Flood risk: The sequential test and the relationship between PPG and NPPF
Cornerstone Climate, Planning and Environment, Public Law and Judicial Review, Local Government
Judgment has been handed down by Holgate J concerning the status of the Planning Practice Guidance (PPG) and providing guidance in relation to the application of the sequential test: R (Mead and Redrow) v SoS LUHC [2024] EWHC 279 (Admin).
The case concerned the approach to the sequential test set out in the Planning and Flood Risk Chapter of the National Planning Policy Framework (NPPF) compared with that set out in the recently updated PPG Flood Risk and Coastal Change Chapter (amended 25th August 2022).
The legal status of national planning policy
Holgate J held that the same fundamental legal principles on policy apply to both the NPPF and the PPG – the ability of the Secretary of State to adopt either derives from the same legal source of power (§62).
At §70, he held “As a matter of policy, 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 interpretation of the sequential test in the NPPF and the PPG
On the sequential test and in particular the relevance of alternative sites, Holgate J held:
- The issue of ‘need’ is not wholly irrelevant (§101) but only as regards need for the specific type of development proposed rather than a general need for a type of land use such as housing or employment (§102-105)
- The NPPF provision that alternative sites should be “reasonably available” includes a temporal dimension, but the NPPF does not require the that the availability of an alternative site should always align closely with the trajectory for the developer’s proposal (§106)
- A highly prescriptive interpretation of §162 NPPF was rejected and factors capable of being relevant considerations for assessment by a decision-maker as a matter of judgment identified
- There was no conflict between §162 NPPF and §028 PPG (§108)
- The PPG states that reasonably available sites may include “a series of smaller sites and/or part of a larger site if these would be capable of accommodating the proposed development.” Relevant factors for the decision-maker may include the type and size of development, location, ownership issues, timing and flexibility, and the case on need/market demand (§109).
- The word “series” connotes that there should be a relationship between sites proposed (§110).
On the facts, the decision of the Inspector in the Redrow appeal to dismiss an appeal against the refusal of planning permission for development at Land at Little Bushey Lane, Hertsmere was upheld.
Emmaline Lambert acted for Hertsmere Borough Council at the public inquiry in 2023 and in the High Court proceedings.
Read final judgment here.
