Tower Hamlets July 20 Composite 600

Slide background
Slide background
Slide background
Slide background
Slide background

Planning Court clarifies the approach to flooding and policy compliance

In the Planning Court Mr Justice Dove recently considered the reliance on Strategic Flood Risk Assessments (“SFRA”) when applying the sequential test under national policy; and reaffirmed the approach that ought to be taken when assessing policy compliance. Richard Harwood QC and Stephanie David analyse the outcome.

In R (Martin) v Folkestone and Hythe District Council [2020] EWHC 1614 (Admin) the defendant had granted planning permission in relation to a hybrid application for the development of Princes Parade, Hythe including outline permission for 150 residential units and full permission for a much-needed leisure centre. The proposed scheme was to be situated along the coast, immediately south of the Royal Military Canal (“the RMC”) – a Scheduled Ancient Monument – and so the practical application of the test under paragraph 196 of the National Planning Policy Framework (“NPPF”) therefore also fell for consideration. The decision was challenged by a local resident, Elaine Martin.

Flooding

The Court was asked to determine whether national and local plan policy required the sequential test to be applied based upon the Environment Agency (“EA”) Flood Zone maps or the local authority’s SFRA.

When the Flood Risk Assessment (“FRA”) was prepared for the development site, the EA Flood Zone maps showed that it was located in an area identified as Zone 3. The FRA noted that the site benefited from 1 in 200 year standard of protection from existing flood defences. Consideration was then given to the more detailed and refined flood risk information contained in the SFRA, which includes flood hazard mapping and accounts for the defence infrastructure in the area (in contrast to the EA’s maps). Based upon the SFRA, the site was in an area that was at the lowest risk of flooding.

Following publication of the FRA, the EA maps were revised and updated in relation to the application site. This meant that less of the development was identified as being in Flood Zone 3.

The Claimant argued that the officer’s report significantly misled the planning committee by failing to apply both national and local policies in relation to the areas at risk of flooding. In particular, relying upon a local plan policy, the Claimant argued that the correct approach required the sequential test to be applied on the basis of the risk of flooding identified within the EA’s maps and to seek alternative sites prior to considering the SFRA.

Dove J dismissed the Claimant’s interpretation of the local policy, and determined that it required the preparation of the detailed FRA using the SFRA. On the facts, given that the site was at the lowest risk of flooding, the question of searching for other sites pursuant to the sequential test did not arise.

As to national policy, Dove J accepted the defendant’s submission (confirmed in the Planning Practice Guidance) that: [1]

“[P]aragraph 158 [of the NPPF] (giving effect to the principal identified in paragraph 155) identifies that the sequential test, steering new development to areas with the lowest risk of flooding, will be applied on the basis of the findings of the SFRA.”

Policy compliance

It was further argued, on behalf of the claimant, that the officer report failed to properly address certain criteria in two local plan policies [2] and therefore the report failed to reach a judgement on the extent of compliance with those policies. Accordingly, the committee failed to discharge its duty pursuant to section 38(6) of the Planning and Compulsory Purchase Act 2004, although the report said that the application was a significant departure from the development plan.

Dove J observed what was required in relation to assessing compliance with policies in a development plan:

“[T]he policies of the development plan seek to reconcile numerous interests and it would be difficult to find any project of any significance that was wholly in accord with every relevant policy in the development plan. To be in accordance with the development plan it suffices for the proposal to accord with development plan considered as a whole: it does not have to accord with each and every policy. In evaluating a proposal against the development plan not every policy will have precisely the same weight and some will have greater significance to the determination of whether the proposal accords with the plan than others. This is a reality which will be reflected in the approach taken by officers in preparing their committee report, focussing on the more central policies, and taking a lighter touch with others that are less directly engaged or of less moment in the decision at hand, without the need to take a “tick-box” approach to the consideration of the development plan’s policies. These are issues of planning judgment…” [3]

He accordingly dismissed this ground of challenge.

Heritage

Given the impact of the application site on the setting of the RMC, the officer’s report gave detailed consideration to heritage matters. Whilst the claim did not ultimately turn on this issue, because Dove J determined that “it was beyond argument that there was careful and detailed consideration” of the impact on the RMC, [4] the extracts from the officer’s report usefully illustrate how national heritage policy ought to be applied. The officer laid out the history of events at the site, how they related to the RMC, and the relationship between the RMC and the development. Consideration was then given to the impact of the proposed development on the RMC; and it was advised that less than substantial harm would be caused. The public benefits of the proposal were then identified and evaluated, before they were weighed against the harm to the RMC.

One day judicial review by telephone

The hearing took place on 24 March 2020 at the start of the Government restrictions in response to the COVID-19 pandemic. This meant that a full one-day substantive judicial review was heard by the telephone, which is perhaps the first of its kind.

Richard Harwood QC and Stephanie David are barristers at 39 Essex Chambers. They appeared for the defendant, Folkestone and Hythe District Council, instructed by Anna Russell-Knee of Attwells. They shared their experience of the “virtual” substantive judicial review hearing here.

[1] Judgment, paragraph 34.

[2] The policies were TM8 and LR9.

[3] Judgment, paragraph 44, taking into account the comments of Sullivan J in R v Rochdale Metropolitan Borough Council ex p Milne (No2) [2001] Env LR 406, at paragraphs 49 and 50.

[4] Judgment, paragraph 43.

Slide background