“whether or not the proposal represents an acceptable form of development having regard to its flood zone location and the provisions of local and national planning policy;”
“Paragraph 177 [NPPF] is extremely clear that an exception test can only be carried out after a sequential test has been undertaken. It starts with “Having applied the sequential test”
“22. The area at risk of flooding in the design flood event is part of the main access road and future developable areas equivalent to circa 20 homes. The main vehicular access is obviously an important element of the site. However, it is relevant that less than 10% of the proposed homes would be in areas at risk of future flooding. In addition, it has been demonstrated that the entire appeal site could be made safe from flooding by the land changing measures, and by raising the access road, amongst other flood resistance and resilience measures at the detailed design stage, such as small flood barriers, raised services etc. It has also been confirmed that the land changing measures have already been accounted for in the visual envelope as used as the baseline for the assessment of landscape character, as considered below. This could be controlled by condition(s).” 23. The reasons for the land changing measures are a material consideration as to the weight to be applied to not undertaking the sequential test. In this regard, there is need to remediate parts of the site, which is a former quarry. However, it is not currently known to what extent this is required or what effect this would have on the land levels after the works. It has therefore not been fully substantiated by the appellant that this is the only reason for the land changing, and it would certainly be convenient if the remediation just so happened to result in the minimum level needed to avoid flood risk. Nevertheless, remediation would form part of the reason for the land works. With regard to raising the access road for access to Ham Road, it has been demonstrated that this is required to provide suitable and safe access to the road. 24. The extent of pluvial flooding risk is relatively limited. It is from ponding on the site in existing depressions and similar factors. The depth of the flooding would be relatively shallow. There is no risk related to interrupting an off-site surface water flow path, or effects on other off-site properties. It is a fairly typical existing situation on an agricultural field. As part of the design detail for the proposal at reserved matters stages, the precise land levels, drainage solutions, and landscaping would all need to be considered. Given the limited nature of the existing and future surface water flood risk, designing out the flood risk could be comfortably accommodated as part of this natural detailed design process.”
“90. The appellant has failed to undertake a sequential assessment or to fully apply the sequential approach, both in relation to tidal and surface water flooding. However, as also set out above, there would be no real world harm as a result of the proposal, because the proposed mitigation works would mean that no areas of the proposed development in its final form would be at risk of flooding in the design flood event, or from surface water. Overall, though, and consistent with previous appeal decisions, I nevertheless place significant weight on this factor, which remains in conflict with the Framework and local policy and represents a departure from the over-arching spatial planning requirement to direct inappropriate development away from areas at risk of flooding.”
“99. The failure to perform a sequential test with regard to both tidal and pluvial flooding is a fundamental breach of planning policy, even if there are no real world effects as a result. The proposal also represents a departure from the adopted spatial strategy of the Council. The current housing land supply situation of the Council means that some departures from this strategy are inevitable, which lessens the weight to be applied to this conflict. Nevertheless, the importance of a plan-led system is a thread which runs through planning policy. This should be respected, and the departure is an important conflict to weigh in the planning balance. In addition, as set out above, I place moderate weight on the loss of BMV, and there are further harms with regard to character and appearance, existing ecology, construction traffic, heritage and the informal footpath. Taken together, and despite the package of benefits as set out above, these harms represent a conflict with the Development Plan when read as a whole. 100. Applications for planning permission must be determined in accordance with the Development Plan unless material considerations indicate otherwise, in accordance withs38(6) of the Planning and Compulsory Purchase Act 2004 .The Framework is an important material consideration. As set out above, the Council cannot demonstrate a five-year supply of housing land. Therefore, as set out at Paragraph 11d and Footnote 8 of the Framework, the ‘tilted balance’ as set out at Paragraph 11dii is engaged unless the application of policies in this Framework that protect areas or assets of particular importance provide a strong reason for refusing the development proposed. 101. Footnote 7 confirms that areas at risk of flooding are counted as assets of particular importance. Although the proposal has failed to perform the required sequential tests, there would be no real world effects after mitigation is taken into account. A ‘strong’ reason for refusal based on flooding must, to my mind, go beyond mere technical conflicts, even if they are important. There must be substantive risks and harms that go beyond policy. I do not, therefore, view this as a strong reason for refusing the development proposed. For the avoidance of doubt, I also do not view the minor harms to heritage assets as representing a strong reason for refusal, or even a reason for refusal at all, as set out in my heritage balance section above. The ‘tilted balance’ is therefore engaged. 102. In this regard, the benefits of the proposal are many and weighty. It would provide a reasonably substantial housing development in a Borough with a lack of a five-year supply of housing land. There would also be benefits to the economy, BNG, public open space, off-site flooding, contaminated land and an electric car club. 103. With regard to Paragraph 14 of the Framework, the FNP became part of the Development Plan within the past five years. However, it contains policies and allocations that would only meet a housing requirement that does not accurately reflect up-to-date housing need, as set out above. The conflict with the FNP is also limited to Policy FAV7 with regard to BMV which is an inevitable loss when considered in the round, and FAV2 with regard to spatial strategy but only with regard to its overarching objectives rather than specifics parts of the policy. In this circumstance, therefore, the adverse impacts of the conflicts with FNP do not significantly and demonstrably outweigh the benefits. 104. Overall, and particularly because of the importance and weight to be applied to the proposed housing, the adverse impacts of the proposal would not significantly and demonstrably outweigh the benefits of the proposal. The appeal should therefore be allowed.”
