ON APPEAL FROM THE ADMINISTRATIVE COURT
H.H.J. WAKSMAN Q.C.
Strand, London, WC2A 2LL
B e f o r e :
Lord Justice Lindblom
| Watermead Parish Council
- and -
| Aylesbury Vale District Council
- and -
|Crematoria Management Ltd.
Ms Clare Parry (instructed by HB Public Law) for the Respondent
Mr David Elvin Q.C. and Mr Alex Goodman (instructed by Clarke Willmott LLP)
for the Interested Party
Hearing date: 22 November 2016
Further submissions received: 22, 28 and 29 November 2016
Crown Copyright ©
Lord Justice Lindblom:
The issues in the appeal
NPPF policy for development in "areas at risk of flooding"
"100. Inappropriate development in areas at risk of flooding should be avoided by directing development away from areas at highest risk, but where development is necessary, making it safe without increasing flood risk elsewhere. Local Plans should apply a sequential, risk-based approach to the location of development to avoid where possible flood risk to people and property and manage any residual risk, taking account of the impacts of climate change, by:
- applying the Sequential Test;
- if necessary, applying the Exception Test;
- using opportunities offered by new development to reduce the causes and impacts of flooding;
101. The aim of the Sequential Test is to steer new development to areas with the lowest probability of flooding. Development should not be allocated or permitted if there are reasonably available sites appropriate for the proposed development in areas with a lower probability of flooding. The Strategic Flood Risk Assessment will provide the basis for applying this test. A sequential approach should be used in areas known to be at risk from any form of flooding.
102. If, following application of the Sequential Test, it is not possible, consistent with wider sustainability objectives, for the development to be located in zones with a lower probability of flooding, the Exception Test can be applied if appropriate. For the Exception Test to be passed:
- it must be demonstrated that the development provides wider sustainability benefits to the community that outweigh flood risk, informed by a Strategic Flood Risk Assessment where one has been prepared; and
- a site-specific flood risk assessment must demonstrate that the development will be safe for its lifetime taking account of the vulnerability of its users, without increasing flood risk elsewhere, and, where possible, will reduce flood risk overall.
Both elements of the test will have to be passed for development to be allocated or permitted.
103. When determining planning applications, local planning authorities should ensure flood risk is not increased elsewhere and only consider development appropriate in areas at risk of flooding where, informed by a site-specific flood risk assessment following the Sequential Test, and if required the Exception Test, it can be demonstrated that:
- within the site, the most vulnerable development is located in areas of lowest flood risk unless there are overriding reasons to prefer a different location; and
- development is appropriately flood resilient and resistant, including safe access and escape routes where required, and that any residual risk can be safely managed, including by emergency planning; and it gives priority to the use of sustainable drainage systems.
104. For individual developments on sites allocated in development plans through the Sequential Test, applicants need not apply the Sequential Test. Applications for minor development and changes of use should not be subject to the Sequential or Exception Tests but should still meet the requirements for site-specific flood risk assessments."
A footnote explaining the requirement for "a site-specific flood risk assessment" in paragraph 103 (footnote 20) says that such an assessment is required for, among others, "proposals of 1 hectare or greater in Flood Zone 1", and "all proposals for new development (including minor development and change of use) in Flood Zones 2 and 3". A footnote to the second sentence of paragraph 104 (footnote 22) states:
"Except for any proposal involving a change of use to a caravan, camping or chalet site, or to a mobile home or park home site, where the Sequential and Exception Tests should be applied as appropriate."
"The Sequential Test ensures that a sequential approach is followed to steer new development to areas with the lowest probability of flooding. The flood zones as refined in the Strategic Flood Risk Assessment for the area provide the basis for applying the Test. The aim is to steer new development to Flood Zone 1 (areas with a low probability of river or sea flooding). Where there are no reasonably available sites in Flood Zone 1, local planning authorities in their decision making should take into account the flood risk vulnerability of land uses and consider reasonably available sites in Flood Zone 2 (areas with a medium probability of river or sea flooding), applying the Exception Test if required. Only where there are no reasonably available sites in Flood Zones 1 or 2 should the suitability of sites in Flood Zone 3 (areas with a high probability of river or sea flooding) be considered, taking into account the flood risk vulnerability of land uses and applying the Exception Test if required."
