Faversham Town Council, R (on the application of) v Secretary of State for Housing, Communities and Local Government & Ors

Where the NPPF requires a Sequential Test, it must be undertaken before any Exception Test; mitigation cannot be used to bypass that sequence. A failure to undertake the Sequential Test remains a policy breach that may be weighed in the wider planning balance. The decision-maker may consider mitigation, the absence of real-world flood harm and development benefits, even if those matters would also arise under the Exception Test. Whether the breach supplies a strong reason under paragraph 11(d)(i) is a planning judgment, not a universal rule that substantive harm is required. Earlier appeal decisions require reasons for departure only where they are materially alike and the relevant policy context is comparable.

The claimant, a town council, sought judicial review of an Inspector’s decision dated 27 June 2025 granting planning permission for up to 250 dwellings on land near Faversham, Kent. Parts of the site were in Flood Zones 2 and 3 and the development would require mitigation, including land raising.

The Inspector found that a Sequential Test was required but had not been undertaken. He nevertheless granted permission after giving significant weight to the policy breach while balancing it against the absence of real-world flood harm, housing benefits and other material considerations. The claimant argued that the Inspector had effectively applied the Exception Test, acted irrationally, misinterpreted the strong-reason requirement in NPPF paragraph 11(d)(i), and failed to explain departure from earlier appeal decisions.

The application was dismissed. All four grounds failed.

1. Sequential Test and Exception Test. The Inspector correctly interpreted the NPPF. He found that the Sequential Test was required, that it had not been undertaken, and that this created a conflict with national and local policy. He also correctly recognised that the Exception Test could only be considered after the Sequential Test. Mitigation, including land raising, could not remove the need for the Sequential Test.
2. Planning balance. The NPPF is policy rather than law and does not bind the decision-maker as a statutory instrument. A decision-maker may depart from it consciously and for good reason, provided the decision is rational and adequately reasoned. The Inspector was entitled to consider mitigation, the absence of real-world harm and the benefits of housing delivery in the overall planning balance. The fact that those matters might also arise under the Exception Test did not mean that the Inspector had applied that test in substance. The approach was consistent with R (Asda Stores Ltd) v Leeds City Council [2021] PTSR 1382, R (Watermead Parish Council) v Aylesbury Vale District Council [2017] EWCA Civ 152 and Hopkins Homes v SSHCLG [2017] UKSC 17.
3. Strong reason. Whether a policy conflict supplies a strong reason for refusal under paragraph 11(d)(i) is a planning judgment. The term is undefined and does not impose a universal requirement of real-world harm. The Inspector was entitled, on the facts, to conclude that the policy breach did not provide a strong reason for refusal. The tilted balance was therefore engaged, and his conclusion that the benefits were not significantly and demonstrably outweighed by the adverse impacts was rational. A universal rule that a strong reason must always involve real-world harm would have been wrong, but the decision letter did not adopt such a rule.
4. Consistency and reasons. Earlier appeal decisions may be material where the cases and issues are materially alike. However, the relevant policy had changed from a clear-reason to a strong-reason test, and the sites, schemes and planning benefits differed materially. The Inspector was therefore not required to give separate detailed reasons for departing from the earlier decisions. Read fairly as a whole, the decision letter made his reasoning sufficiently clear. The statutory development-plan duty under s38(6) of the Planning and Compulsory Purchase Act 2004 did not require a different result.

The application challenged the First Defendant’s planning inspector’s decision of 27 June 2025 granting planning permission. No earlier court decision is stated.