High Court Clarifies Application of Sequential Test for Flood Risk in Planning Decisions

Citation: [2024] EWHC 279 (Admin)
Judgment on

Introduction

In the case of Mead Realisations Limited v The Secretary of State for Levelling Up, Housing and Communities & Anor, the High Court of Justice examined the interpretation and application of the sequential test for flood risk in the context of planning and development decisions. The case involved challenges under section 288 of the Town and Country Planning Act 1990 to decisions made by Inspectors dismissing appeals against refusals for residential developments. The legal principles applied revolved around the interpretation of planning policy as provided by the National Planning Policy Framework (NPPF) and the Planning Practice Guidance (PPG). This article provides an analysis of the key legal principles and issues in the case.

Key Facts

Two claims were in contention: Mead Realisations Limited’s proposal for development at Lynchmead Farm and Redrow Homes Limited’s development plans in Bushey. Both claims involved sites in flood risk areas and brought into question how the sequential test, which aims to steer new development to areas with the lowest risk of flooding, should be applied. This entailed an assessment of ‘reasonably available sites’, the ‘appropriate’ sites for the proposed development, and what consideration should be given to ‘need’ for a type of development and whether such need could be met on sequentially preferable sites.

The key legal principles discussed in the judgment were:

  1. Interpretation vs. Application of Policy: The Courts distinguish between the interpretation of policy, which is a question of law, and the application of policy, which involves the exercise of judgment and can only be challenged on rationality grounds.

  2. Status and Authority of NPPF and PPG: The NPPF and the PPG do not have the force of statute and are considered material considerations in planning decisions with guidance status. They derive their authority from the planning legislation, and changes to the NPPF can be made through WMS and PPG.

  3. Sequential Test: The sequential test in para.162 of the NPPF does not necessitate precise alignment between the timescales for an appeal scheme and alternative sites; matters of timing, type of development, and size of sites/capacity are generally left as a matter for judgment, with flexibility and realism being relevant considerations.

  4. Role of Need in Sequential Test: General housing needs of a district or a shortfall in meeting those needs are not factors that affect the carrying out of the sequential test itself but may inform the overall planning balance.

  5. Consistency of PPG with NPPF: The PPG can elucidate and clarify NPPF policy, and there is no legal basis suggesting that policy in the PPG cannot amend or be inconsistent with the NPPF.

  6. Development Plan Relativity: The weight given to development plan policies is relative to their degree of consistency with the NPPF. A conclusion of out-of-dateness can apply to a development plan that is inconsistent with the NPPF when read with the PPG.

  7. Treatment of New Arguments in Judicial Review: Generally, the Court should not entertain new arguments that were not raised during the initial planning process, honoring the principle of finality in administrative proceedings.

Outcomes

The High Court dismissed both challenges. It was concluded that the Inspectors did not err in law in their use of the PPG to interpret the NPPF. Moreover, the claimants failed to demonstrate that Inspectors’ judgments on matters such as the timing and the availability of alternative sites, or the necessity of meeting specific types of development needs when assessing sequential test, were irrational. Additionally, the new points raised by Redrow were not allowed to challenge the decision as they were not presented at the initial inquiry.

Conclusion

The judgment in Mead Realisations Limited v The Secretary of State for Levelling Up, Housing and Communities & Anor underscores the distinction between interpretation and application of planning policy in UK law. It confirms the authority of the NPPF and PPG in planning decisions and highlights the importance of flexibility and realism in applying the sequential test for flood risk. Furthermore, the Court reinforced the importance of presenting a full case during initial proceedings and the limited scope for raising new arguments on judicial review. This case clarifies the legal landscape for practitioners concerned with development in flood risk areas and the application of national planning policy.

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