A later section, on "Applying the Sequential Test to individual planning applications", explains in paragraph 7-034-20140306, under the sub-heading "Who is responsible for deciding whether an application passes the Sequential Test?":
"It is for local planning authorities, taking advice from the Environment Agency as appropriate, to consider the extent to which Sequential Test considerations have been satisfied, taking into account the particular circumstances in any given case. The developer should justify with evidence to the local planning authority what area of search has been used when making the application. Ultimately the local planning authority needs to be satisfied in all cases that the proposed development would be safe and not lead to increased flood risk elsewhere."
Paragraph 7-035-20140306, under the heading "When should the Exception Test be applied to planning applications?", says that "[the] Exception Test should only be applied following application of the Sequential Test". The meaning of ""minor development" in relation to flood risk" is explained in paragraph 7-046-20140306, which refers to three types of "minor development", namely: "minor non-residential extensions", which are defined as "industrial/commercial/leisure etc. extensions with a footprint less than 250 square metres"; "alterations", which are defined as "development that does not increase the size of buildings, [e.g.] alterations to external appearance"; and "householder development", such as "sheds, garages, games rooms [etc.] within the curtilage of the existing dwelling, in addition to physical extensions to the existing dwelling itself ".
Crematoria Management's flood risk assessment
"Section [sic] 104 of [the] NPPF refers to changes of use and states that these should not be subject to the Sequential Test or Exception Test, which replaces the requirements of Table 3 in the [technical guidance for the NPPF]."
The Preliminary Flood Risk Assessment was sent to the Environment Agency for their comments. In a letter to Mr Onions dated 2 April 2014 they said this, under the heading "Sequential Test":
"The proposal is for a demolition and rebuild, which does not constitute a change of use. We understand that the built development will be located on the slopes of the hill mostly in Flood Zone 1 but partly within Flood Zone 3 and the access roads will be formed on the low lying land (Flood Zone 3b). Therefore, in compliance with national planning policy, the Sequential Test will need to be discussed with Aylesbury Vale District Council at the earliest possible opportunity.
We agree that this is classified as 'less vulnerable' development in the Technical Guidance to the NPPF and should the Sequential Test be passed, the build [sic] development would be appropriate in Flood Zone 3a providing the FRA demonstrates that it would not be at an unacceptable risk of flooding and will not increase flood risk elsewhere."
"Section [sic] 104 of [the] NPPF refers to changes of use and states that these should not be subject to the Sequential Test or Exception Test, which replaces the requirements of Table 3 in the [technical guidance for the NPPF]. The Agency does not consider this as a change of use, because it is the site not the building being reused, but it is considered to be relevant by the Developer, since there is such a dramatic benefit to the river bank conditions with the removal of the restaurant, which would not occur if this scheme was not to proceed."
A description of the proposal followed. The "proposed redevelopment [would] improve flood storage, [would] not significantly affect flood flow characteristics and [would] therefore not cause increased flood risk elsewhere", and "[run-off would] be attenuated to greenfield rates or less". So "[the] overall proposal would therefore be described as 'betterment'". In section 14, "Conclusions & Recommendations", under the heading "Need", it was said that the district council "has a stated need for a crematorium, and sites are not easy to find". Under the heading "Policy", it was contended that "[this] change of use, and the category of use, is in harmony with the aims set down in the NPPF".
How did the district council deal with NPPF policy for development in "areas at risk of flooding"?
"9.40 The NPPF at Section 10, "Meeting the challenge of climate change, flooding and coastal change" advises at paragraph 99 that new development should be planned to avoid increased vulnerability to the range of impacts arising from climate change. When new development is brought forward in areas which are vulnerable, care should be taken to ensure that risks can be managed through suitable adaptation measures. Paragraph 100 recommends a sequential, risk-based approach to the location of development to avoid, where possible, flood risk to people and property.
