of their function as flood water storage areas."

Paragraphs 16-18 of the text of SPP7 deal with development on functional flood plains. They state in part:

"16. Functional flood plains store and convey flood water during times of flood. These functions are important in the wider flood management system. New development on the functional flood plain will not only be at risk itself, but will add to the risk elsewhere. Cumulative effects will arise from proposals which individually may seem of little consequence. For planning purposes the functional flood plain will generally have a greater than 0.5% (1:200) probability of flooding in any year.

17. Built development should not therefore take place on functional flood plains. [ . . .]"

The reporters' report (no 6/5 of process) also includes the following definitions at paragraph 7.28:

"Flood prevention measures: works including walls, new channels, embankment and flood water storage areas. Usually components of a flood prevention scheme (see below).

Flood prevention scheme: a scheme of flood management measures under the Flood Prevention (Scotland) Act 1961."

"Not accepted. This land is prone to flooding (despite the limited existing defences) and provides valuable flood water storage. Policy E45 does not preclude the development of such sites, subject to compliance with other policies of the plan and compensatory water storage being provided."

"Most of the submissions and evidence relating to this objection focus on the various definitions and policy approaches to minimising flood risks; on the appropriate flood status of the objection site; and whether it should be treated as a site of importance for flood control, in that it may contribute to reducing flood risks downstream."

"1. The inclusion of this site in the local plan as an area of importance for flood control is based on the assumption that it stores water during periods of high water levels in the Gogar Burn, and is hence part of the functional flood plain.

2. That assumption appears to be based primarily on the two flooding events that occurred during 2000.

3. The height that the water reached during the worst of those two events is disputed. The Council's case is based on an indication by a member of the hotel staff several weeks after the event occurred, and after the hotel had been redecorated. However it appears to have been a 1:80 or 1:100 year event, rather than a 1:200 year event.

4. The Council accepts that the protective bank along this part of the Gogar Burn has a general height level (following some repair work) slightly below the level of a 1:200 year event. This seems to confirm the objector's evidence that the flooding was caused by breaching of the bund, forming gaps through which the water poured.

5. Now that the bund has been repaired, including maintenance to ensure an even ridge height, to achieve protection approaching the level of a 1:200 year event, the objection site should not suffer flooding from smaller events. It could be improved to achieve a full 1:200 level of protection.

6. In these circumstances, the site would not flood in events that are less serious than the 1:200 event, and thus does not form part of the functioning [sic: read 'functional'] flood plain.

7. The bund that protects the site was built in the first instance to accommodate the new Turnhouse airfield. It does not have the characteristics of an agricultural flood embankment either in terms of the purpose for its construction or the level of protection that it offers.

8. For these reasons, we conclude that the site is not part of the functioning [sic: read 'functional'] flood plain.

9. If it is assumed that the site forms part of the functional flood plain, the modelling indicates that withdrawal of this storage capacity would be likely to raise the water level in the downstream section of the Gogar Burn by about 100mm during a 1:100 year event. This would affect the section of the burn passing through the airport, but would have no noticeable effect on the River Almond, which lies immediately to the north. No evidence was presented to suggest that this difference in water level would be likely to cause problems in the airport section of the burn, nor on the implications during a 1:200 event.

10. We conclude that even if it is accepted that the site forms part of the functional flood plain, it has not been demonstrated that it has significant water storage function where removal would be likely to cause significant problems downstream.

11. We conclude that the designation as an area of importance for flood control should not apply to the objection site.

12. We reach no conclusion as to whether this should apply to other land to east and west, as this land is not the subject of this objection, nor do we have comparable evidence for these additional areas. However it may be that the Council has sufficient information to conclude that the adjoining areas should also be omitted from the area of importance for flood control, for reasons of consistency.

13. We note the objector's view that local plan policy E45 requires revision in the light of more recently published executive policy and advice on planning for flooding. We consider this to be a matter for the Council to consider, as it goes beyond the immediate objective of this objection.

"7.34 The designation of the 068/03 objection site [the applicants' site] as part of the area of importance for flood control under policy E45 should be deleted.

7.35 The Council should consider whether policy E45 and the supporting text require revision in the light of revised Scottish Executive guidance on planning and flooding published during 2004."

