“Many waters cannot quench [housing], neither can floods drown it”

Flood risk remains a key issue in planning policy and decision-making, the core element of which is the ‘sequential test’. The aim of the sequential test is to avoid, where possible, flood risk to people and property. It provides that new development is to be steered to areas with the lowest risk of flooding, and that development proposals should not be located in areas at risk of flooding where alternative sites, appropriate for the development, are reasonably available in areas with a lower risk of flooding.

Where the sequential test establishes that it is not possible for development to be located in areas with a lower risk of flooding, the exception test applies. At the time of the decisions discussed in this article, this required demonstrating that both:

a) the development would provide wider sustainability benefits to the community that outweigh the flood risk; and

b) the development will be safe for its lifetime taking account of the vulnerability of the users, without increasing flood risk elsewhere, and, where possible, will reduce flood risk overall. [1]

The approach to flood risk has seen renewed attention in recent years, the two cases discussed in this article follow on from the Court of Appeal’s decision in Mead Realisations Ltd v Secretary of State for Housing, Communities and Local Government [2025] EWCA Civ 32; [2025] 1 P.&C.R. 16 which established that a failed sequential test is not automatically fatal to a planning application.

The cases discussed in this article were concerned with the pre-August 2026 version of the NPPF. “Managing Flod Risk and Coastal Change” is now its own Chapter, Chapter 18 with a number of changes made to both the sequential and exception tests. This article does not address the substance of these changes though there seems little doubt that the High Court will be required to in future.

Faversham [2026] EWHC 1651 (Admin)

This was a challenge to the decision of a planning Inspector dated 27 June 2025 granting planning permission for up to 250 dwellings at a site on the edge of Faversham, Kent. Most of the site lay in Flood Zone 1, and it was common ground that without mitigation measures some parts of the site were at risk of flooding under the appropriate climate change scenarios. The developer had not undertaken a sequential test. By the end of the inquiry, it also appeared to be common ground that with the mitigation measures proposed the development would be safe from flooding for its lifetime.

The Inspector determined that a sequential test was required and that the exception test was not engaged as it could only be carried out after a proper sequential test had been undertaken. He went on, nonetheless, to grant planning permission, noting that:

• The failure to perform a sequential test was a fundamental breach of planning policy.
• The tilted balance was engaged and footnote 7 of the NPPF made clear that areas at risk of flooding are counted as assets of particular importance.
• There was, however, no real-world harm from either the failure to undertake a sequential test for tidal flooding or the failure to properly undertaken a sequential approach. It having been demonstrated that mitigation measures could make the development safe or its lifetime. There would also be no real-world surface water flood risk.

He concluded “Overall, and particularly because of the importance and weight to be applied to the proposed housing, the adverse impacts of the proposal would not significantly and demonstrably outweigh the benefits of the proposal. The appeal should therefore be allowed”.

The Inspector’s decision was challenged by Faversham Town Council on four grounds:

• Ground One – the Inspector erred in law by “in effect” applying the Exception Test in NPPF [177] contrary to the terms of the NPPF;
• Ground Two – the Inspector was Wednesbury irrational in taking into account the mitigation measures in determining that the development could be made safe from flooding;
• Ground Three – the Inspector erred in his approach to a “strong reason” in [11(d)(i)] of the NPPF;
• Ground Four – the Inspector failed to apply the principles of consistency in decision making in relation to a number of previous decision letters.

Lieven J dismissed the Town Council’s claim.

On grounds 1 and 2 she concluded that the Inspector had not erred in law as alleged or at all. He had correctly interpreted the NPPF – there was a requirement for the sequential test, and that the failure to carry it out was a conflict which he gave significant weight. He further made clear that the exception test should not be carried out. The Inspector went on to balance the serious conflict with the NPPF against other material considerations and was entitled to depart from the NPPF and give the provision of new housing substantial weight. She determined that the Inspector had, plainly, not applied the exception test, rather:

“he gave weight to a number of factors that would also have arisen under the Exception Test, including the fact that mitigation measures would make the site safe from flooding and there were reasons other than flooding that result in the land raising measures. The lack of real-world harm was a material consideration. None of these were matters that the Inspector was not entitled to take into consideration.” [44]

There was also nothing irrational or showing a serious logical error about the Inspector concluding that given the lack of real-world harm, and the significant benefits of the development, the planning balance was in favour for the grant of permission.

On ground 3, Lieven J concluded that the question of whether the breach of flooding policy gave a strong reason for refusal was “a classic planning judgement for the Inspector” [59]. She went on to note at [61] that:

“If the Inspector had been trying to lay down a universal approach in DL101 that a strong reason must always involve real world harm, rather than a breach of policy, then that would be wrong. However, reading the DL as a whole and being fair to the Inspector, that is plainly not what he was doing.”

With respect to ground 4, the Inspector had taken into account the previous Inspectors’ decisions however they did not fall within the category of case where the Inspector had to give any further reasons for explaining why he did not refuse permission on the grounds of departure from the sequential test

Yatton [2026] EWHC 1430 (Admin)

In Yatton, Jefford J considered a challenge to the decision of a planning Inspector on 18 March 2025 to grant outline planning permission for 190 homes on land at Yatton, Somerset in flood zone 3a.

