Pine Ridge Homes Ltd. (PRHL) has issued a claim against Caerphilly County Borough Council (“CCBC”) to recover damages in excess of £500,000 arising from the diversion of rainwater and flood water onto PRHL’s land at St Mary’s Street, Bedwas (“The Land”). A plan is attached for ease of reference.  

PRHL bought the land adjacent to St. Mary’s Street with the benefit of a planning consent originally obtained in April 2008 which was then extended to March 2018. Prior to the purchase PRHL carried out the usual searches including a local search with CCBC. The results stated that the land was not required or used for public purposes.  

The planning permission contained a drainage condition (Condition No 3) that required the design of the foul and surface water drainage be submitted to and approved by CCBC and Welsh Water/Dwr Cymru (WW/DC). The drainage design was prepared by Blackburn Griffiths Ltd (BGL), a specialist civil and drainage engineering consultancy of high repute and was approved by WW/DC subject to formal legal approval of the Section 104 Agreement, the completion of which was held in abeyance pending approval of the design of the drainage scheme by CCBC.

Discussions with the drainage department at CCBC, which should have been resolved in a statutory eight weeks were long and protracted taking over six months and without a satisfactory conclusion. Four requests for additional information were made in this period, some of which plainly duplicated earlier requests. Towards the end of this period BGL concluded that they had provided all the information that would be required by a local authority acting reasonably to allow for this condition to be discharged but CCBC for reasons best known to themselves were either unwilling or unable to consent to the discharge of condition no 3. CCBC then refused approval of the drainage condition, and this was coincident with the expiry of the planning consent in April 2018.  

At a meeting with CCBC officers on 27 September 2017, PRHL advised the drainage officers of the existence of the two additional road gullies and a linear slotted drain across the entrance of the local primary school. This is referred to below as the 2007 Road Drain 

Apparatus (“2007 RDA”). Mrs Johnson, the then Head of Drainage, strongly denied that the 2007 RDA had anything to do with CCBC and there then followed the long, protracted and unsuccessful supply of information to discharge the condition no 3 referred to in the previous paragraph. It was not until after substantive correspondence and an official complaint being made by PRHL to CCBC that CCBC was forced to admit in December 2018 that it was CCBC that had installed the 2007 RDA.        

The BGL drainage design and flow calculations used in connection with the application to discharge condition 3 have since been inspected by an independent drainage engineer and found to be correct and to meet the applicable standards.  

Following the expiry of the Planning Permission PRHL then investigated if there was a reason why the drainage department at CCBC, specifically the head of the drainage department, Mrs. Michelle Johnson and her senior drainage officer, Mr. Rhodri Powell, behaved in the way they did. Both Mrs. Johnson and Mr. Powell have both since left the employment of CCBC.          

This investigation has revealed that the following water diversion works have been carried out to the Land by CCBC or its predecessor authority: -  

1. Extension of main surface water sewer from St Mary’s Street onto the Land and the creation of a culvert (“the Culvert”) approximately 40 years ago. The extension of the sewer into the Land has the effect of removing onto the Land storm water from the main surface water sewer to relieve the antiquated drainage system in St Mary’s Street and the surrounding area. 

2. The development of the adjacent Birchwood Gardens housing development required under its revised planning permission, granted by CCBC, that the level of Birchwood Gardens was raised by up to one metre so that its northern boundary, which adjoins the Land, acted as a dam and secondly that a drainage ditch was installed to divert water from the northern boundary towards the Culvert. The condition requiring the drainage to flow towards the Culvert crossed land that the developer of Birchwood Gardens did not own or control and was contrary to Governmental planning guidance at the time.  

3. Installation of two road gullies and the slotted drain across the school access drive which were diverted into the site through drainage works carried out  in March 2007. This is the 2007 RDA referred to above.

4. Diversion of spring water rising on the Land to prevent flooding at No 4 St Mary’s Street in 2011 and 2012, carried out as part of the works to up-grade the footpath. 

With regards to 3 – 4 above the previous owner to PRHL has stated that they did not consent to the installation of any of these installations. 

With regards to 3 above the investigation revealed that in March 2007 CCBC installed drainage infrastructure into St Mary’s Street, which infrastructure comprises, as stated above, two additional road gullies and a linear slotted drain across the entrance of the local primary school.  The drains were looped to bypass the existing mains drain in the middle of the road and to run directly to the Culvert on the Land. This is referred to as the 2007 RDA. 

