Claimants fail in Planning Court challenge to application of sequential test in national policy on flood risk

The High Court has rejected two conjoined cases brought against local authorities and the Secretary of State for Levelling Up, Housing and Communities over refusals of planning consent for failing to satisfy the flood risk sequential test in the National Planning Policy Framework (NPPF) and Planning Practice Guidance (PPG).

Mr Justice Holgate heard the cases, both of which were brought against the Secretary of State under s.288 of the Town and Country Planning Act 1990.

Land agent Mead Realisations’ case also had North Somerset Council as a defendant and concerned an application for 75 dwellings in Weston-Super-Mare, while Redrow Homes’ case was also against Hertsmere Borough Council over an application to build 310 homes in Bushey.

Claimants alleged that the inspectors concerned had misinterpreted both the NPPF and PPG.

In the Mead case it was argued the inspector erred in law because his reasoning involved treating para.028 of the PPG as having changed the objective meaning of the NPPF and of the core strategy.

Holgate J said in his judgment: “I see no possible legal error in the inspector's conclusion that the proposal conflicted with the first part of [local plan] policy CS3 because it conflicted with the sequential test in the NPPF read together with the PPG.

“It was not suggested by Mead that policy CS3 should be interpreted as referring solely to the 2012 version of the NPPF and ignoring any alterations to that document. So if the NPPF had been amended by including the text contained in para.028 of the PPG, Mead could have no legal complaint.”

He said no legal principle prevented the NPPF being altered by a written ministerial statement or PPG and “the inspector correctly treated the PPG as having elucidated the NPPF”.

In the Redrow case, the housebuilder argued the inspector's approach to sites smaller than the appeal site was legally flawed having without explanation departed from the approach in para. 162 of the NPPF, and para. 028 of the PPG by considering an alternative based on a number of smaller and unconnected sites.

Redrow said this meant she did not address its case that such an approach could not deliver the range of interconnected benefits which the appeal scheme would deliver.

It challenged the inspector's statement that the development of an alternative site did not necessarily have to follow the trajectory of start and build-out dates for the appeal scheme and said this did not accord with the NPPF read together with the PPG.

The judge said: “When the inspector dealt with the larger sites she criticised Redrow's evidence as lacking in detail on how long it might take for those sites to come forward and ‘whether this would be outside the expected timeframe for delivering the proposed development.’

“In other words, the inspector did not reject the timescale put forward by Redrow. The flaw in its case was the lack of evidence to show that alternative sites would take materially longer to come forward.”

Holgate J also rejected Redrow’s clam that the inspector failed in the application of para. 162 of the NPPF to have regard to housing need and the implications of failing to meet that need as this argument was not put before the inspector.

The judge said: “Redrow did not consider it to be material, let alone obviously material. It was not raised as a substantial issue between the parties. The inspector cannot be criticised for acting irrationally, or for failing to give reasons, in relation to an argument of this kind which the claimant did not see fit to rely upon at any stage in its appeal.”

Commenting on the case, barristers' chambers Francis Taylor Building, whose Hugh Flanagan acted for the Secretary of state, said: “The judgment also contains wider discussion of the legal status of national planning policy, the relationship between the NPPF and the PPG, and whether there is a sharp legal divide between the NPPF and the PPG which treats the former as policy and the latter as not.

“The judge noted that the PPG is intended to support the NPPF and ordinarily, therefore, it is to be expected that the interpretation and application of PPG will be compatible with the NPPF.

“However, the court observed that there is no legal justification for the suggestion that the Secretary of State cannot adopt PPG which amends, or is inconsistent with, the NPPF. The NPPF does not have some special legal status, the effect of which is to restrict the ability of the Secretary of State to change such national policy to an amendment made to the NPPF itself.”

Mark Smulian