QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2 |
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B e f o r e :
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THE QUEEN ON THE APPLICATION OF THOMAS BATES & SON LIMITED | (CLAIMANT) | |
-v- | ||
SECRETARY OF STATE FOR TRANSPORT, LOCAL GOVERNMENT AND THE REGIONS (1) | ||
MALDON DISTRICT COUNCIL (2) | (DEFENDANTS) |
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Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR P COPPEL (instructed by the Treasury Solicitor) appeared on behalf of the FIRST DEFENDANT
The SECOND DEFENDANT was not represented and did not appear
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Crown Copyright ©
"30. I conclude that the Hall Road site is at high risk of tidal flooding. Although the developer is prepared to reinforce existing flood defences along this section of coastline and to install measures to deal with potential wave over-topping the sea wall to reduce flood risk, this would not remove the danger of flooding entirely. The site would remain at high risk of a 1 in 200 year tidal flood, and as such it should only be developed for housing if there are no other housing sites with a lower flood risk, that are reasonably available and meet other sustainable development objectives. From the evidence before me, I conclude that there is an adequate supply of housing land in the district; that this would meet the constrained targets for Maldon; that sufficient housing land would become available within the Structure Plan Period; and that the other available sites are sustainable in terms of their location and accessibility.
"31. The proposed development meets the general planning criteria regarding settlement policy, the conservation area, traffic and transport, but the high risk of flooding of this site remains an obstacle to its future development. It is not a site that should be brought forward for development ahead of other safer areas, and therefore in the absence of a clear need for the use of this site for housing at this point in time, I conclude that planning permission should be withheld. For the reasons given above and having regard to all other matters raised, I conclude that the appeal should be dismissed."
"The Government expects local planning authorities to apply a risk-based approach to the preparation of development plans and their decisions on development control through a sequential test. Developers seeking sites for housing and other development should also have regard to this test. Accordingly, in drawing up or revising policies in development plans and in considering applications for development in cases where plans do not yet reflect the following, local planning authorities should give priority in allocating or permitting sites for development, in descending order to the flood zones set out in Table 1, including the sub-divisions in Zone 3. When allocating land in development plans or deciding applications for development at any particular location, those responsible for the decision would be expected to demonstrate that there are no reasonable options available in a lower-risk category, consistent with other sustainable development objectives."
"These areas may be suitable for residential ... development provided the appropriate minimum standard of flood defence (including suitable warning and evacuation procedures) can be maintained for the lifetime of the development (see paragraph 31 below), with preference being given to those areas already defended to that standard."
"(a) All risks relate to the time at which a land allocation decision is made or an application submitted. The Environment Agency will publish maps of these flood zones. Flood zones should be identified from Agency flood data ignoring the presence of flood defences. Local planning authorities should, with the Agency, identify those areas currently protected by defences and the standard of protection provided by those defences.
"(b) Development should not be permitted where existing sea or river defences, properly maintained, would not provide an acceptable standard of safety over the lifetime of the development, as such land would be extremely vulnerable should a flood defence embankment or sea wall be breached, in particular because of the speed of flooding in such circumstances (see paragraph 69 below)."
"In applying the sequential test, local planning authorities should consult and take the advice of the Environment Agency on the distribution of flood risk and the availability of flood defences in their areas. They should take account of the resulting level of actual risk in drawing up development plans and policies and considering proposals and applications for development."
"Further development on land protected by sea defences would be extremely vulnerable in the event of any overtopping or breaching of those defences because of the speed of flooding in such circumstances. A breach occurring as a result of a storm or a tidal surge, for example, might involve high risk of loss of life as well as extensive severe damage to and destruction of property. Planning authorities should take this risk fully into account when considering applications for development on such land, particularly in respect of single-storey developments with no means of escape to an upper floor. Subject to the sequential test in paragraph 30 and Table 1, such development should not be permitted where the existing flood defences, properly maintained and in combination with agreed warning and evacuation arrangements, would not provide an acceptable standard of safety."
"As PPG 25 explains, the assessment of flood risk includes both the statistical probability of a flood occurring and the scale of the possible consequences. The appeal site lies well within the high risk flood zone (3a in Table 1 of PPG 25), as it abuts the sea wall, and therefore, of all the available housing sites in the district, this land is most vulnerable to the greatest depth and speed of flooding in such a catastrophic event. Whilst other potential housing sites identified in the Urban Capacity Study also fall within the indicative tidal flood plain map of 0.5 per cent annual probability of occurrence, they are further away in terms of distance and height from the source of flooding and therefore relatively safer, when compared to the appeal site."
"The appeal site has a general ground level of 3.2 m AODN. Furthermore, the appeal site lies directly adjacent to the Tidal River Blackwater and immediately behind the sea defences. There is, therefore (in catastrophic circumstances), the potential for the site to be inundated to a flood depth of 1.63m. Paragraph 69 and Note (b) to Table 1 of PPG 25 specifically state that such sites situated behind defences would be 'extremely vulnerable' should flood [sic] those defences be breached because of the speed of flooding in such circumstances. The proximity to the defence and physical level of the site would certainly appear representative of the concerns raised by these statements and when compared to those other sites in the UCS within the High Risk Zone might be considered more vulnerable than the others."
"It is agreed that the appeal site falls within the low-lying part of Heybridge, within the tidal flood plain of the Blackwater Estuary, which is subject to high flood risk of a 1 in 200 year tidal flood. The Environment Agency is satisfied that the appellants' proposed flood management measures for the scheme, contained in the Flood Risk Assessment, would be sufficient to accommodate the flooding that might otherwise occur due to overtopping of the consolidated level of the sea wall defences, during the lifetime of the proposed development. It is also accepted that the appellants' sea wall breach analysis demonstrates that a 25m breach of the sea wall during a surge tide cycle would result in only a temporary 150mm depth of flooding across the appeal site as the flood water would run off into the low-lying gravel pits."
"In carrying out the flood risk sequential test, it is only necessary to consider whether there are alternative housing sites in less flood risk areas that are also reasonably available and sustainable in planning terms. In my view, this process would not lead to the rejection of all other sites that are considered to be less sustainable than the appeal site for reasons other than flooding. The Council's assessment of housing availability to fulfil Structure Plan requirements demonstrates that there is sufficient land availability within urban boundaries, and the Environment Agency considers that all of the other identified sites would be at less flood risk than the appeal site, despite some of them also falling within the flood plain."