Mead Realisations Ltd v SoS LUHC; Redrow Homes Ltd v SoS LUHC
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Holgate |
| Judgment Date | 12 February 2024 |
| Neutral Citation | [2024] EWHC 279 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: AC-2023-LON-002327 |
[2024] EWHC 279 (Admin)
THE HON. Mr. Justice Holgate
Case No: AC-2023-LON-002327
AC-2023-LON-002481
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Charles Banner KC and Isabella Buono (instructed by Clarke Willmott Solicitors) for the Claimant in AC-2023-LON-002327
Zack Simons and Isabella Buono (instructed by Osborne Clarke LLP) for the Claimant in AC-2023-LON-002481
Hugh Flanagan and Piers Riley-Smith (instructed by the Government Legal Department) for the First Defendant in both claims
Emmaline Lambert (instructed by Hertsmere Borough Council) for the Second Defendant in AC-2023-LON-002481
North Somerset Council did not appear and were not represented.
Hearing dates: 17 and 18 January 2024
APPROVED JUDGMENT
This judgment was handed down remotely at 10.30am on 12 February by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
These two claims raise issues about the interpretation and application of the sequential test in national policy on flood risk.
In AC-2023-LON-002327 Mead Realisations Limited (“Mead”) brings a challenge under s.288 of the Town and Country Planning Act 1990 (“TCPA 1990”) to the decision of the Inspector on behalf of the first defendant, the Secretary of State for Levelling Up, Housing and Communities, dated 20 June 2023 dismissing its appeal against the refusal by the second defendant, North Somerset Council (“NSC”), of an application for planning permission for residential development of up to 75 dwellings at Lynchmead Farm, Ebdon Road, Wick Street, Lawrence, Weston-Super-Mare (“the Lynchmead decision”).
In AC-2023-LON-002481 Redrow Homes Limited (“Redrow”) brings a challenge under s.288 to the decision of the Inspector on behalf of the same defendant dated 19 July 2023 dismissing its appeal against a deemed refusal by the second defendant, Hertsmere Borough Council (“HBC”), of an application for planning permission for residential developments of up to 310 units and land reserved for a primary school, community facilities and a mobility hub on land at Little Bushey Lane, Bushey (“the Bushey decision”).
Relevant Policies
The National Planning Policy Framework (“NPPF”) was first published by the Secretary of State on 27 March 2012. These claims relate to the NPPF published on 20 July 2021, the version in force at the dates of the respective public inquiries and decision letters.
Chapter 2 of the NPPF deals with “achieving sustainable development”. Paragraph 11c-d sets out the presumption in favour of sustainable development (as analysed in Monkhill Limited v Secretary of State for Housing, Communities and Local Government [2020] PTSR 416; [2021] PTSR 1432 and Gladman Developments Limited v Secretary of State for Communities, Housing and Local Government [2021] PTSR 1450). In the present cases the local planning authorities were unable to demonstrate a 5-year supply of deliverable housing sites within their respective areas and so the presumption in favour of sustainable development, otherwise known as the “tilted balance”, was engaged, unless disapplied by limb (i) or limb (ii) of paragraph 11d.
Under limb (i) the presumption is disapplied where inter alia the application of the NPPF policies “that protect areas or assets of particular importance provides a clear reason for refusing the development proposed”. Those policies include the policies relating to “areas at risk of flooding or coastal change” (see footnote 7). Where flood risk policy does not provide a clear reason for refusing permission, the tilted balance applies unless any adverse impacts of granting permission would “significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole” (limb (ii)).
Chapter 14 of the NPPF deals with the challenges posed by climate change, flooding and coastal change. Paragraphs 159 to 169 deal with flooding. The overall objectives are set out in para. 159:
“Inappropriate development in areas at risk of flooding should be avoided by directing development away from areas at highest risk (whether existing or future). Where development is necessary in such areas, the development should be made safe for its lifetime without increasing flood risk elsewhere.”
