Watermead Parish Council v Aylesbury Vale District Council Crematoria Management Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lindblom,Lord Justice Patten |
| Judgment Date | 17 March 2017 |
| Neutral Citation | [2017] EWCA Civ 152 |
| Docket Number | Case No: C1/2016/1235 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 March 2017 |
and
[2017] EWCA Civ 152
Lord Justice Patten
and
Lord Justice Lindblom
Case No: C1/2016/1235
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
PLANNING COURT
H.H.J. WAKSMAN Q.C.
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Richard Kimblin Q.C. (instructed by Schwab & Co Legal Services) for the Appellant
Ms Clare Parry (instructed by HB Public Law) for the Respondent
Mr David Elvin Q.C. and Mr Alex Goodman (instructed by Clarke Willmott LLP) for the Interested Party
Hearing date: 22 November 2016
Further submissions received: 22, 28 and 29 November 2016
Judgment Approved by the court for handing down (subject to editorial corrections)
Introduction
In this appeal it is contended that two policies in the National Planning Policy Framework ("NPPF") were unlawfully dealt with by a local planning authority in determining an application for planning permission for a crematorium. The two policies are the policy for development in "areas at risk of flooding" and the policy for the "presumption in favour of sustainable development".
The appellant, Watermead Parish Council, appeals against the order dated 4 March 2016 of H.H.J. Waksman Q.C., sitting as a deputy judge of the High Court, dismissing its claim for judicial review of the planning permission granted by the respondent, Aylesbury Vale District Council, on 18 June 2015 for the construction of a crematorium and car park on land at Watermead, on the northern outskirts of Aylesbury. The applicant for planning permission was the interested party, Crematoria Management Ltd., the operating company of Westerleigh Group Ltd., a developer of crematoria and cemeteries. I granted permission to appeal on 16 August 2016.
The issues in the appeal
There are two main issues for us to decide. The first is whether the district council misunderstood NPPF policy for development in "areas at risk of flooding", in particular the policy for the "sequential test" in paragraphs 100 to 104, and failed to attend to the policy lawfully (ground 3). In resolving this issue we must consider whether we should take into account evidence in a witness statement of the district council's planning officer, Mr Michael Denman, who was the author of the committee report which recommended the grant of planning permission (ground 1). The second issue is whether the district council correctly understood and lawfully applied the policy for the "presumption in favour of sustainable development" in paragraph 14 of the NPPF (ground 2). By a respondent's notice, Crematoria Management contends that if any error of law is found in the district council's decision in either or both of those respects, the court should, in the exercise of its discretion, decline to quash the planning permission.
NPPF policy for development in "areas at risk of flooding"
In section 10 of the NPPF, "Meeting the challenge of climate change, flooding and coastal change", paragraph 99 says that "Local Plans should take account of climate change over the longer term, including factors such as flood risk …", that "[new] development should be planned to avoid increased vulnerability to the range of impacts arising from climate change", and that "[when] new development is brought forward in areas which are vulnerable, care should be taken to ensure that risks can be managed through suitable adaptation measures …". The policies with which we are concerned here are in paragraphs 100 to 104:
"100. 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. … Local Plans should apply a sequential, risk-based approach to the location of development to avoid where possible flood risk to people and property and manage any residual risk, taking account of the impacts of climate change, by:
• applying the Sequential Test;
• if necessary, applying the Exception Test;
…
• using opportunities offered by new development to reduce the causes and impacts of flooding; …
…
….
101. 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.
102. 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. For the Exception Test to be passed:
• it must be demonstrated that the development provides wider sustainability benefits to the community that outweigh flood risk, informed by a Strategic Flood Risk Assessment where one has been prepared; and
• a site-specific flood risk assessment must demonstrate that 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.
Both elements of the test will have to be passed for development to be allocated or permitted.
103. 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 assessment 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.
104. 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."
A footnote explaining the requirement for "a site-specific flood risk assessment" in paragraph 103 (footnote 20) says that such an assessment is required for, among others, "proposals of 1 hectare or greater in Flood Zone 1", and "all proposals for new development (including minor development and change of use) in Flood Zones 2 and 3". A footnote to the second sentence of paragraph 104 (footnote 22) states:
"Except for any proposal involving a change of use to a caravan, camping or chalet site, or to a mobile home or park home site, where the Sequential and Exception Tests should be applied as appropriate."
The Planning Practice Guidance ("PPG"), first issued by the Government in March 2014, includes a section on "Planning and Flood Risk". Under the heading "What is the general planning approach to development and flood risk?", paragraph 7-001-20140306 states that "[the NPPF] sets strict tests to protect people and property from flooding which all local planning authorities are expected to follow", that "[where] these tests are not met, national policy is clear that new development should not be allowed", and that "[the] main steps … 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". In a section on "The sequential, risk-based approach to the location of development", under the heading "What is the sequential, risk-based approach to the location of development?", paragraph 7-018-20140306 says that "[the] 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", and that "[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". Guidance on the sequential test is given in a section on "The aim of the Sequential Test", in which paragraph 7-019-20140306 states:
"The Sequential Test ensures that a sequential approach is followed to steer new development to areas with the lowest probability of flooding. The flood zones as refined in the Strategic Flood Risk Assessment for the area provide the basis for applying the Test. 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 (areas with a high probability of river or sea flooding) be considered, taking into account the flood risk vulnerability of land uses and applying the Exception Test if required."
A later section, on "Applying the Sequential Test to individual planning applications", explains in paragraph 7-034-20140306, under the...
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