Council ‘cannot be held responsible’ if Clay Cross homes flood near new development

Residents living opposite a controversial housing development should direct their anger at county rather than district council chiefs if their homes flood in the future – according to an independent legal advisor.

By Christina Massey
Monday, 13th December 2021, 10:41 am

Planning and environmental specialist Jonathan Mitchell, of Ropewalk Chambers, has advised that North East Derbyshire District Council (NEDDC) cannot be held responsible if homes in Windermere Road, Clay Cross, flood as a result of the Woodall Homes development, off Clay Lane.

Derbyshire County Council as Lead Local Flood Authority (LLFA) raised concerns about flooding on the site after the district council had already granted planning permission.

NEDDC sought legal advice after receiving complaints from residents, concerned the development would cause increased flooding of Press Brook.

The Woodall Homes development

In a letter to the authority, Mr Mitchell stated: “I note that local residents are of the opinion that permission should have been refused for the development on the grounds of flood risk, notwithstanding the lack of objection from the LLFA and the advice received from the LLFA that there was no concern.

“I advise that this is a misconception on the part of the local residents.

“A local planning authority(LPA) is obliged to consult various statutory consultees in connection with any development.

“Those consultees are the experts.

“The local planning authority does not have the necessary in-house expertise to comment on those matters.”

He went on to explain that it is not possible to refuse a planning application on the basis that there is an increased risk of flooding unless there is ‘clear, cogent evidence that can be relied upon at any subsequent appeal to that effect’.

Mr Mitchell added that to do so would expose a planning authority to the ‘risk of a costs application’, which if successful would mean they would have to pay the costs of the applicant.

He continued: “Residents’ ire at that state of affairs should be directed at the LLFA, not the council as LPA.”

A spokesman for Derbyshire County Council said: “We were not aware of this legal advice that North East District Council have obtained.

“Now that we are our officers will need some time to consider it.”