The case concerned two conjoined challenges by a land promoter and housebuilder in respect of housing developments refused planning permission on grounds of a failure to satisfy the flood risk sequential test in the National Planning Policy Framework and Planning Practice Guidance. The Claimants alleged that the Inspectors had misinterpreted that policy and guidance. The Judge dismissed the claims, finding that the Inspectors did not err in that respect or otherwise, with one exception in respect of the Redrow claim which was not material to the outcome.

The judgment contains detailed discussion of how the flood risk sequential test operates, noting in particular the broad and open-textured nature of the policy, and that it is not to be interpreted in a highly specific way to the effect that alternative sites must be able to accommodate the development in fact proposed in its various particulars, including form, quantum (both as to site area and amount of development) and intended timescales for delivery. There is, the court found, a need for flexibility and realism on all sides.

The judgment also contains wider discussion of the legal status of national planning policy, the relationship between the NPPF and the PPG, and whether there is a sharp legal divide between the NPPF and the PPG which treats the former as policy and the latter as not. The Judge noted that the PPG is intended to support the NPPF and ordinarily, therefore, it is to be expected that the interpretation and application of PPG will be compatible with the NPPF. However, the court observed that there is no legal justification for the suggestion that the Secretary of State cannot adopt PPG which amends, or is inconsistent with, the NPPF. The NPPF does not have some special legal status, the effect of which is to restrict the ability of the Secretary of State to change such national policy to an amendment made to the NPPF itself. The Judge also observed that there was no reason why the PPG should not be treated as a statement of planning policy.

Hugh Flanagan acted for the Secretary of State, leading Piers Riley-Smith of Kings Chambers. The judgment can be found here. Hugh also acted for the Interested Parties in respect of the recent Court of Appeal decision in Substation Action Save East Suffolk Ltd v Secretary of State for Energy Security and Net Zero [2024] EWCA Civ 12, led by Hereward Phillpot KC, which dealt with flood risk policy in the nationally significant infrastructure context.