Watermead Parish Council v Aylesbury Vale District Council

The sequential test in national flood-risk planning policy applies to new development on previously developed land and to development that would reduce existing flood risk. Only the stated exemptions apply. A local planning authority may depart from national policy, but must recognise its true scope and depart consciously for good reason.

An officer materially misdirects a planning committee by treating prior development as removing the need for the test. Later witness evidence may elucidate advice but cannot cure a legal error in the advice on which the decision was based. Where that error prevents lawful consideration of a restrictive policy, the presumption in favour of sustainable development cannot be lawfully applied.

Watermead Parish Council sought judicial review of the district council’s grant of planning permission for a crematorium on land partly within areas at high risk of flooding. The planning officer advised that a sequential assessment was unnecessary because the site was already developed. The officer also applied the presumption in favour of sustainable development.

H.H.J. Waksman Q.C. dismissed the claim in [2016] EWHC 624 (Admin), holding that the council could treat the proposal’s reduction of existing flood risk and its similarity to minor development as justifying the absence of a sequential assessment. The parish council appealed. The principal issues were whether the council had misunderstood the sequential-test policy, whether the officer’s later witness statement could be considered, and whether the presumption in favour of sustainable development had been lawfully applied.

1. Appeal allowed. The planning officer’s advice materially misinterpreted national flood-risk policy. The sequential test is distinct from, and precedes, the exception test. Its purpose is to steer new development towards areas with the lowest probability of flooding by considering reasonably available, appropriate sites at lower risk.

2. The sequential test applies to new development on land that has already been developed. It is not rendered inapplicable because the proposal would reduce existing flood risk. The policy expressly exempts development on sites allocated through the sequential test, minor development and changes of use. None of those exemptions applied. The advice that an assessment was unnecessary because the site was already developed was therefore an error of law.

3. A local planning authority may depart from national planning policy, but it must do so consciously and for good reason. The officer did not invite the committee to depart from the policy or identify a sufficient justification. Satisfaction of the separate requirements concerning mitigation and flood compensation could not, without more, justify dispensing with the sequential test.

4. The judge was not necessarily wrong to admit the officer’s later witness statement. Such evidence must, however, be treated cautiously. It may shed light on advice actually given, but cannot correct an error of law in the assessment on which the committee relied. The statement added considerations absent from the report and confirmed rather than displaced the policy misdirection.

5. The court left open the general construction of paragraph 14 of the National Planning Policy Framework. On either proposed construction, the officer’s sequential-test error meant that he could not lawfully advise whether the flood-risk policy indicated that development should be restricted. The presumption in favour of sustainable development was consequently applied unlawfully.

6. Relief was not withheld under section 31(2A) of the Senior Courts Act 1981. The errors concerned important national policy and were not inconsequential. Whether to apply or depart from the sequential test, and whether an alternative site was available, involved factual assessment and planning judgment for the local planning authority. A different result on redetermination remained a realistic possibility. Commercial prejudice did not outweigh the imperative of a lawfully taken decision.

1. Court of Appeal (Civil Division): Allowed the parish council’s appeal in [2017] EWCA Civ 152. The grant of planning permission was unlawful and relief was not withheld.
2. High Court, Administrative Court, Planning Court: H.H.J. Waksman Q.C. dismissed the claim for judicial review in [2016] EWHC 624 (Admin).