9.41 A Flood Risk Assessment was submitted with this application. The site is adjacent to the River Thame, within an area liable to flood. Initially, the proposal gave rise to objection from EA, however following a lengthy process of negotiation, the developers have amended the scheme to satisfy EA requirements in relation to flood risk (both on the site and elsewhere) and ecology. The proposal relates to an already developed site, and therefore a sequential assessment is unnecessary. Subject to amendments and additional information as recommended by EA, it is considered that the proposal would not give rise to increased flood risk. This is considered a neutral factor in the planning balance. However, in view of the fundamental importance of the flood risk issue, it is considered that the amended details of the flood compensation scheme, along with the addendum to the FRA, should be submitted and agreed prior to approval of the application."
"The report states (para 9.41) that [the Environment Agency] had indicated that the proposal is acceptable in principle in terms of flood risk both on site and elsewhere. It is noted that the site is an already developed site, and the proposal would not give rise to increased flood risk. The issue of the car park flooding at certain times of the year was addressed in debate at the meeting. The potential for the parking associated with the proposed use to be subject to flooding does not give rise to a new issue, but it is considered having regard to the changed character of the use, a condition to require the submission and approval of a scheme to regulate parking at times of flooding could be justified. This is not a new issue: the issues of flooding and parking were considered in detail by the Committee."
Did the district council deal lawfully with NPPF policy for development in "areas at risk of flooding"?
"60. I agree that if all the [report] had said was that the sequential test was unnecessary because on a site specific basis the flood risk would be sufficiently mitigated and would not increase flood risk elsewhere, that would be to put the cart before the horse. It would assume the sequential test has been applied in favour of development, and one goes to the next stage. But that is not the point, or certainly not the main point made by the [report] on the sequential test in paragraph 9.41, clarified, insofar as necessary, by [Mr Denman's] witness statement. The main point is tied to the fact of and the comparison with, the existing development and the scale of the new development, its relevant size and the fact of betterment."
In the judge's view, the district council was entitled "to consider whether the sequential test is really necessary where it is analogous to a case of minor development " (paragraph 61). He went on to say (in paragraph 62):
"62. The short point can be expressed in another way. If the proposed development goes elsewhere, [i.e.] there was another site which was preferable under the sequential test, then the flood risk at the proposed site constituted by the restaurant would remain as well. If the development proposed, on the other hand, stayed on that site the flood risk would be mitigated overall. And it would lessen the extent of development in flood risk areas. This is precisely the sort of case where a common sense view, applying planning judgment of flood risk policy, should allow for an exception to be made. It cannot be attacked as irrational or wrong in principle, and in context I think that the reasoning behind it is clear enough."
"52. So the Council was maintaining that the sequential test [in PPG25, "Development and Flood Risk"] can have no application in reality to the redevelopment of existing sites because it is beyond the Council's control. However it is now accepted by the Council that this is incorrect as a matter of law and that it is a misconception that PPG25 and the sequential test in PPG25 apply only to greenfield sites.
67. There is in any event a more fundamental flaw in the process by which the Committee arrived at its decision to grant planning permission in this case. It gives rise to a further reason why I am unable to conclude the Committee may be taken to have applied the sequential test. Reference has been made above to the opinion held by the Council that the sequential test in PPG25 applies only to applications for the development of Greenfield sites and has no application to previously developed land where there are historic use rights. This view was propounded by the Council in the Urban Capacity Study. It is now accepted by the Council that that view is erroneous . There was no attempt in the hearing before me to justify that previously held view.
68. However, it is clear that at the date of the grant of the planning permission with which we are concerned that erroneous view was held by the planning officials within the Council. Accordingly, they considered that the sequential test was simply not applicable to the decision before the Planning Committee in relation to this site. ."
"The proposal relates to an already developed site, and therefore a sequential assessment is unnecessary."
Mr Denman's witness statement
"The report indicates that a sequential assessment is unnecessary as the site is already developed. I did not deal extensively with the question of whether a sequential test is required because this was not an issue raised by any of the objectors and [the Environment Agency] had not raised an objection on this basis. ".
and, in paragraph 20:
"It did not seem to me that the NPPF specifically anticipated the situation before me, which was a case where there was an existing development on a site which was causing harm in flooding terms, and a proposed development which would reduce the flooding harm caused. It did not seem to me that having regard to the aims of the NPPF it was intended a Sequential Test should be required in this situation."
