The Court of Appeal has recently confirmed the lawfulness of the Government’s flooding planning policy guidance after it was applied by a Planning Inspector.  The case concerned the refusal of planning permission for 75 dwellings on the grounds of flood risk. The applicant challenged the refusal in the High Court on the basis that the Inspector had misinterpreted planning policy and guidance on the “sequential test” and specifically the relationship between national planning policy in the National Planning Policy Framework (“NPPF”) and the corresponding guidance in the Planning Practice Guidance (“PPG”)

The site was located in floodplain with a high probability of flooding (Zone 3). The NPPF advises that development should not be permitted in such locations if there are reasonably available sites appropriate for the proposed development in areas with a lower risk of flooding.  The NPPF contained no definition of “reasonably available sites”

That omission was later rectified by an addition to the PPG which stated that a “reasonably available” site was one in a suitable location for the type of development with a reasonable prospect that the site is available to be developed at the point in time envisaged for the development.  It added that these could include a series of smaller sites and/or part of a larger site if these would be capable of accommodating the proposed development. 

The Council had a more restrictive definition of a reasonably available site in its core strategy.  This included a requirement that a single alternative site had to be able to accommodate the requirements of the proposed development. The Council had put forward 39 alternative sites:  all failed the Council’s core strategy policy definition, but not necessarily the later PPG definition. 

The Inspector concluded that the Council’s policy was out of date and that an alternative site could include a series of smaller sites so long as collectively they were capable of accommodating the proposed development. There was no need for such smaller sites to be contiguous. 

The Inspector found that many of the sites fell within the meaning of reasonably available in the NPPF, as amplified by the PPG, so he concluded that the proposed development failed the sequential test and planning permission was refused.

The decision was challenged on the basis that the PPG could not elaborate or extend the policy of the NPPF.  The High Court rejected the challenge saying that it saw no legal justification for the suggestion that the Secretary of State cannot adopt PPG which amends, or is inconsistent, with the NPPF.

The Court of Appeal upheld the High Court’s decision, finding that the advice in the PPG on the sequential test was consistent with policy in the NPPF.  It did not exceed the ambit of the NPPF policy but rather explained how the policy was meant to operate.

The Court also went further and found that:

• there was no legal principle that prevents national policy in the NPPF being amended, or altered, by the PPG. 
• the legal status of the NPPF and the PPG is essentially the same; despite draft NPPF provisions generally being consulted upon prior to implementation no legal distinction existed between them. Both are statements of national policy issued by the Secretary of State exercising his general power to do so as minister with overall responsibility for the planning system. 
• It is incorrect to describe the PPG as being, in a legal sense, subservient or subordinate to the NPPF in a hierarchy of national planning policy. Policies in the NPPF and guidance in the PPG can be used as an aid to interpretation of each other.