My previous blog post spoke to the uncertainty that has arisen since the Mead/Redrow High Court Judgment was handed down in February 2024. The judgment held that the Planning Practice Guidance (‘PPG’) has the same legal status as the National Planning Policy Framework (‘NPPF’). This means that, as detailed in the PPG, the sequential test should take account of all sources of flood risk, including surface water flood risk, and not just fluvial flood risk. It also means that, even if a site-specific flood risk assessment (‘FRA’) concludes that mitigation measures or existing flood defences result in a low risk of flooding, the sequential test would still need to be satisfied.
Following the judgment, it has been broadly accepted that planning applications should satisfy the sequential test if any part of the site is at risk of flooding from any source, unless one of the PPG exemptions apply[1]. This gave rise to the obvious solution to avoid the sequential test by amending red-line boundary to omit areas at risk from flooding. However, the new NPPF contains a mechanism by which it will be possible to avoid application of the sequential test even if part of the site is at risk from flooding.
Changes to the NPPF
Paragraph 175 of the new NPPF includes an addition which establishes the situations when the sequential test is not required:
The sequential test should be used in areas known to be at risk now or in the future from any form of flooding, except in situations where a site-specific flood risk assessment demonstrates that no built development within the site boundary, including access or escape routes, land raising or other potentially vulnerable elements, would be located on an area that would be at risk of flooding from any source, now and in the future (having regard to potential changes in flood risk).
The sequential test can now be avoided at application stage on sites at risk from flooding if it is possible to locate the built development, access or escape routes, land raising, and other vulnerable elements away from any areas at risk from flooding from any source. Whilst this might appear to be a modest change in policy, it is important. It will enable the delivery of sites where only part of the area is at risk of flooding, without the challenges and risks associated with the application of the sequential test.
By requiring those part of a site that are at risk of flooding to remain free from built development or sensitive uses, the new approach will continue to minimise the risks associated with flooding. The Government’s response to the draft NPPF consultation reiterates, as established in the PPG[2], that a site-specific FRA cannot rely on mitigation measures that require active maintenance. This is because their effectiveness in mitigating flood risk cannot be guaranteed in perpetuity. Active mitigation measures therefore cannot be relied on to justify not satisfying the sequential test, if the elements listed in NPPF paragraph 175 are positioned on areas at risk from flooding.
A further addition to this part of the NPPF is set out in paragraph 173. This states that a sequential risk-based approach should also be taken to individual applications in areas known to be at risk now or in the future from any form of flooding. The Government’s response to the draft NPPF consultation states this paragraph has been inserted to clarify the difference between applying the sequential test to plan-making and decision making. This paragraph previously only related to the role of the sequential test at plan making stage and so the Government is now giving it a greater remit.
NPPF paragraph 180 states that where planning application come forward on allocated sites which were previously subject to the sequential test at plan preparation stage, it will not be necessary to reapply the sequential test. It is not clear how this will play out for applications on allocations where the strategic flood risk assessment (‘SFRA’) that informed the plan did not consider all forms of flooding. In the context of new NPPF paragraph 173, it is also not clear how to judge whether the SFRA has sufficiently considered future flood risk. However, paragraph 180 does state that “the exception test may need to be reapplied if relevant aspects of the proposal had not been considered when the test was applied at the plan-making stage, or if more recent information about existing or potential flood risk should be taken into account.” The list of considerations that might fall within this caveat may be extensive.
What if the built development, access or escape routes, land raising, or other potentially vulnerable elements of my scheme are located on areas of the site at risk from flooding?
If these elements cannot be positioned to avoid areas known to be at risk of flooding from any source, either now or in the future, the sequential test will need to be satisfied. My previous blog provided some practical tips to navigate the sequential test, including how to tightly define the criteria for identifying “reasonably available sites”. The Government’s response to the draft NPPF consultation confirms than a forthcoming update to the PPG is on the way in “early 2025” and that this will clarify the definition of “reasonably available sites” that should be considered as part of the sequential test.
What next?
The new NPPF has confirmed that the sequential test is here to stay for sites at risk of flooding from surface water (and all other sources). We are also now clear that site-specific FRAs cannot rely on active mitigation measures to avoid undertaking the sequential test, where one would otherwise be required. Further updates to the PPG on this topic are expected in early 2025. In addition to clarifying the definition of “reasonably available sites”, it would be helpful if the following points are also clarified by the update to the PPG:
- That failing the sequential test does not preclude granting planning permission; it’s only one consideration in the overall planning balance;
- Whether the sequential test needs to be satisfied again for planning applications on allocated sites, where the SFRA did not consider flood risk from all sources now and in the future;
- How the catchment for identifying reasonably available sites should be defined;
- How the scale and density of a proposed development should inform the identification of reasonably available sites; and,
- Whether (and how) one should identify and assess a series of smaller sites as part of the sequential test.
The Mead Case was heard by Court of Appeal in November 2024; one of the issues that was addressed through this case was the relationship between the NPPF and PPG. The forthcoming judgment may have a bearing upon the scope and timing of the forthcoming update to the PPG. Whilst the new NPPF has moved things on in respect of the consideration of flood risk at development management stage, it is clear that things are still far from resolved.
Image credit: Chris Gallagher via Unsplash