“170. 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. … 173. A sequential risk-based approach should also be taken to individual applications in areas known to be at risk now or in future from any form of flooding, by following the steps set out below. 174. Within this context 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. 175. The sequential test should be used in areas known to be at risk now or in the future from any form of flooding, except in situations where a site-specific flood risk assessment demonstrates that no built development within the site boundary, including access or escape routes, land raising or other potentially vulnerable elements, would be located on an area that would be at risk of flooding from any source, now and in the future (having regard to potential changes in flood risk)”
“What is the aim of the sequential approach? The 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. This means avoiding, so far as possible, development in current and future medium and high flood risk areas considering all sources of flooding including areas at risk of surface water flooding. Avoiding flood risk through the sequential test is the most effective way of addressing flood risk because it places the least reliance on measures like flood defences, flood warnings and property level resilience features. Even where a flood risk assessment shows the development can be made safe throughout its lifetime without increasing risk elsewhere, the sequential test still needs to be satisfied. Application of the sequential approach in the plan-making and decision-making process will help to ensure that development is steered to the lowest risk areas, where it is compatible with sustainable development objectives to do so, and developers do not waste resources promoting proposals which would fail to satisfy the test. Other forms of flooding need to be treated consistently with river and tidal flooding in mapping probability and assessing vulnerability, so that the sequential approach can be applied across all areas of flood risk. Paragraph: 023 Reference ID: 7-023-20220825 Revision date: 25 08 2022”
“Given the Borough Council was unable to demonstrate a five-year housing land supply, the tilted balance in paragraph 11(d)(ii) of the 2024 NPPF was engaged. Paragraph 11 of the 2024 NPPF [CB/162] provides (as relevant): “Plans and decisions should apply a presumption in favour of sustainable development. (a)…. (b)… For decision making this means: (c) approving development proposals that accord with an up-to-date development plan without delay; or (d) where there are no relevant development plan policies, or the policies which are most important for determining the application are out-of-date[FN8], granting permission unless: (i) the application of policies in this Framework that protect areas or assets of particular importance[FN7] provides a strong reason for refusing the Proposed Development proposed; or (ii) 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, having particular regard to key policies for directing development to sustainable locations, making effective use of land, securing well-designed places and providing affordable homes, individually or in combination[FN9].”
“The policies referred to are those in this Framework (rather than those in development plans) relating to … areas at risk of flooding or coastal change.”
“41. It is not necessary, in my view, to apply to the policy in paragraph 90 the label of “presumption”
“The application of the policy necessarily involves a balancing exercise in which any harmful effects of the proposed development on the AONB are given due weight, having regard to what the policy says, and any benefits of the proposal are set against them, leading to a conclusion, as a matter of planning judgment, on whether there is a “clear reason for refusing the development proposed”
“38 Under paragraph 11(d)(i), it is not enough that a footnote 6 policy, restrictive of development, is engaged. The policy in question must actually be applied (see R (Watermead Parish Council) v Aylesbury Vale District Council[2018] PTSR 43 , at para 45, and East Staffordshire Borough Council, at para 22(2)), and its application must provide a “clear reason for [refusal]”
“28 If my understanding of the advice the officer gave on the sequential test is correct, I think that advice was not a true reflection of government policy for development in “areas at risk of flooding” in paragraphs 99—104 of the NPPF. The sequential test is distinct from, and is to be applied prior to, the exception test, which involves a different exercise (see paras 4—5above). The aim of the sequential test, as paragraph 101 explains, is to “steer new development to areas with the lowest probability of flooding”
“At DL98 the Inspector finds a “clear reason” for refusal “in line with footnote 7” by the failure to undertake a Sequential Test. She does not weigh that departure from policy against the matters she has set out in the earlier paragraphs of the Planning Balance section. She appears to assume that because there is this departure and that it is capable of being a “clear reason” within footnote 7, that is the end of the matter. There is no explanation as to why that departure outweighs the other material considerations, as would be required by s.70(2) TCPA and s.38(6) PCPA. There is no balancing of that departure from the Development Plan, with the other policies such as on the delivery of housing, which accord with the Development Plan. There is no explanation as to why it amounts to a “clear reason” on the facts of the particular case. As I read DL98 the Inspector’s approach is that once she has found something which is capable of being a “clear reason” she then thinks that she does not need to balance the other factors. That is a clear error of law.”
