The High Court has confirmed that planning practice guidance can be inconsistent with and amend the National Planning Policy Framework – and, also, provides some clarity on how alternative sites should be considered when there is a flood risk.
Mead Realisations Ltd v Secretary Of State For Levelling Up, Housing And Communities and another and Redrow Homes Ltd v Secretary Of State For Levelling Up, Housing And Communities and another [2024] EWHC 279 (Admin) centred on whether the sequential test set out in the in the Planning and Flood Risk chapter of the NPPF supersedes the PPG Flood Risk and Coastal Change.
The claimants argued the PPG cannot change what is said in the NPPF or impose more stringent requirements than the NPPF.
However, Mr Justice Holgate disagreed and stated: “PPG is intended to support the NPPF. Ordinarily, therefore, it is to be expected that the interpretation and application of PPG will be compatible with the NPPF.
“However, I see no legal justification for the suggestion that the Secretary of State cannot adopt PPG which amends, or is inconsistent with, the NPPF.”
The NPPF provides a sequential test should be carried out to steer development to areas with the lowest risk of flooding, and development should not be permitted if there are “reasonably available sites appropriate for the proposed development” with a lower risk of flooding.
This leaves open the question: what are reasonably available sites appropriate for the proposed development?
The PPG describes a “reasonably available” site as those in a suitable location with a reasonable prospect of being available at the time envisaged for the development and could include a series of smaller sites/part of a larger site.
When deciding if suitable, the location, type of development, size, timing and ownership issues can all be considered in the balance.
Also, if a series of smaller sites is to be considered, as envisaged in the PPG, there should be a relationship between the sites. Several disconnected sites across a local authority’s area would not be considered reasonable.
This judgment also clarified the “need” for the development can be relevant when considering alternative sites.
For example, if there is a need for a particular kind of development, that could limit the area of search the sequential test should cover and/or mean specific parameters can be built into the search, therefore further limiting which sites what be reasonable.
However, a general need for a type of use (housing, employment) will not be relevant when deciding whether other sites are sequentially preferable.
Claims by both claimants were dismissed and the earlier decisions to refuse planning permission for the sites upheld.
Elizabeth Mutter is a solicitor at Irwin Mitchell
