High Court dismisses challenge to grant of permission for 250-home scheme despite lack of flood sequential test

The principal issue in Faversham Town Council, R (on the application of) v Secretary of State for Housing, Communities and Local Government & Ors [2026] EWHC 1651 (Admin) was the correct approach to the National Planning Policy Framework’s (NPPF) Sequential Test (ST), which aims to steer development away from areas at risk of flooding.

It was common ground between the parties that parts of the site, covering around 20 homes and the main access road, would be at risk of tidal flooding in a 1 in 200 year scenario. There were also risks concerning surface water flooding.

The developer had not undertaken a Sequential Test and argued at the High Court that no Sequential Test was required.

It also argued, in the alternative, that if there was a requirement for a Sequential Test, then the other material considerations outweighed that policy failure.

The local planning authority, Swale Borough Council, and the claimant strongly disagreed and argued that the lack of Sequential Test should lead to the refusal of planning permission.

The town council, represented by Estelle Dehon KC of Cornerstone Barristers, advanced four grounds at the High Court.

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

Lieven J ultimately dismissed the claim on all four grounds, finding, among other things, that policy like the sequential test in the NPPF "is not law and can be departed from".

The judge said it is open to inspectors to depart from the NPPF, and specifically where no Sequential Test has been undertaken, to balance that policy breach against other material considerations, including the benefits of the development.

She said: "To put it succinctly, policy (even the NPPF) is not law and can be departed from so long as the decision maker given adequate reasons and acts rationally."

Ned Westaway and Michael Rhimes of Francis Taylor Building acted for the Secretary of State.

Adam Carey