“… [the] requirement for a sequential test is not triggered where it can be demonstrated, using a site-specific risk assessment, that no new development or access and egress route is proposed in an area of flood risk from any source. This assessment cannot rely on mitigation measures that would require active maintenance, as their effectiveness in mitigating flood risk cannot be guaranteed. This change will maintain standards of flood protection and make sure that local planning authorities continue to have appropriate information available to them when assessing applications, while making the application process more proportionate in these situations.”
“A change has also been made to be clear that when assessing whether areas or assets of particular importance provide a reason for refusal, there should be a ‘strong’ basis for doing so when assessed against the policies in the National Planning Policy Framework (replacing the existing ‘clear’ reason). This reflects views that we heard about opportunities to strengthen the presumption’s wording, in the context of the government’s commitment to increasing the supply of homes, but still enables these key protections to be fully considered and enforced where it is appropriate to do so.”
“30. The correct approach: Failure to perform a ST is a fundamental breach of national Policy and is, as Mr. Carpenter explained, a ‘showstopper’ in the circumstances set out immediately above. 31. That is entirely consistent with the plain wording of the PPG on this point, which provides that “the National Planning Policy Framework sets out strict tests to protect people and property from flooding which all local planning authorities are expected to follow. Where these tests are not met, new development should not be allowed,” and Mr. Lane agreed that the ST was a ‘strict’ test to which this guidance was directed. As above, Mr. Lane accepted that the NPPF directs that developments in breach of a requirement for a ST be refused, and he agreed with me that the position in policy was “unequivocal.””
“26. Recourse to the courts may sometimes be needed to resolve distinct issues of law, or to ensure consistency of interpretation in relation to specific policies, as in the Tesco case. In that exercise the specialist judges of the Planning Court have an important role. However, the judges are entitled to look to applicants, seeking to rely on matters of planning policy in applications to quash planning decisions (at local or appellate level), to distinguish clearly between issues of interpretation of policy, appropriate for judicial analysis, and issues of judgement in the application of that policy; and not to elide the two.”
“One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that: there is consistency in the appellate process. Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system. I do not suggest and it would be wrong to do so, that like cases must be decided alike. An inspector must always exercise his own judgment. He is therefore free upon consideration to disagree with the Judgment of another but before doing so he ought to have regard to the importance of consistency and to give his reasons or departure from the previous decision. To state that like cases should be decided alike presupposes that the earlier case is alike and is not distinguishable in some relevant respect. If it is distinguishable then it usually will lack materiality by reference to consistency although it may be material in some other way. Where it is indistinguishable then ordinarily it must be a material consideration. A practical test for the inspector is to ask himself whether, if I decide this case m a particular way am I necessarily agreeing or disagreeing with some critical aspect of the decision in the previous case? The areas for possible agreement or disagreement cannot be defined but they would include interpretation of policies, aesthetic judgments and assessment of need. Where there is disagreement then the inspector must weigh the previous decision and give his reasons for departure from it. These can on occasion be short, for example in the case of disagreement on aesthetics. On other occasions they may have to be elaborate.”
“Secondly, the court should not attempt to prescribe or limit the circumstances in which a previous decision can be a material consideration. It may be material, for example, because it relates to the same site, or to the same or a similar form of development on another site to which the same policy of the development plan relates, or to the interpretation or application of a particular policy common to both cases: see para 92 of Holgate J's judgment in the St Albans City and District Council case[2015] EWHC 655 .”
“65. It appears that the issues raised by ground 1 have been the subject of controversy in a number of planning appeals and that this has led to advocates and experts referring to various appeal decisions at public inquiries and hearings in support of rival positions. This is reminiscent of the “doctrinal controversy” concerning the “tilted balance” which afflicted so many planning appeals until the matter was settled by the Supreme Court in Hopkins[2017] PTSR 623 , paras 23 and 81 . This ought not to occur if national policies, particularly those expressed in high level or broad terms, are read in a straightforward manner to mean what they say, and not subjected to forensic manipulation (see eg R (Asda Stores Ltd) v Leeds City Council[2021] PTSR 1382 , para 35 ).”