Dry, R (on the application of) v West Oxfordshire District Council

Guidance on referring a planning application back to committee after a resolution is a counsel of prudence, not a rigid rule. It must be applied with common sense and by reference to the particular facts. A referral is unnecessary where an intervening change supplies no new material information and there is no reason why a rational committee would alter its decision.

In flood-risk planning, the sequential approach requires the absence of reasonably available and suitable lower-risk sites. A planning authority may rely on an accepted sequential assessment and the withdrawal of the Environment Agency’s objection. The weight given to flooding at environmental-impact-assessment screening is a planning judgment, absent irrationality.

A local resident challenged planning permission for 100 houses at Eynsham. Flooding had become an issue after a serious flood in 2007. The application was assessed on the basis that the site lay in flood zone 2, and the Environment Agency withdrew its objection after considering the developer’s sequential-test and flood-mitigation reports.

The planning committee resolved to grant permission in July 2009. Before the notice was issued, a revised flood map placed most of the site in zone 2. Mitting J dismissed the judicial-review claim concerning the sequential test. He also refused permission on a separate environmental-impact-assessment screening ground. The claimant appealed on the first issue and renewed her permission application on the second.

1. Appeal dismissed and renewed application for permission refused. Carnwath LJ, with whom Patten and Maurice Kay LJJ agreed, held that Mitting J had reached the correct conclusion.

2. On environmental impact assessment, the weight to be given to the 2007 flood when making the screening decision was a matter of planning judgment, unless irrational. The later detailed consideration of flood risk, undertaken to the Environment Agency’s requirements, also meant that any theoretical defect in the earlier screening reasoning could have produced no practical benefit for the claimant.

3. The court treated the guidance in Kides v South Cambridgeshire District Council [2003] JPL 431 as practical advice to err on the side of caution, rather than an inflexible legal requirement. Its application depended on the circumstances. The five-year interval in Kides differed materially from this case.

4. The officers’ report had to be read fairly and as a whole. The sequential assessment had already proceeded on the basis that the whole site was in flood zone 2. The committee’s own reasons relied on the Environment Agency’s withdrawal of its objection, in the context of that assessment, and the committee had been told that the existing flood map was inaccurate.

5. The revised map therefore added nothing that the Environment Agency had not already considered. There was no new matter requiring referral back to committee, and no reason why a rational committee would have changed its decision. The sequential assessment’s conclusion that no suitable, reasonably available lower-risk site existed was accepted for the council and was not open to legal challenge on the evidence before the court.

• Court of Appeal (Civil Division) — dismissed the claimant’s appeal and refused the renewed permission application: [2010] EWCA Civ 1143.
• High Court, Administrative Court — Mitting J dismissed the judicial-review claim on the sequential-test ground and refused permission on the environmental-impact-assessment ground.