Paragraphs 160 to 161 address the preparation of strategic policies and development plans. Paragraph 161 provides:
“All plans should apply a sequential, risk-based approach to the location of development – taking into account all sources of flood risk and the current and future impacts of climate change – so as to avoid, where possible, flood risk to people and property. They should do this, and manage any residual risk, by:
a) Applying the sequential test and then, if necessary, the exception test as set out below;
b) …”
The submissions in these cases have focused on para. 162, which sets out the sequential test:
“The aim of the sequential test is to steer new development to areas with the lowest risk of flooding from any source. Development should not be allocated or permitted if there are reasonably available sites appropriate for the proposed development in areas with a lower risk of flooding. The strategic flood risk assessment will provide the basis for applying this test. The sequential approach should be used in areas known to be at risk now or in the future from any form of flooding.”
The sequential test applies not only to plan-making but also to development control decisions. The words “from any form of flooding” refer not only to flooding from rivers or the sea, but also surface water flooding.
If the sequential test is passed, that is there are no reasonably available sites appropriate for the proposed development in areas with a lower risk of flooding, then it may be necessary to apply the “exception test” in accordance with paras. 163 to 165:
“163. If it is not possible for development to be located in areas with a lower risk of flooding (taking into account wider sustainable development objectives), the exception test may have to be applied. The need for the exception test will depend on the potential vulnerability of the site and of the development proposed, in line with the Flood Risk Vulnerability Classification set out in Annex 3.
164. The application of the exception test should be informed by a strategic or site-specific flood risk assessment, depending on whether it is being applied during plan production or at the application stage. To pass the exception test it should be demonstrated that:
a) the development would provide wider sustainability benefits to the community that outweigh the flood risk; and
b) the development will be safe for its lifetime taking account of the vulnerability of its users, without increasing flood risk elsewhere, and, where possible, will reduce flood risk overall.
165. Both elements of the exception test should be satisfied for development to be allocated or permitted.”
Annex 3 (referred to in para.163) classifies different types of land use, namely “essential infrastructure” (e.g. infrastructure which has to be located in a flood risk area), highly vulnerable (e.g. caravans and installations requiring hazardous substances consent), more vulnerable (e.g. hospitals, care homes, residential development), less vulnerable (shops, services, offices and industry) and water-compatible development.
Paragraph 164(a) allows the need for the development plus any sustainability benefits to be balanced against flood risk.
Paragraph 167 requires that a development proposal should not increase flood risk elsewhere. Applications should be supported by a site-specific flood risk assessment. The Environment Agency is responsible for classifying land by reference to the annual probability of flooding from a river or the sea. For zone 1 the probability is less than 0.1%, for zone 2 below 1% from rivers or below 0.5% from the sea, and for zone 3 1% or above from rivers or 0.5% or above from the sea. A flood risk assessment is required for all development in zones 2 or 3 and certain development in zone 1.
On 6 March 2014 the Secretary of State introduced a website containing Planning Practice Guidance (“PPG”) which may be amended from time to time. The section on flood risk was amended on 25 August 2022.
Development plans are prepared to determine the need for different types of development and their distribution across the area of the plan. It is plain from para. 026 of the PPG that the need for development is a relevant consideration in plan-making. That need should be reviewed where the sequential test is not satisfied.
The PPG describes how the sequential test should be applied in determining planning applications. The test is applied to an area “defined by local circumstances relating to the catchment area for the type of development proposed”, for example the catchment area of a school. The need for a certain type of development (e.g. to sustain an existing community) may limit the area of search for alternative sites to an area in flood zones 2 and 3 and so sites further afield may not be reasonable alternatives (PPG para. 027). Nationally or regionally important infrastructure may involve an area of search beyond the area of the local authority.
The submissions in this case have largely focused on para. 028 of the PPG:
“ What is a “reasonably available” site?
‘Reasonably available sites’ are those in a suitable location for the type...
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