Mead Realisations Limited v Secretary of State for Housing, Communities and Local Government & Anor

The Court of Appeal dismissed the appellant's challenge to the High Court's dismissal of its statutory review claim. The court held that the Planning Practice Guidance (PPG) paragraph 7-028 legitimately elucidated the sequential test in paragraph 162 of the National Planning Policy Framework (NPPF) rather than unlawfully amending it. The inspector lawfully applied the sequential test by reading paragraph 162 together with paragraph 7-028 of the PPG, concluded that reasonable alternative sites existed at lower flood risk, and properly found conflict with policy CS3 of the North Somerset Core Strategy and with the development plan as a whole.

The court emphasised that NPPF policy and PPG guidance are both national planning policy instruments issued by the Secretary of State, that their legal status is comparable, and that guidance in the PPG can clarify how an NPPF policy should operate without becoming a binding code. The inspector did not commit public law error in giving lesser weight to parts of policy CS3 that were inconsistent with the NPPF as interpreted in the PPG, nor in the planning balance which found flood risk harm outweighed the benefits of the development.

The appellant, Mead Realisations Limited, sought to challenge by statutory review (section 288 of the Town and Country Planning Act 1990) the decision of an inspector dismissing an appeal against North Somerset Council's refusal of planning permission for up to 75 dwellings on a site in Flood Zone 3a. The council had refused permission in part because the proposal was said to fail the NPPF sequential test for flood risk. The inspector held an inquiry, applied the NPPF sequential test as informed by paragraph 7-028 of the PPG, found reasonably available alternative sites at lower flood risk across North Somerset, concluded the proposal failed the sequential test and therefore conflicted with policy CS3 and the development plan, and dismissed the appeal.

Procedural history: the claimant's statutory review was heard in the High Court and dismissed by Holgate J ([2024] EWHC 279 (Admin)). Permission to appeal to the Court of Appeal was granted. The Court of Appeal heard two grounds of appeal derived from the High Court decision: (1) whether the judge was wrong to hold that the PPG can amend or alter the meaning of the NPPF; and (2) whether the judge was wrong to hold that the inspector lawfully treated the PPG as elucidating the NPPF.

The Court of Appeal's reasoning: the court accepted the judge's analysis that the NPPF and PPG are both national planning policy instruments issued by the Secretary of State and that guidance in the PPG may legitimately explain or clarify an open-textured NPPF policy. Paragraph 162 of the NPPF (the sequential test) was open-textured and did not define reasonably available sites; the PPG paragraph 7-028 provided a practicable, flexible explanation of that concept. The inspector lawfully used that guidance in applying the sequential test, did not apply the PPG as a rigid, binding code, and lawfully concluded that parts of policy CS3 were inconsistent with the NPPF when read with the PPG, thereby giving those parts lesser weight. The inspector's planning judgment, including the planning balance weighing flood risk harm against housing benefits, contained no public law error. The court therefore dismissed the appeal.

Nature of relief sought: statutory review of the inspector's decision under section 288 Town and Country Planning Act 1990, effectively seeking to quash the inspector's decision. Issues framed by the court: (i) the legal relationship between NPPF policy and PPG guidance and whether PPG may alter or constrict NPPF policy, and (ii) whether the inspector misapplied or misunderstood the PPG when applying the sequential test. Decision on issues: the PPG may legitimately elucidate an open-textured NPPF policy and may be used as an aid to interpretation; the inspector lawfully applied the NPPF sequential test as clarified by the PPG and did not err in treating parts of local policy CS3 as out of date or inconsistent with national policy; no public law error was made and the appeal was dismissed.

Appeal dismissed. The Court of Appeal agreed with Holgate J. that paragraph 7-028 of the PPG legitimately elucidated the sequential test in paragraph 162 of the NPPF and did not unlawfully amend it. The inspector lawfully applied the NPPF read with the PPG, properly gave lesser weight to parts of local policy CS3 inconsistent with that interpretation, concluded the proposal failed the sequential test and that flood risk harm outweighed the benefits, and committed no public law error.

Appeal from the High Court (King's Bench Division, Planning Court) where Holgate J. dismissed the claimant's statutory review ([2024] EWHC 279 (Admin)). Permission to appeal to the Court of Appeal was granted. The Court of Appeal heard the appeal and dismissed it.