22/07/2013

Commercial Property e-Brief – Development of land near canals

Due to a recent Court of Appeal decision, land next to canals previously assessed as flood zone 2 or 3 can be re allocated leading to the opening up and extension of development sites.

In assessing the flood risk of land the Environment Agency disregards any “formal flood defences” and assumes they are to fail. They do however take into account “de facto flood defences”. These are structures for which flood defence is a secondary or indirect purpose. In this recent case Peel Holdings argued that the sluice gates on Manchester Ship Canal had been incorrectly allocated as formal defences and therefore assumed to fail.  The Court agreed with them and ruled the Environment Agency should take the sluice gates into account in assessing the flood risk. This meant the site achieved flood zone 2 status and not 3. In practical terms this means planning permission for 700 more homes.

Developers should look again at those sites which have either been refused planning permission on the basis of flood risk or had their development potential curtailed on this ground. If the Environment Agency misapplied its own policies, such as it did in this case, then this designation can now be confidently challenged.