Flood risk and emerging Local Plans

APP/U1105/W/24/3357849 Land East of Colestocks Road, Feniton

Following a recent appeal in Feniton, East Devon, Inspector Dawe has provided important guidance on the consequences that follow from a failure to comply with the flood risk sequential test and the weight to be afforded to the position that 80% of the local housing need figure would be satisfied under an emerging Local Plan.

The Appeal Scheme seeks to deliver up to 86 dwellings with access, public open space, landscaping, drainage, and associated highways improvements and infrastructure in Feniton, the entirety of which is located within a Critical Drainage Area (‘CDA’). It also seeks to deliver an integral series of flood alleviation and benefits measures that would reduce the existing risk of flooding to the west of Feniton.

The Appellant’s Strategic Flood Risk Assessment (‘SFRA’) and site-specific Flood Risk Assessment (‘FRA’) demonstrated that the Appeal Site is in an area of lowest risk from fluvial flood risk and very low risk from surface water flooding, although a small area of road within the red line boundary and to the south is in an area of low risk. The Appellant therefore considered that the sequential test did not apply because the SFRA/FRA demonstrated that no built development within the site boundary including access would be located in an area at risk of flooding from any source. Even if it did, however, the Appellant had carried out a sequential test which showed that it was satisfied in any event.

Although the findings of the SRFA/FRA were not disputed, it was the Council’s position that the Appeal Site is in an area at risk of flooding because of the historic flooding of the settlement and the CDA designation when read with paragraph 1 of the PPG. The owner of the proposed drainage discharge outfall, Devon County Council Highways, also required further information to be submitted before agreeing to its use. Moreover, the Council disputed that the sequential test was satisfied because the sequential test area of search had been limited to Feniton and did not cover the district in which the Council’s housing targets and policies applied.

It was common ground that, on either case, that the Council could not demonstrate a five-year housing land supply. On that basis, the Appellant argued that the ‘tilted’ balance was engaged and that any failure to satisfy the sequential test was outweighed in the planning balance. The Council considered that footnote 7 of the NPPF applied and that the tilted balance was disengaged due to the area flood risk. In that connection, the Council relied upon its emerging Local Plan to argue that the benefits of market and affordable housing were lessened because the current housing requirement would meet 83% of the minimum local housing need and the transitional arrangements in para. 234 of the NPPF were engaged.

On flood risk matters, the Inspector was satisfied that the absence of an agreed point of discharge for the surface water flows could be appropriately dealt with by a Grampian condition (at paras. 38-40). However, he agreed with the Council that the Appeal Scheme was fundamentally a housing scheme and that he had no substantive basis for finding that there were no reasonable available sites appropriate for the development in areas with a lower risk of flooding, meaning the sequential test was failed (at para. 48).

Applying Mead Realisations Limited v SSLUHC [2024] EWHC279 (Admin), the Inspector noted that a failure of the sequential test was not automatically fatal and considered that the betterment relating to off-site flood risk lessened the weight he afforded to the failures relating to the sequential test and development plan policy (at para. 84). He ultimately agreed with the Appellant that the tilted balance was engaged as the application of policies that protect areas at risk of flooding did not provide a strong reason for refusal (at para. 95).

On spatial planning matters, the Inspector further concluded he could not be certain that the content of the emerging Local Plan would not change significantly from that presented at the first-round Reg.19 stage, nor that the proposed district-wide allocations for housing would all be found acceptable. He therefore afforded limited weight to the Council’s position that it would meet 80% of the local housing need figure (at para. 88). In any event, even if the requirement were applicable, a local housing need shortfall would remain (para. 89).

Overall, on the tilted balance, the Inspector concluded that the adverse impacts would not significantly and demonstrably outweigh the benefits, including the substantial benefits of providing additional housing, affordable housing, and betterment to off-site flood risk.

This is an important decision for those promoting sites engaging consideration of flood risk and the sequential test, as well as reliance on the transitional arrangements for Local Plans and lower housing need requirements.

The full decision can be found here.

Paul Cairnes KC and Jessica Allen are barristers at No5. They represented the appellant, Taylor Wimpey UK.