Development — Flood plain — Local development plan — Inspector’s approach –Whether inspector required to take account of existing flood defences — Application granted
The claimant firm owned a site of approximately 6.6ha. It applied, together with a developer, for planning permission to remove 119 seasonal, wooden weekend chalets and to construct 124 dwellings in their place, with public open space and landscaping. The site was situated close to an estuary, which was bounded to the south by sea-wall flood defences, to the north by a canal and to the east by lakes. The indicative flood-plain map in PPG 25 designated the land as a zone 3 site. The proposed scheme included flood-mitigation measures that were subsequently agreed in principle with the Environment Agency, which had withdrawn its initial holding objection.
The planning application was refused by the second defendants and the claimant appealed pursuant to section 78 of the Town and Country Planning Act 1990 to the first defendant. Following a public inquiry, the inspector dismissed the appeal, but the same inspector reconsidered the matter solely on the issue of flooding. The appeal was dismissed on the basis that the proposed residential development would be subject to an unacceptable risk of tidal flooding. That decision turned solely on the application of the sequential test set out in paras 30 and 31 and Table 1 of PPG 25: Development and flood risk.
The claimant applied to quash the decision pursuant to section 288 of the 1990 Act. It contended, inter alia, that the inspector had failed to take into account the actual risk of flooding and the existing flood defences and had applied the sequential test solely on the basis of the flood plain map.
Held: The application was granted.
The inspector had properly applied the sequential test. Paragraph 30 and table 1 of PPG 25 required a precautionary approach when considering proposals for development in or affecting flood-risk areas. Priority had to be given to sites “in descending order to the flood zones set out in table 1”.
Where the development site fell within zone 3, the decision maker had to demonstrate that there was, within the local plan area, no reasonable alternative in a lower-risk category, consistent with other sustainable development objectives. Existing flood defences would become relevant only in the event that no reasonable alternatives were available. A zone 3 site would be preferred over another if it had flood defences.
However, on the evidence, the inspector had erred in law by failing to consider the existing sea defences for purposes other than the sequential test relating to the sustainability of the site. A decision maker was required to take a balanced, flexible approach and to account for the existence of flood defences as a material consideration when carrying out the overall balancing exercise.
Furthermore, the inspector had concluded that the site was highly susceptible to tidal flooding, without taking into account material evidence in the form of a flood-risk assessment; this had not been challenged by the second defendants. He had also failed to have regard to the unchallenged expert evidence before him as to the adequacy of existing defences. In the circumstances, the appeal would be quashed.
Anthony Dinkin QC (instructed by Holmes & Hill, of Braintree) appeared for the claimant; Philip Coppel (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendants did not appear and were not represented.
Eileen O’Grady, barrister
