Stacey Jane Marie Smith & Anor v Secretary of State for Levelling Up, Housing and Communities & Anor

In assessing flood risk for a proposed development, the sequential test must ordinarily be undertaken and satisfied before the exception test is considered. A flood warning or evacuation condition may make occupation safer, but does not itself establish that the site is safe or satisfy the exception test.

Where flood risk is unpredictable and remains materially constant over time, an Inspector may conclude that a temporary permission is unacceptable without first fixing its duration. The Inspector must explain the conclusion clearly and undertake the overall planning balance, including relevant personal and human-rights considerations.

The claimants sought permission to bring a statutory review challenge to a planning Inspector’s decision dated 14 February 2024. The decision dismissed their appeal against refusal of planning permission for an already-developed Gypsy Traveller site accommodating 17 people.

The renewed application concerned grounds alleging errors in the treatment of temporary permission, flood-risk assessment, the previous Inspector’s findings, human-rights considerations and the adequacy of reasons. Permission had already been granted on other grounds. The central issues were whether the renewed grounds were arguable and whether the Inspector had lawfully applied the flood-risk policies.

1. Renewed grounds refused. Grounds 2(a), 2(c) and 4 were not arguable. The matter was to proceed to a substantive hearing on the grounds for which permission had already been granted.
2. Temporary permission. The Inspector was entitled to conclude that the development was unacceptable irrespective of the duration of any temporary permission. Flood events could occur at any time, so the risk did not diminish merely because permission was limited in duration. The reasoning at DL73 and DL74 sufficiently addressed that issue.
3. Sequential and exception tests. The policy approach required the sequential test to be undertaken and passed before the exception test was considered. The Inspector was entitled not to apply the exception test after finding that no sequential test had been undertaken and that its requirements had not been demonstrated. The claimed absence of alternative Traveller sites did not remove the need to assess reasonably available alternatives within an appropriate area of search.
4. Safety condition and prior decision. The agreed position concerning a flood warning and evacuation plan meant only that occupation could be made safer. It did not establish that the site would be safe or that the exception test was satisfied. The Inspector adequately explained her departure from the conclusions of the quashed earlier appeal decision.
5. Planning balance and human rights. The Inspector considered the overall planning balance under section 38(6) of the Town and Country Planning Act 1990. She gave substantial weight to flood-risk harm and concluded that the proposal’s benefits did not outweigh it. The claimants’ personal circumstances, needs and human-rights considerations were taken into account in that balance.
6. Reasons. The reasons were clear and logical. They identified the Flood Zone 2 access and part of the site, the medium fluvial-flood risk, the highly vulnerable nature of the development, and the presence of children and older adults.

1. High Court (Administrative Court): the first Inspector’s decision dated 9 December 2022 was quashed by order dated 30 May 2023, and the appeal was remitted for redetermination.
2. High Court (Administrative Court): the second Inspector dismissed the appeal on 14 February 2024.
3. High Court (Administrative Court): the renewed permission application was refused on grounds 2(a), 2(c) and 4. The claim proceeded only on the grounds previously permitted.