The 2007 RDA infrastructure is not recorded on the council’s asset register and there seem to be no files to show work done or who was paid to do this work. The existence of the 2007 RDA or that it was built by CCBC was denied by CCBC. PRHL only became aware of its existence during site investigations and the fact that CCBC had undertaken this work was subsequently confirmed when PRHL discovered an email from a local resident asking the Council to request the contractor who undertook the work to remove their waste. It was only in 2018 that CCBC admitted that it had installed the 2007 RDA. Again, PRHL’s predecessor owner was not aware of the construction of the 2007 RDA.  

With regards to 4 above, the fact that works were done on the Land to divert spring water flowing into properties located on St Mary’s Street at the time the upgrade works were being carried out to Footpath 3A in 2011/2012, has now been confirmed in very recently revealed correspondence between householders and the late Cllr. Ray Davies and also PRHL’s own investigations on the Land. However there again appears to be no file to show what works were done or which contractor did the work and how much the contractor was paid. PRHL’s predecessor owner was also not aware of these works.  

PRHL have now made claims in respect of the 2007 RDA and the works carried out in 2011 which seek compensation under the Highways Act 1980, alternatively damages for trespass onto PRHL land and for the further trespass that occurs each time water floods the Land via the 2007 RDA and for damages for trespass in respect of the works carried out in late 2011/early 2012 (i.e the works described at 4 above).    

Before the installation of the 2007 RDA and the 2011 works water diversion works listed above, the properties on St Mary’s Street and the Primary School at the bottom of St Mary’s Street used to flood frequently. Since the carrying out of these works the properties at St Mary’s Street and the Bedwas Primary School have not flooded. 

PRHL have therefore concluded that the works carried out at as listed at 1-4 above have the effect of turning PRHL’s land into a flood water attenuation facility and is a key element in the management of the Bedwas flood defence system.  

PRHL have also concluded that the manner in which CCBC dealt with the discharge of condition 3 had the aim of never approving the BGL drainage system because if the drainage system was approved and construction started,the 2007 RDA works and the unlawful footpath works carried out in 2011/2012, which in both cases there appears to be no record of work done or payments made, might be discovered and if the 2007 RDA and the wors done in 2011 were altered or removed as part of PRHL’s development of the site, then the risk of flooding to the St Mary’s Street properties and the local primary school might resume. 

The discussions with CCBC in connection with the discharge of condition 3 proposed the putting in place of an ordinary water course solution which provided 115m3 of flood water storage capacity. More recent analysis undertaken by PRHL of the surface water capacity capable of being removed from St Mary’s Street by the Culvert and the 2007 RDA (so as to remove the risk of flooding to the Primary School and the St Mary’s Street properties) indicates that the volume of water capable of removal via the Culvert and 2007 RDA  is estimated to be 745m3 and so considerably greater than that proposed  by ordinary water course solution. 

During the discussions seeking the discharge of condition 3, CCBC were asked by PRHL’s representatives on two occasions what was the volume of water to be removed from St Mary’s Street that PRHL’s drainage design for the Land had to accommodate  but CCBC gave no answer to this question on either occasion presumably because if CCBC had given an answer it would have required the admitting the existence and role of the 2007 RDA which CCBC had denied any involvement with and in respect of which there would appear to be no records of the works done.

Accordingly, the Land was and is an important part of the flood water defence system which had to be preserved.  In so doing the trespasses listed at 3 and 4 above created a dual land use making the planning permission granted in April 2008 incapable of being implemented, because it is not possible to build houses and store road flood water on the same land, and hence CCBC, unable to approve the drainage submission to discharge condition 3 for the reason set out in the paragraph above  delayed approving Condition 3 until the planning permission expired. 

The fact that CCBC require the dual use of the Land has recently been revealed in a recent pre-application planning discussion with CCBC at which the newly appointed head of drainage at CCBC stated CCBC’s desire that the lower part of the Land, which is the land used as the water attenuation facility, should retain this established and proven use and that no part of PRHL’s intended development for the upper part of the Land should affect this continuing use.     

PRHL have accordingly issued a claim for compensation under the Highways Act, damages for trespass and nuisance. Local authorities should not trespass onto other people’s land by constructing drainage facilities and then unlawfully flooding that land using their newly constructed drainage facilities. Local Authorities should also keep records of works done and money spent in doing those works.        

Members are aware that in recent years the reputation and public perception of CCBC has been severely damaged by two major court cases: the dispute with Anthony Sullivan and the case with Rhymney Valley and District Angling Society. The implications of the St Mary’s Street, Bedwas complaint will further bring into question the management and standards in existence at CCBC.