Town and country planning – National Planning Policy Framework – Flood risk – Appellants challenging grant of planning permission for crematorium by respondents – Whether respondents erring in application of policy in paras 100 to 104 of NPPF for development in areas at risk of flooding – Whether wrongly failing to apply “sequential test” favouring sites with lowest risk of flooding – Whether erring in approach to presumption in favour of sustainable development in para 14 of NPPF – Appeal allowed
The interested party applied to the respondent district council for planning permission to build a crematorium and car park on previously developed land at Watermead on the northern outskirts of Aylesbury. The river Thame flowed through the site and the land fell partly within Flood Zone 3 and partly in Flood Zone 1. The appellant parish council objected to the application on food risk grounds. The interested party claimed that the development would in fact alleviate the existing risk of flooding both on the site itself and on neighbouring land.
The respondents granted planning permission after considering a report by their planning officer. The report indicated that there was an identified need for a new crematorium in the area; that the proposal related to an already developed site and therefore a “sequential assessment” to site selection was unnecessary; and that the proposal would not give rise to increased flood risk, subject to amendments and additional information as recommended by Environment Agency. The officer also advised that the proposal was a sustainable form of development for which there were significant benefits.
On a claim for judicial review of that decision, the appellants contended that the respondents had misunderstood and failed to apply the policy in paras 100 to 104 of the National Planning Policy Framework (NPPF) for development in areas at risk of flooding, which required the application of the sequential test favouring development in areas with the lowest probability of flooding.
They also argued that the respondents had erred in applying the presumption in favour of sustainable development in para 14 of the NPPF to the proposal. They submitted that, because the proposal was for development on a site at risk of flooding and was therefore subject to a restrictive policy in the NPPF, the effect of the second limb of para 14 for “decision-taking” was to withhold the presumption.
Those contentions were rejected in the court below: see [2016] EWHC 624 (Admin). The appellant appealed.
Held: The appeal was allowed.
(1) Read in context, the relevant part of the planning officer’s report advised that a sequential assessment was not required by NPPF policy because the site was “already developed”. The officer was not merely saying that, while NPPF policy normally required a sequential assessment, a departure from the policy was justified in the particular circumstances of the case.
The planning officer’s advice was not a true reflection of government policy for development in areas at risk of flooding in paras 99 to 104 of the NPPF. The aim of the sequential test was to steer new development to areas with the lowest probability of flooding. Where it applied, it involved an assessment of the availability of sites appropriate for the proposed development in areas with a lower probability of flooding. It was required not only for new development proposed on sites which had not previously been developed but also for new development on land that was already developed. Nor was it inapplicable to development that would reduce flood risk. The NPPF provided expressly for exemptions in para 104, which set out a general exemption for developments “on sites allocated in development plans through the Sequential Test” and two specific exemptions “minor development” and for “changes of use”. None of those exemptions applied in the instant case. To the extent that the planning officer was advising that, under NPPF policy, a sequential test was unnecessary because the proposal was for already developed site, that advice was based on a misinterpretation of the policy.
Even if that reading of the officer’s advice was incorrect, his advice on the sequential test was still flawed. While a local planning authority were free to depart from national planning policy, they had to do so consciously and for good reason. The officer had provided no adequate justification for a departure from the policy.
(2) In relation to the para 14 of the NPPF, there was an important question as to whether the exception for “specific policies” in the NPPF that “indicate development should be restricted” simply required a relevant restrictive policy to be in play if the presumption in favour of sustainable development was to be shut out, or, on the other hand, required the restrictive policy, once identified, actually to be applied before the decision-maker could ascertain whether the presumption was available to the proposal being considered.
That was an issue on which the court would benefit from receiving submissions on behalf of the secretary of state. It was not necessary to decide it in the instant case since the lawfulness of the respondents’ decision did not turn on the true interpretation of the policy in para 14. The planning officer had identified no “specific policies” in the NPPF that, in his view, indicated that development should be restricted. He did not specifically address the question of whether there were any such policies, and whether, for that reason, the presumption in favour of sustainable development did not apply. So far as he had erred in his understanding of NPPF policy for the sequential test, it followed that he was not in a position to advise the respondents on whether that was a policy which, in a relevant sense, indicated that “development should be restricted”. That was a second error of law, flowing from and compounding the first. The error vitiated the respondents’ decision regardless of whether the exercise required by para 14 was simply a matter of identifying a relevant restrictive policy or involved that restrictive policy actually being applied to the proposal in hand.
(4) It was not appropriate for the court to to refuse relief in the exercise of its discretion. The defects in the respondents’ decision were not insubstantial or inconsequential. If the respondents reconsidered the proposal and applied the sequential test to it in accordance with NPPF policy, then they might conclude, in the light of an up-to-date sequential assessment, that there was no sequentially preferable alternative site and that the proposal therefore complied with the policy for the sequential test. They might also conclude that the proposal earned the “presumption in favour of sustainable development” under the policy in para 14 of the NPPF, or that, even without the aid of that presumption, it should be approved. However, those were matters of fact and planning judgment for the respondents as local planning authority, directing themselves as they should on the relevant planning policies. They were not for the court in the exercise of its discretion as to the granting of relief. It was not possible for the court to say either that the same outcome would have been highly likely if the decision had been taken lawfully, or that the respondents were highly unlikely to reach a different conclusion on a reconsideration of the matter. There was a realistic prospect that the decision on redetermination would be different: R (on the application of the Environment Agency) v Tonbridge and Malling Borough Council [2006] 2 P&CR 29 considered.
Richard Kimblin QC (instructed by Schwab & Co Legal Services, of Aylesbury) appeared for the appellants; Clare Parry (instructed by HB Public Law, of Harrow) appeared for the respondents; David Elvin QC and Alex Goodman (instructed by Clarke Willmott LLP) appeared for the interested party.
Sally Dobson, barrister
Click here to read transcript: Watermead Parish Council v Aylesbury Vale District Council
