Martin, R (On the Application Of) v Folkestone And Hythe District Council

National and local flood-risk policies may require a detailed flood-risk assessment, but the sequential test is applied using the refined flood zones identified by the relevant strategic flood-risk assessment. Where that assessment places the proposed development in the area with the lowest probability of flooding, a search for lower-risk alternative sites is unnecessary.

A planning committee report must be read fairly and with reasonable benevolence. It need not address every limb of every policy mechanically. The question is whether, read as a whole, it materially misled members on an issue bearing on the decision. A proposal need accord with the development plan as a whole; it need not comply with every policy individually.

The claimant sought judicial review of the defendant local planning authority’s grant of planning permission for a mixed-use development at Princes Parade, including housing, commercial uses, open space and a leisure centre.

She alleged that the committee report materially misled members about flood-risk policy and about the proposal’s compliance with saved development-plan policies concerning open space, recreation and the setting of the Royal Military Canal Scheduled Ancient Monument. The central issues were whether the authority had properly applied the sequential approach to flood risk and whether the report enabled members lawfully to discharge the duty under section 38(6) of the Planning and Compulsory Purchase Act 2004.

1. The claim for judicial review was dismissed. Neither ground of challenge was made out.

2. Under national policy, the sequential test directs development towards areas with the lowest flood risk. Paragraph 158 of the National Planning Policy Framework, reinforced by the National Planning Practice Guidance, makes the relevant strategic flood-risk assessment the basis for applying the test. The local policy required a detailed flood-risk assessment where the Environment Agency maps identified flood risk or wave overtopping. It did not require the authority to search for alternative sites before considering the refined assessment in the strategic flood-risk assessment.

3. The submitted flood-risk assessment used the Shepway Strategic Flood Risk Assessment and concluded that the site was outside the mapped flood-hazard area, including projected future risk. The court held that this supported the conclusion that the site lay in the area with the lowest probability of flooding. The sequential test therefore did not require consideration of other sites. The minor error in the committee report concerning the extent of Flood Zone 3 was immaterial in light of the report’s remaining analysis.

4. The principles governing allegedly misleading committee reports, summarised in Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314, required the report to be read as a whole, with reasonable benevolence and without undue forensic scrutiny. The issue was whether members had been materially misled on a matter bearing upon their decision, such that the decision might have been different.

5. The report set out the relevant policies and addressed the quantity and quality of open space, the effect on the Royal Military Canal, design, landscape, ecology and environmental harm. Officers were not required to engage mechanically with each policy limb or adopt a tick-box approach. Under section 38(6), the proposal had to be assessed against the development plan as a whole, not against each policy considered in isolation. The report identified a significant departure from the development plan and equipped members to exercise their own judgment on the balance between harm and public benefits.