The developer had a previous application for the Scheme refused in June 2023 after a planning Inspector found it had failed the sequential test. The developer brought a claim for statutory review of the decision that was dismissed by Holgate J in Mead [2024] EWHC 279 (Admin). [2]

The developer subsequently submitted an updated sequential test assessment and an opinion from Lord Banner KC that Holgate J’s decision made it clear that a failure to comply with the sequential test was not automatically fatal to a planning application, either within the parameters of the NPPF or having regard to the material considerations under s.38(6) of the Planning and Compulsory Purchase Act 2004.

The Inspector determined that the sequential test was not passed as there were 12 sequentially preferable sites. Again, as in Faversham, the Inspector noted that a failure to comply with the sequential test was not automatically fatal to a planning application, but he gave significant weigh to this failure. He also determined that the proposed houses would be safe from flooding during the lifetime of the development. The proposed means of access from the south, which could be secured by a condition, would provide a safe route to and from the site during a flood event and that the proposal would not increase the risk of flooding elsewhere. The tilted balance was engaged due to the housing land supply position. On balance the Inspector concluded that “the adverse effects do not significantly and demonstrably outweigh the benefits. The Framework therefore indicates that permission should be granted. This is a factor which outweighs the conflict with the development plan that I have identified.”

The Inspector’s decision was challenged by North Somerset District Council on two grounds:

• Ground (1): The Inspector misunderstood and misapplied the First Defendant’s policy by applying the exception test notwithstanding the proposal had failed the sequential test and local and national policy would [not] rule out the development of sequentially preferable sites.
• Ground (2) The Inspector’s conclusion that the development could be made safe for its lifetime is (a) irrational, alternatively (b) not supported by any or any adequate reasons.

On ground 1, the claimant’s claim was, in essence, that the Inspector in “reality did what both the NPPF and PPG tell him not to do, that is treat the exception test as a material consideration, and thus improperly diminished the weight that he gave to the failure of the sequential test” [52]. Jefford J dismissed this argument, nowhere did the Inspector say he was applying the exception test “what he, in fact, did was take the factors that form the limbs of the exception test into account as material considerations in the planning balance” [54], which he was fully entitled to do.

With respect to the continued relevance of the matters covered by the exception test where it did not apply, Lieven J stated:

“If the matters covered by the widely framed exception test ceased to be material considerations once the sequential test was failed – “the remaining material considerations would be severely restricted to the point where it is difficult to see what would be left. The effect would be to render the failure to pass the sequential test a bar to the grant of permission.” [58]

…

“…The NPPF and PPG state nowhere in terms that if the exception test is not reached, the matters that form the limbs of the exception test should not be taken into account.” [65]

…

“Having found the sequential test to have been failed, he went on to consider other material considerations and weigh those in the planning balance. As I have said, the argument that the Inspector somehow took account of the product of the exception test (which was not open to him) rather than the material considerations (which were) seeks to draw a distinction without a difference.” [68] Emphasis added.

Ground 2 was also dismissed; the Inspector’s conclusions were neither irrational nor inadequately reasoned.

Comment

Flood risk, and the approach to the sequential and exemption tests are likely to remain a hotly contested issue. From a developer perspective these decisions are clearly positive. In Faversham the High Court upheld a practical ‘real-world’ approach to flood risk, and in both cases Lieven J and Jeffords J endorsed the principle that flows from Mead that a failed sequential test is not a knockout blow to an application or appeal. The conclusion of both is that even where the sequential test is failed or a sequential assessment is not carried out, the application or appeal must be considered in the round on its planning merits, this may include assessing material considerations covered by the exception test even if the test itself is not engaged.

Both decisions have also been subject to criticism, primarily that they erode the importance and effectiveness of the sequential test. The Town and Country Planning Association published a briefing note in September 2025, after the Inspectors’ decisions but prior to the High Court decisions, which expressed concern that they represent “a backward step in the interpretation of flood risk policy for planning.” [3] The High Court’s decision in Yatton has faced the most significant criticism including by the All-Party Parliamentary Group on Flooding and Flooded Communities which has called for changes to the NPPF to reinforce the sequential test. Whether any changes are forthcoming remains to be seen. Albeit given the recently published new NPPF it seems, perhaps, unlikely that significant amendments will be made in the short term.

This article was first published in the 39 Essex Chambers Planning, Environment and Property Newsletter and was written by Christopher Moss, one of the contributing barristers.

[1] The exception test has been modified in the August 2026 version of the NPPF, Policy F6 states that the exception test requires three criteria to be met, that the development will: “i. Provide wider sustainability benefits to the community that outweigh the flood risk; ii. Be safe for its anticipated lifetime in accordance with policy F7; and iii. Not increase flood risk elsewhere and, where possible, reduce flood risk overall.”

[2] Whose decision was upheld by the Court of Appeal [2025] EWCA Civ 32, [2025] 1 P. & C.R. 16

[3] Town and Country Planning Association, ‘A dangerous precedent for flood risk policy’, (September 2025), (accessed on 18 October 2026).