Judge quashes decision of planning inspector over “inflexible and mechanistic” approach to policy conflict on flood risk

Mrs Justice Lieven, sitting in the High Court, said in her judgment: “Taking into account all the matters set out in the [decision letter], the decision is a somewhat surprising one. There was only one issue that remained outstanding, namely flood risk. All other reasons for refusal had been resolved.

“In respect of flood risk the inspector concluded that not merely was there no unacceptable actual flood risk on the site, but further that the proposal would lower the likelihood of flood risk off site, i.e. the betterment she referred to…

“Therefore, in respect of substantive, as opposed to policy ‘harm’ from the development, there was none.”

The case was brought under s.288 Town and Country Planning Act 1990 by Gladman Developments against the Secretary of State for Housing, Communities and Local Government and Lancaster City Council, which had refused permission for 644 homes and associated amenities on the site.

Gladman raised two grounds of appeal from the decision of the planning inspector.

The first was that she erred when she treated policy on flood risk in the National Planning Policy Framework (NPPF) as establishing a requirement that planning permission must be refused in every case where a sequential test is required but not undertaken.

Gladman argued in its second ground that the inspector erred in failing to take an obviously material consideration into account namely another inspectors decision in a similar case.

Lieven J heard the site is within an area identified as a broad location for growth in the statutory development plan, but Lancaster refused planning permission for reasons relating to highways infrastructure, urban design, shadow flicker and flood risk but only the last remained in contention when the inquiry sat.

The inspector’s consideration of flood risk recorded that only a “very small area" lay in a medium to high flood risk zone and examined whether a sequential test of flood risk was required:

She accepted the development had the potential to reduce flood risk because of its proposed surface water drainage strategy.

But the inspector then concluded she should reject the appeal because she found that a sequential test had been required there was a breach of policy DM33 of the Local Plan, the NPPF and Planning Practice Guidance.

Lieven J said the decision letter had to be read as a whole and “the outcome of doing so is to conclude that the inspector did err in her interpretation of the policy”.

The judge said: “Considering the decision as a whole, it is apparent that she viewed the lack of a sequential assessment as fatal to the proposal, without carrying out any proper or meaningful balance with the other policies in the development plan and NPPF, and the other material considerations. She therefore did not approach the policy conflict in accordance with s.70(2) [of the Town and Country Planning Act 1990] and the caselaw.”

Lieven J said this led to the erroneous decision.

The inspector had found a “clear reason” for refusal “in line with footnote 7” by the failure to undertake a sequential test.

“She does not weigh that departure from policy against the matters she has set out in the earlier paragraphs of the planning balance section,” Lieven J said.

“She appears to assume that because there is this departure and that it is capable of being a ‘clear reason’ within footnote 7, that is the end of the matter. There is no explanation as to why that departure outweighs the other material considerations… there is no balancing of that departure from the development plan, with the other policies such as on the delivery of housing, which accord with the development plan.”

Lieven J said the inspector’s approach had been that once she has found something capable of being a ‘clear reason’, “she then thinks that she does not need to balance the other factors. That is a clear error of law.”

The judge added: “Ground One is not a reasons challenge. The error of law in the [decision letter] is that reading DL98-99 together it appears that the Inspector has taken an inflexible and mechanistic approach to the policy conflict, which is plainly not in accordance with the statutory provisions and the caselaw, inter alia in Asda Stores at [41].”

Mrs Justice Lieven quashed the inspector’s decision but rejected the second ground which concerned her failure to take into account a similar inspector's decision which interpreted the same policy issues in a completely different way. 

The judge said: “In order for another inspector's decision to be a mandatory material consideration even where it was not drawn to the inspector's attention, there would have to be some very striking element which simply could not be ignored. There is no factor here that puts the present case into that category.”

Mark Smulian