"3.16 A number of objections related to land south of the Hilton Hotel at Edinburgh Airport. The reporters did not support releasing this site for development, or removing it from the green belt, and these conclusions are welcomed. However, the reporters did recommend (7.34) removing this site's designation as part of an area of importance for flood control. This is not accepted. The Council remains convinced that this site does form a part of the 'functional flood plain', and is required to store waters to protect the Airport in the event of a 1 in 200 year flood event. There is also an apparent contradiction in the reporters' conclusions that the site is not a part of the functional flood plain and yet would flood in a 1 in 200 year event."

"The Council has carefully considered the Reporters' recommendation in 7.34. However, it maintains its view that the Eastfield Road site is part of the 'Functional Flood Plain'. This, with other sites in the airport area, should be viewed as agricultural land providing significant flood storage capacity. The designation is a small but significant component of the Council's flood prevention scheme which is designed to give 1:200 year protection primarily to Edinburgh Airport. There is also an apparent contradiction in the Reporter's conclusions that the site is not part of the functional flood plain and would flood in a 1 in 200 year event."

Adequacy of reasons
Submissions for the applicants

The applicants had been present at the inquiry and had been aware of the respondents' statement of their case prior to the inquiry and the precognitions of their witnesses. They had heard the witnesses' oral evidence and the submissions of counsel. The question whether a site was part of a functional flood plain was a planning judgment; and the respondents' planning judgment was that the site would form part of a functional flood plain in a flood in a 1:200 year event. That judgment had been based on the guidance in SPP7, and the reporters' conclusions had not given proper reasons for departing from that guidance. It had always been the respondents' position that a functional flood plain should be viewed as an area that would be affected by flood in a 1:200 year event. That was clear from the precognition of their witness Sarah Hartop (no 7/5 of process, paragraph 7.7A) and from the reporters' summary of the respondents' position in paragraph 7.32 of their report (no 6/5 of process). The key issue was whether the area would flood in a 1:200 year event. Given the acceptance on all sides that it would do so, it had been reasonable for the respondents to make a planning judgment that the storage capacity of the site should be protected by their policy. That was in accordance with SPP7. The apparent contradiction referred to in the final sentence of the respondents' reasons was the main reason why they disagreed with the reporters' findings. The respondents' position relative to the definition of "functional flood plain" was apparent from the submissions of their counsel at the inquiry (no 7/7 of process, paragraphs 2.2.6 and 2.3). The evidence had been that the protection afforded by the bund was slightly below that required for a 1:200 year event. Counsel referred to the submissions by the Dean of Faculty at the inquiry (no 7/8 of process, paragraphs 36, 38 and 48) and to technical reports (nos 7/16 and 7/14 of process) and plans (no 7/13 of process) which had been before the inquiry. The respondents had been entitled to conclude that the site formed part of the functional flood plain and to reject the reporters' recommendation for that reason. Their reasons had been brief, but they had been proper, adequate and intelligible to the applicants. They were not to be looked at in vacuo, and the interests of the applicants had not been prejudiced by any deficiency in them. The additional information which had been available at the inquiry had confirmed that the site would flood in a 1:200 year event.

"The single indivisible question, in my opinion, which the court must ask itself whenever a planning decision is challenged on the ground of failure to give reasons is whether the interests of the applicant have been substantially prejudiced by the deficiency of the reasons given."

In The Fairfield Partnership Lindsay J defined the purpose that was intended to be served by the giving of reasons. He said (at paragraph 43):

"In my judgment that purpose, at any rate where, as in the case before me, an objector's objections fail, is the giving to that objector (available also to others) its reasons for its decision to such an extent at least as is sufficient to indicate to the objector whether or not reasonable grounds exist for a challenge to the decision under the relevant machinery for challenge [ . . . ] Unless he gives reasons at least to that extent an applicant is prejudiced and, indeed, the test can be put as a single test as to whether the interests of an applicant have been substantially prejudiced by reason of the deficiency of the reasons given - Save Britain's Heritage at 167 per Lord Bridge. The type of reasons which are likely to preclude any reasonable challenge will greatly vary from case to case and, in particular, as between, at one end of a spectrum, decisions wholly of fact and, at the other end, questions that may be called ones of planning judgment."