He says he was "supported in this view by the fact that in [his] judgment the development proposed was closely analogous to 'Minor Development'" (paragraph 21). He says that the "reference [in the PPG's definition of "minor development"] to minor non-residential extensions was particularly relevant"; that "the increase in enclosed footprint between the size of the Riviera restaurant and the size of the proposed crematorium was less than 250 square metres"; and that the fact that the restaurant "could be extended by 250 square metres in flood zone 3 without any requirement for a sequential assessment" (paragraph 23). He says he based his judgment that a sequential test was not required on what he "considered to be the aims of the NPPF", taking into account a number of factors: that the site was already developed; that the existing building the restaurant was entirely within Flood Zone 3 and would be replaced by the crematorium building on higher ground within Flood Zone 1; that the works within Flood Zone 3 would be minor changes in ground level, the replacement bridge over the River Thame, and compensation works to mitigate the impact of ground-raising within the flood plain; that both the restaurant and the crematorium were development in the "Less Vulnerable" category (paragraph 24a to d); that the Environment Agency were satisfied by the proposed compensation measures (paragraphs 24e and g); the definition of "minor development" in the PPG (paragraph 24f); and the fact that the Environment Agency "did not express the view that a sequential assessment should be carried out" (paragraphs 24g and 29). He says he did not accept the argument that a sequential assessment was unnecessary because the proposal was a "change of use", and emphasizes that the report "states that the proposal relates to an already developed site" (paragraph 25). Between the committee's decision to approve the proposal on 10 December 2014 and the grant of planning permission on 18 June 2015, "[none] of the objectors raised any concern about either the need for a sequential test or about the application of the presumption in favour of sustainable development" (paragraph 28). Finally, says Mr Denman, he "would assume that if [the Environment Agency] considered that a sequential test was required they would make that very clear to [the district council]" (paragraph 29).
NPPF policy for the "presumption in favour of sustainable development"
"14. At the heart of the National Planning Policy Framework is a presumption in favour of sustainable development, which should be seen as a golden thread running through both plan-making and decision-taking.
For decision-taking this means:
- approving development proposals that accord with the development plan without delay; and
- where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless:
- any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or
- specific policies in this Framework indicate development should be restricted."
Footnote 9 applies to the clause "specific policies in this Framework indicate development should be restricted", both in the part of the policy relating to "plan-making" and in the part relating to "decision-taking". It states:
"For example, those policies relating to sites protected under the Birds and Habitats Directives (see paragraph 119) and/or designated as Sites of Special Scientific Interest; land designated as Green Belt, Local Green Space, an Area of Outstanding Natural Beauty, Heritage Coast or within a National Park (or the Broads Authority); designated heritage assets; and locations at risk of flooding or coastal erosion." (my emphasis).
Footnote 10 applies to the phrase "For decision-taking this means". It states:
"Unless material considerations indicate otherwise."
How did the district council deal with NPPF policy for the "presumption in favour of sustainable development"?
"9.62 In this context, paragraph 14 of the NPPF requires that where the development plan is absent, silent or relevant policies are out of date, planning permission should be granted unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies of the NPPF taken as a whole.
9.63 It is considered that the proposal would constitute a sustainable form of development for which there are significant benefits, in terms of reducing overall travel times and distance and the delivery of an acknowledged local requirement. The proposed development gives rise to economic and social benefits. In terms of adverse impact these are in relation to the impact on the character of the site, the adjacent land and the settlement character of Watermead. These are weighed in the planning balance and it is considered this is a balanced judgment, but overall the adverse impacts of the proposal do not significantly and demonstrably outweigh the benefits."
The advice in paragraph 9.63 was replicated, almost verbatim, in the officer's delegated report of 18 June 2015.
Did the district council deal lawfully with NPPF policy for the "presumption in favour of sustainable development"?
"49. If [the district council] acted lawfully with regard to the sequential test question, it did not act unlawfully by applying the presumption in the way that it did in the passages already referred to, particularly in the beginning and at the end of the [report]. If, on the other hand, [it] acted unlawfully in connection with the sequential test, then the presumption could not resurface, but all that does is to provide a further ground of unlawfulness."
Lord Justice Patten