R Watermead Parish Council v Aylesbury Vale District Council Crematoria Management Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | HHJ Waksman |
| Judgment Date | 04 March 2016 |
| Neutral Citation | [2016] EWHC 624 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 04 March 2016 |
| Docket Number | CO/3599/2015 |
[2016] EWHC 624 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
PLANNING COURT
His Honour Judge Waksman QC
(sitting as a Judge of the High Court)
CO/3599/2015
and
Mr R Kimblin QC (instructed by Schwab Legal Group, Solicitors) for the Claimant
Ms C Parry (instructed by the Defendant's Legal Department) for the Defendant
Mr A Goodman (instructed by HP Public Law) on behalf of the Interested Party
APPROVED JUDGMENT
Hearing date: 1 March 2016
HHJ Waksman QC:
INTRODUCTION
On 18 June 2015, the defendant local planning authority, Aylesbury Vale District Council ("the Council") granted planning Permission for the demolition of a restaurant and the construction of a crematorium at a known flood risk site at Watermead ("the Permission"). It was based on an officer's Report made in November 2014, shortly before the Council's planning committee met on 10 December ("the Report"). The Report recommended the grant of Permission subject to certain further conditions relating, in particular, to the mitigation of flood risk. The committee delegated the application back to the planning officer for determination, following receipt of satisfactory amended information to resolve the issues remaining which had been raised by the Environment Agency ("the EA"). This was provided and the Permission granted was accompanied by a completed post-committee delegated determination check list of the same date.
The claimant, Watermead Parish Council ("Watermead") is the parish council for the area in which the crematorium will be built. The interested party, Crematoria Management Ltd ("CML"), has much experience in the construction and operation of crematoria. Watermead seeks judicial review of the Permission on two related grounds, both arising from matters set out in the Report. First, the Report wrongly applied the presumption in favour of development contained in paragraph 14 of the National Planning Policy Framework ("the NPPF"). Secondly, the Report wrongly stated that a sequential test was not necessary. The Council and CML deny any unlawfulness on these grounds. CML adds that as the decision was highly likely to be the same, if carried out lawfully (on Watermead's case), I should refuse relief as a matter of discretion. It further argues that there has been a delay here, causing it prejudice, since the matter being challenged was the Report made in November 2014, while the claim was only issued on the last day of the 6-week period following the actual grant of Permission, that is on 30 July 2015. Therefore, as a matter of discretion on that ground also, relief should be refused.
RELEVANT POLICIES
There is no relevant development plan here in respect of flood risk at this site. I therefore turn first to the NPPF. The relevant provisions are as follows. Paragraph 14 states that at the heart of the NPPF is a presumption in favour of sustainable development which should be seen as a golden thread running both through plan making and decision taking, and on decision taking, it is said that this means that:
" • approving development proposals that accord with the development plan without delay"
And (which is this case):
" • where the development plan is absent, silent or relevant policies are out-of-date, granting Permission unless:
– any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or
– specific policies in this Framework indicate development should be restricted."
There is a footnote to that last line which says:
"For example, those policies relating to sites protected under the Birds and Habitats Directives (see paragraph 119) and/or designated as Sites of Special Scientific Interest; land designated as Green Belt, Local Green Space, an Area of Outstanding Natural Beauty, Heritage Coast or within a National Park (or the Broads Authority) designated heritage assets; and locations at risk of flooding or coastal erosion."
Paragraph 100 reads as follows:
"Inappropriate development in areas at risk of flooding should be avoided by directing development away from areas at highest risk, but where development is necessary, making it safe without increasing flood risk elsewhere."
And then it talks specifically about local plans. Paragraph 101 says:
"The aim of the Sequential Test is to steer new development to areas with the lowest probability of flooding. Development should not be allocated or permitted if there are reasonably available sites appropriate for the proposed development in areas with a lower probability of flooding. The Strategic Flood Risk Assessment will provide the basis for applying this test. A sequential approach should be used in areas known to be at risk from any form of flooding."
Then paragraph 102 says:
"If, following application of the Sequential Test, it is not possible, consistent with wider sustainability objectives, for the development to be located in zones with a lower probability of flooding, the Exception Test can be applied if appropriate."
Then it sets out what the Exception Test is, which is by reference to benefits from the development in question and what has to be demonstrated by site specific flood assessment.
Paragraph 103 says:
"When determining planning applications, local planning authorities should ensure flood risk is not increased elsewhere and only consider development appropriate in areas at risk of flooding where, informed by a site-specific flood risk assessment20 following the Sequential Test, and if required the Exception Test, it can be demonstrated that:
• within the site, the most vulnerable development is located in areas of lowest flood risk unless there are overriding reasons to prefer a different location; and
• development is appropriately flood resilient and resistant, including safe access and escape routes where required, and that any residual risk can be safely managed, including by emergency planning; and it gives priority to the use of sustainable drainage systems."
Paragraph 104 then states:
"For individual developments on sites allocated in development plans through the Sequential Test, applicants need not apply the Sequential Test. Applications for minor development and changes of use should not be subject to the Sequential or Exception Tests but should still meet the requirements for site-specific flood risk assessments."
And then moving on to the NPPF Planning Practice Guidance, issued in March 2014 to accompany the NPPF, there are the following provisions under Flood Risk and Coastal Change. First of all, under Section 1:
"The National Planning Policy Framework sets strict tests to protect people and property from flooding which all local planning authorities are expected to follow. Where these tests are not met, national policy is clear that new development should not be allowed."
And then the main steps are set out:
"[They] are designed to ensure that if there are better sites in terms of flood risk, or a proposed development cannot be made safe, it should not be permitted."
And then under Manage and Mitigate Flood Risk it says:
" • Where development needs to be in locations where there is a risk of flooding as alternative sites are not available, local planning authorities and developers ensure development is appropriately flood resilient and resistant, safe for its users for the development's lifetime…"
Later on, under section 4 in relation to the sequential test, it says:
"This general approach is designed to ensure that areas at little or no risk of flooding from any source are developed in preference to areas at higher risk. The aim should be to keep development out of medium and high flood risk areas (Flood Zones 2 and 3) and other areas affected by other sources of flooding where possible.
Application of the sequential approach in the plan-making process, in particular application of the Sequential Test, will help ensure that development can be safely and sustainably delivered and developers do not waste their time promoting proposals which are inappropriate on flood risk grounds."
Under section 5, the aim of the sequential test was to:
"… The aim is to steer new development to Flood Zone 1 (areas with a low probability of river or sea flooding). Where there are no reasonably available sites in Flood Zone 1, local planning authorities in their decision making should take into account the flood risk vulnerability of land uses and consider reasonably available sites in Flood Zone 2 (areas with a medium probability of river or sea flooding), applying the Exception Test if required. Only where there are no reasonably available sites in Flood Zones 1 or 2 should the suitability of sites in Flood Zone 3…"
Under who is responsible under general section 11:
"It is for local planning authorities, taking advice from the Environment Agency as appropriate, to consider the extent to which Sequential Test considerations have been satisfied, taking into account the particular circumstances in any given case. The developer should justify with evidence to the local planning authority what area of search has been used when making the application. Ultimately the local planning authority needs to be satisfied in all cases that the proposed development would be safe and not lead to increased flood risk elsewhere."
Paragraph 17 defines minor development....
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