High Court clarifies the “Strong Reason” Test in relation to flooding
Lieven J has handed down judgment in R (Faversham Town Council) v SSHCLG & ors [2026] EWHC 1651 (Admin), the latest in a line of cases considering the correct approach to proposed development at risk of flooding. Of most interest is the clarification given to the meaning of the new wording paragraph 11(d) of the NPPF, where failure to undertake the sequential test can result in a “strong” reason for refusal.
Brief Summary
The challenge concerned outline permission granted on appeal for 250 dwellings at Ham Road, Faversham in Kent, which were at risk of future tidal flooding affecting the housing and access/escape from the site and surface water flooding affecting housing. Permission was granted despite the failure to carry out a sequential test (“ST”); a failure to which significant negative weight was attached. Nevertheless, the Inspector accepted that the development could be made safe and would not give rise to any “real world harm” from flood risk, and in the context of the overall planning balance, he concluded that the absence of a ST did not amount to a “strong reason” for refusal under paragraph 11(d) of the 2024 NPPF.
Key Findings
The 2023 NPPF had required there to be a “clear reason” for refusal. The word change to “strong reason” prompted discussion at the inquiry. The Inspector confirmed that areas at risk of flooding are counted as assets of particular importance but and went on to conclude that a strong reason for refusal “based on flooding must, to my mind, go beyond mere technical conflicts, even if they are important.”
Lieven J made clear that, had “the Inspector had been trying to lay down a universal approach … that a strong reason must always involve real world harm, rather than a breach of policy, then that would be wrong.” (§61). She held that was not the Inspector’s approach, and that he had instead balanced the specific factors relevant to the particular development in order to reach a conclusion about a lack of strong reason for refusal (§61).
As to the Inspector’s general approach to the lack of a ST, but still taking into account the lack of ‘real-world harm’ (usually the purview of the Exception Test, which can only be carried out after the ST), Lieven J held that the Inspector was entitled to depart from the NPPF, so long as he did so “consciously and for good reason” (§§32, 43 and 47).
The full judgement can be found here.
Instructed by Richard Buxton Solicitors, Estelle Dehon OBE KC and Simon Bell represented the Claimant.
