The case, R (Mead and Redrow) v SoS LUHC [2024] EWHC 279 (Admin), concerned two challenges in respect of planning permission refusals because they failed to satisfy the PPG’s and the National Planning Policy Framework’s (“NPPF”) flood risk sequential test. The challenges concerned the approach to the sequential test set out in the Planning and Flood Risk Chapter of the NPPF, compared with that set out in the recently updated PPG Flood Risk and Coastal Change Chapter (amended 25 August 2022) and sought to argue that the planning inspectors had misinterpreted the policy and guidance.
Both claims were dismissed, and the Judge found that the planning inspectors did not err in their interpretation of policy and guidance. While the case particularly focused on how alternative sites should be considered, its implications have relevance in the wider planning regime. There are two informative factors in this case, one dealing with the legal status of national policy and guidance, and the other considering the sequential test in the PPG.
Status of National Policy
Of particular importance in this case was the argument over the relationship between the NPPF and PPG. The former is considered national policy, and the latter practical guidance. In most cases, the PPG’s purpose is to support (and therefore be compatible with) the NPPF. In this case, the updated PPG was inconsistent with the NPPF. However, Holgate J held that the same fundamental legal principles on policy apply to both the NPPF and the PPG. As such, the ability of the Secretary of State to adopt either derives from the same legal source of power. The judgment therefore indicates that a development plan policy can become inconsistent with the NPPF following an update to the PPG.
Judge’s Comments in the NPPF and PPG‘s Sequential Test
Insofar as Holgate J considered the sequential test in the NPPF and PPG, particularly on the point of alternative sites, it was held that:
The “need” for the development proposed can be relevant to considering the appropriateness of alternatives for the sequential test. However, this is only as regards the need for the specific type of development proposed rather than a general housing land supply deficit or employment (for example).
The NPPF provision that alternative sites should be “reasonably available” includes a temporal dimension. Despite this, the NPPF does not require that the availability of an alternative site should always align with the direction for the developer’s proposal.
The PPG states that reasonably available sites may include “a series of smaller sites and/or part of a larger site if these would be capable of accommodating the proposed development.” But that is ultimately a judgment for the decision-maker based on relevant factors, including the type and size of development, location, ownership issues, timing and flexibility, and the case on need/market demand.
The word “series” in the PPG’s reference to a “series of smaller sites” is significant as it connotes that there should be a relationship between smaller sites proposed. This addresses concern that a proposal should not automatically fail the sequential test because multiple, disconnected sites are available across a local authority’s area.
Planning policy is constantly evolving. If you would like advice on how planning law and policy might affect you, please contact Tom Jones.
