Parts of the site lie in Flood Zones 2 and 3. The inspector found that the developer should have carried out the "sequential test" — the NPPF mechanism designed to steer development towards land at the lowest risk of flooding — and had not done so. That was a clear conflict with national policy, and he gave it significant weight. But he also found that the proposed mitigation, principally raising land levels and the access road, meant there would be no "real world harm"; neither the Environment Agency nor the lead local flood authority objected. Weighing that policy breach against the benefits — market and affordable housing in a borough with under four years' housing land supply — he allowed the appeal.

The Town Council's central argument in the High Court was that the inspector had, in substance, applied the "exception test", which under the NPPF only becomes available once a sequential test has been undertaken.  The Town Council also argued that the inspector had misapplied the updated test in paragraph 11(d)(i) of the NPPF on whether flooding policy provided “a strong reason for refusing the development proposed”.

Lieven J rejected all four grounds. The key overarching point is that even an important policy like the sequential test in the NPPF "is not law and can be departed from" so long as the decision-maker gives adequate reasons and acts rationally ([47]).

On grounds 1 and 2, That the same considerations would have arisen under the exception test did not mean the inspector had applied it; it meant the relevant material considerations were simply the same ([44]–[45]).

On ground 3, Whether a breach amounts to a "strong reason" for refusal — tightened from "clear" in December 2024 — is an undefined term and a matter of planning judgment, not judicial exegesis ([59]–[61]).

On ground 4, the seven earlier appeal decisions relied on were not alike, and required no further reasons for departure ([69]–[75]).

Ned Westaway and Michael Rhimes acted for the Secretary of State instructed by the Government Legal Department