Watermead Parish Council, R (on the application of) v Crematoria Management Ltd

The National Planning Policy Framework is a material consideration, not a statute. A planning authority may depart from its processes as an exercise of planning judgment, provided its reasons are clear and lawful. A restrictive NPPF policy does not permanently remove the presumption in favour of sustainable development; the presumption may operate after the restrictive policy has done its work. The sequential flood-risk test may be treated as unnecessary in unusual circumstances where redevelopment of an existing site materially reduces flood risk, is closely analogous to minor development, and the authority’s reasoning is rational. Site-specific flood mitigation cannot replace the sequential test, but the authority may reasonably decide that the test is unnecessary for reasons independent of that mitigation.

A parish council sought judicial review of a local planning authority’s grant of permission for the demolition of a restaurant and construction of a crematorium on a site including areas at flood risk. It argued that the officer’s report unlawfully applied the presumption in favour of sustainable development under paragraph 14 of the National Planning Policy Framework and wrongly treated the sequential flood-risk test as unnecessary.

The authority and the interested party relied on the existing developed site, the proposed relocation of most development to lower-risk land, and the anticipated overall reduction in flood risk. The central issues were whether the presumption could apply after consideration of restrictive flood-risk policies and whether the authority had made an error of law in deciding that a sequential test was unnecessary.

1. Claim dismissed. The planning permission was lawful and there was no basis for interference with the authority’s planning judgment.

2. Under section 70(2) of the Town and Country Planning Act 1990, the NPPF was a material consideration. The authority was not required to follow every NPPF process slavishly. It could depart from an NPPF provision in an appropriate case through planning judgment, provided it made clear why it was doing so. The court relied on Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447 for the principle that the weight given to a material consideration is a matter for the decision-maker.

3. The presumption in favour of sustainable development in paragraph 14 was not permanently displaced merely because a specific NPPF policy indicated that development should be restricted. Once the restrictive policy had been addressed, the presumption could still have work to do in relation to other planning considerations. Paragraph 119 was an express example of a circumstance in which the presumption did not apply.

4. Paragraphs 100 to 104 did not impose an additional requirement that development first be shown to be necessary in some abstract sense. In this context, necessity meant that there were no reasonably available and appropriate lower-risk sites. The sequential test generally applied to development in flood zones 2 or 3, subject to the stated NPPF exceptions and a lawful exercise of planning judgment.

5. In the unusual circumstances, it was lawful to regard the sequential test as unnecessary. The officer had considered the comparison between the existing and proposed development, the modest net increase in size, the movement of the principal building to flood zone 1, the reduction in flood risk and the Environment Agency’s satisfaction with the compensation measures. The decision was not based merely on site-specific mitigation after assuming that the sequential test had been passed.

6. The officer’s subsequent witness statement could be considered because it expanded, rather than contradicted, the reasoning in the report. The court distinguished the circumstances from Lanner Parish Council v Cornwall Council [2013] EWCA Civ 1290. The challenge based on EA v Tonbridge [2006] PTCR 29 also failed: that authority concerned whether the sequential test had actually been performed, whereas this case concerned a reasoned decision that it was unnecessary.

First-instance judicial review decision. No prior appellate decision is stated in the judgment.