Thomas Bates & Son Ltd., R (on the application of) v Secretary of State for Transport, Local Government and the Regions & Anor

The sequential test in PPG 25 operates by reference to flood-risk categories shown on flood-plain maps, without initially taking account of flood defences. A site in a higher-risk category fails the test where reasonable alternatives are available in a lower-risk category and are consistent with sustainable development objectives. If no such alternative exists, the quality of flood defences becomes relevant, including when comparing sites within the same category. Separately, when assessing the wider planning merits and carrying out the overall balance, the decision-maker must take account of the actual flood risk, including the protection provided by existing defences and relevant comparative evidence.

The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash an inspector’s decision dismissing its appeal against refusal of planning permission for 124 dwellings and associated development at Hall Road, Heybridge. A previous decision by the same inspector had been quashed by consent, and the reopened inquiry was confined to flooding issues. The central questions were whether the inspector had correctly interpreted and applied the sequential test in PPG 25, whether he had properly assessed comparative and actual flood risk, whether reasonable alternative sites had been adequately considered, and whether an overall planning balance had been undertaken.

1. Sequential test. The application failed on the principal issue of interpretation. PPG 25 established a zoning system based on flood-plain maps, which did not take account of flood defences. Priority had to be given to lower-risk categories, and a higher-risk site could be permitted only if no reasonable option was available in a lower-risk category consistent with other sustainable development objectives.
2. Flood defences were therefore not relevant at the initial categorisation stage. If no lower-risk option existed, they became relevant in comparing sites, particularly within Zone 3(a), where preference was given to areas already defended to the required standard for the lifetime of the development.
3. Actual risk and wider assessment. Although the inspector had correctly applied the sequential test, he failed, for other purposes, properly to consider the actual flood risk to the site. He did not adequately retain in his reasoning the evidence that the existing sea defence provided the required 1 in 200 year protection. He also failed to address material evidence that the Jacob’s Farm and 55 Goldhanger Road sites might flood before the appeal site.
4. The inspector’s treatment of alternative sites was otherwise adequate. He had considered the availability and location of sufficient urban housing land, and was not required to examine the Jacob’s Farm site for the sequential test because it was not in a lower-risk category.
5. The inspector was not required to set out a separate overall balancing exercise in any particular form. However, the actual flood protection had to be included in the general planning balance, and the failure to do so was material. The decision was quashed. The first defendant was ordered to pay the claimant’s costs, except those relating to the interpretation of PPG 25, to be assessed if not agreed. Leave to appeal was refused.

The judgment describes an earlier appeal decision by the same inspector, which had been quashed by consent. A reopened public inquiry was then held, confined to the flooding issue. The present claim under section 288 of the Town and Country Planning Act 1990 succeeded in part and the inspector’s renewed decision was quashed.