How to apply NPPF policy and NPPG guidance on flood risk

May 18, 2016

Development and flood risk is an increasingly contentious subject, not least because of the severe flooding episodes that have occurred in various parts of the country in recent years.

The presumption in favour of sustainable development in paragraph 14 of the National Planning Policy Framework (‘the Framework’) does not apply where specific policies in the Framework indicate that development should be restricted. Among the examples of such policies are those relating to locations at risk of flooding. The relevant policies are set out at between paragraphs 100 and 104 of the Framework which are explained in further detail in the National Planning Practice Guidance. The thrust of the policies is that development should be directed away from areas of highest risk to areas of lower risk according to a so-called ‘sequential test’ and that in any event development should not be permitted if the effect is to increase the risk of flooding.

R(Watermead Parish Council) v Aylesbury Vale District Council [2016] EWHC 624 (Admin) concerned the decision of a local planning authority (‘LPA’) to permit the development of a crematorium on a site of a former restaurant. Whilst the restaurant building was sited within Flood Zone 3 (the zone of highest risk) the proposal was to demolish the building and construct the crematorium building on another part of the site on higher ground within Flood Zone 1 (the zone of lowest risk). There would be a resultant betterment in conditions and no increased risk of flooding elsewhere. The planning officer’s report advised that in the circumstances the ‘sequential approach’ did not apply and that the presumption in favour of sustainable development was engaged. The claimant challenged the grant of planning permission on the grounds that the sequential approach did apply (because at least part of the site was in Flood Zone 3) or alternatively it was necessary for the LPA to consider whether it applied before going on to consider the site-specific merits of the proposal. On either basis, it was contended, the presumption in favour of development was not engaged.

The Court found that the NPPF, being a statement of Government policy, was a ‘material consideration’ for the purposes of Section 38(6) of the 1990 Act and as such it was for the decision-maker to determine on rational grounds how much weight it should be given in the light of the surrounding circumstances. The decision-maker was not, in any case, bound to apply the NPPF slavishly or overly-legalistically and was entitled to consider, as a matter of planning judgment, whether there was a requirement to apply the sequential approach and find that as a matter of common sense it was un-necessary to do so where the development would result in benefits in terms of flood risk.

The Court further found that where the policies of the Framework relating to flooding were complied with, there were no grounds for the presumption in favour of sustainable development to be dis-applied. The claimant’s application for judicial review was dismissed.

In R(Menston Action Group) v (1) City of Bradford Metropolitan District Council (2) Chartford Developments Ltd  [2016] EWHC 127 (QB) it was contended that read as a whole the policies of the Framework relating to flooding not merely required development to avoid any increased risk of flooding but also required opportunities to be taken to reduce flood risk.

The case concerned a comparatively small residential development scheme of 12 units on a site which was shown by the Environment Agency’s flood map as within Flood Zone 1 (i.e. the zone of lowest risk). However local residents recalled that the site had been set aside as flood storage capacity when an earlier nearby residential development had been undertaken and the developer’s own flooding and drainage assessment conceded that because there was some piped discharge onto the site there was a likelihood of flooding during heavy rainfall and that there was evidence of flooding to a depth of 0.4m in such conditions. The scheme incorporated measures to prevent any increased risk of flooding and to protect the proposed dwellings against the impacts of flooding (such as setting the finished floor levels of dwellings at a level in excess of the highest predicted flood event). It was on that basis that the LPA granted planning permission for the development.

The Court held that the LPA had correctly applied the Framework’s policies by determining that the proposal would not lead to an increased risk of flooding, which is all that the Framework required.