Planning Court judge rejects challenge by council over application of ‘exception test’ in flood risk case

North Somerset brought the case against developer Persimmon Homes Severn Valley and the Secretary of State for Housing Communities and Local Government as a statutory review under section 288 of the Town and Country Planning Act 1990.

It challenged inspector David Prentis’s decision to overturn the council’s rejection of Persimmon’s bid to build 190 homes at Yatton.

The council’s first ground of challenge was that Mr Prentis misunderstood and misapplied policy by applying the exception test despite the proposal having already failed the sequential test.

Its second was that Mr Prentis’s conclusion the development could be made safe from flooding for its lifetime was either irrational or not supported by adequate reasons.

Jefford J said the terms of the National Planning Policy Framework (NPPF), the Flood Risk Sequential Test and the exception test were all central to the case.

She said Mr Prentis’s decision letter showed he had determined that the sequential test was failed, to which he gave substantial weight, but, given his conclusions on flood risk, he did not consider it a strong reason to refuse permission.

He felt the benefits of the scheme outweighed the harm, and that, having regard to paragraph 11(d) of the NPPF, he should grant permission.

North Somerset’s argument was that once the sequential test is failed, the decision maker should not consider the exception test.

It argued the inspector misunderstood the policies and misapplied the exception test to conclude that the development should be permitted.

The council accepted Mr Prentis did not in terms state that he was applying the exception test but said that was “both the form and substance of what he did”.

Jefford J said: “It is clear…the inspector nowhere said that he was applying the exception test and, in my view, 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.“

She said that if the court started with the presumption that the inspector understood the policy, the natural interpretation of his decision was “that he took account of these matters as material considerations as he was fully entitled to do”.

Jefford J said this highlighted “the inherent difficulty” with North Somerset’s case because neither the NPPF or planning policy guidance stated that if the exception test is not reached, “the matters that form the limbs of the exception test should not be taken into account.

"If that were the effect of the policies, the position would be curious in that patently material considerations as to sustainability and safety would be excluded with no articulation of what else might be material considerations.”

She said Mr Prentis had weighed the elements of the exception test and then deployed the results in his planning judgment and to justify the development contrary to policy.

Having found the sequential test failed, Mr Prentis went on to consider other material considerations and weighed  those in the planning balance.

“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,” Jefford J said.

“The fact that they were the same matters as feature in the exception test does not evidence a misunderstanding of the policies on the part of the inspector or have the consequence that he gave the sequential test no weight rather than the weight he considered appropriate.

“The fact that his conclusion on the balance was that the development should be permitted similarly does not evidence his application of the exception test to justify development contrary to policy.”

Turning to the second ground, Jefford J said: “The obvious reading is that the inspector weighed [issues] in the balance and reached a decision in favour of permission. There is nothing irrational in that and any alleged absence of reasons does not disclose irrationality. “

She added let decision letter was “clear and reasoned [and] the claimant may wish he had said even more but that is not a basis for challenge”.

Mark Smulian