Thomas Bates & Son Ltd., R (on the application of) v Secretary of State for Transport, Local Government and the Regions & Anor

MR JUSTICE HARRISON: This is an application under section 288 of the Town and Country Planning Act 1990 to quash a decision, dated 30th January 2004, made by an inspector appointed by the first defendant, the First Secretary of State, dismissing the claimant's appeal against the refusal of the second defendant, Maldon District Council, to grant planning permission for the construction of 124 dwellings and associated ancillary development at Hall Road, Heybridge, Maldon in Essex.

To the south of the site lies the River Chelmer where it joins the Blackwater Estuary, the site being bounded by the sea defence wall. To the east are lakes formed by former gravel workings. To the north is the Blackwater and Chelmer canal.

The proposed development was the subject of a previous appeal decided by the same inspector which was subsequently quashed by consent by the High Court. The inspector had decided in the claimant's favour on objections relating to nature conservation, highway safety and effect on the conservation area, but he had decided against the claimant on an objection relating to the risk of tidal flooding. It was the decision on the latter aspect which led to the quashing of the decision.

The reopened public inquiry which followed that decision was solely concerned with the flooding issue. The matters which were specified on behalf of the first defendant as being relevant to that issue were the level of flood risk at the appeal site, the flood risk assessment and proposed alleviation measures, whether the development would meet the precautionary principle and the sequential test in PPG 25 (Development and Flood Risk), the settlement policy for the area in the development plan, and Housing Land Availability and the Urban Capacity Study with a comparative assessment of the likely flood risk of all available housing sites.

The other issues which had been dealt with at the previous inquiry, which included sustainability of the appeal site, were not reconsidered at the reopened inquiry. They involved some positive findings in favour of the proposed development which were still relevant to the decision on the reopened inquiry so that that decision has to be read in conjunction with the earlier decision.

In giving his conclusions for dismissing the appeal following the reopened inquiry, the inspector stated in paragraphs 30 and 31 of the decision letter as follows:

In coming to those conclusions, the inspector had to apply the sequential test in PPG 25. It is that aspect which forms the subject matter of the first ground of this application. The main point in issue is the correct interpretation and application of that sequential test. That involves consideration of the relevant provisions of PPG 25. A number of paragraphs of PPG 25 were referred to during the course of the hearing but, for the moment, I refer to paragraphs 30 and 31 and Table 1 of that document.

Paragraph 30, insofar as is relevant to this case, states as follows:

Table 1 is headed "Planning response to sequential characterisation of flood risk". It is divided into two columns. The left hand column is headed "Flood zone (see Note a)". The right hand column is headed "Appropriate planning response". The left hand column specifies three flood zones. Zone 1 is described as "Little or no risk", and the planning response is "No constraints due to river, tidal or coastal flooding". Zone 2 is described as "Low to medium risk", and the planning response, put shortly, is "Suitable for most development". Zone 3 is described as "High risk (see Note b)", specifying an annual probability of tidal and coastal flooding, with defences where they exist, of 0.5 per cent or greater. The planning response for Zone 3 is sub-divided into three parts: (a) Developed areas; (b) Undeveloped and sparsely developed areas; and (c) Functional flood plains. Under "(a) Developed areas", it is stated:

Following the Table there are two Notes, Note (a) and Note (b), which, as I have mentioned, were referred to in Table 1. They state as follows:

Paragraph 31, insofar as relevant, then states:

A bit further on in that paragraph it states that flood defences for most new housing developments should be designed and constructed to protect against a flood with an annual probability of 0.5 per cent for coastal flooding. A flood with an annual probability of 0.5 per cent equates to a 1 in 200 year flood.

Paragraph 69, which was referred to in Note (b) and which is headed "Development behind existing defences", states:

Paragraphs 12 and 13 of PPG 25 explain that the objectives of sustainable development require that action through the planning system to manage development and flood risk should be based on the precautionary principle and that, in accordance with that principle, planning authorities should follow the sequential test set out in paragraph 30 and Table 1.

Paragraph 24 of PPG 25 states that the flood plain maps provided by the Environment Agency do not differentiate between areas which have flood defences and those which do not. That is reflected in Note (a) to Table 1.

It is agreed in this case that the appeal site lies within Zone 3, as shown on the flood plain map, and that it falls under the heading of "(a) Developed area". It is therefore agreed that it is a Zone 3(a) site.

The first ground of this application is that the sequential test in paragraph 30 and Table 1 should take into account the actual risk of flooding. In particular, it should take into account whether or not there are flood defences. Reliance is placed, firstly, on the "planning response" column in Zone 3(a) which refers to preference being giving to areas already defended to the relevant standards; secondly, to Note (a) which refers to the identification of areas currently protected by defences and the standard of those defences; thirdly, to Note (b) which refers to development not being permitted where sea defences would not provide an acceptable standard of safety over the lifetime of the development; and fourthly, to paragraph 31 which states that, in applying the sequential test, planning authorities should take account of the resulting level of actual risk in considering applications for development.

The complaint is that the inspector in this case did not take into account the actual risk of flooding but simply applied the sequential test on the basis of the site being shown on the flood plain map as a Zone 3 high risk site, which is only an indicative or theoretical notation and which does not take into account the existence of a flood defence. The claimant says that, if the actual risk of flooding had been taken into account, the evidence was that the flood defence provided protection to the standard required by PPG 25, that is to say, protection against a 1 in 200 year flood, as was accepted by the Environment Agency.

The first defendant says that the claimant's case is based on a flawed interpretation of the sequential test and that the inspector's interpretation was unimpeachable. The first defendant's case is that the sequential test is founded on a zoning system consisting of three zones determined by the flood plain maps. If the site falls into Zone 1, there are no further constraints. If the site falls into Zones 2 or 3, it must be shown that there are no reasonable options available in a lower risk category consistent with other sustainable development objectives. It is submitted that the appeal site falls at that hurdle because there was a large number of sites in the local plan area in Zone 1 and a few in Zone 2. It is contended that the actual risk of flooding for a Zone 3(a) site would only be taken into account if there were no reasonable options in Zones 1 and 2 consistent with other sustainable development objectives. As there were such reasonable options within Zones 1 and 2 in this case, the position was not reached where actual risk had to be considered, and the matter fell to be dealt with simply on the zoning categories in accordance with the precautionary principle.

That interpretation of the sequential test in PPG 25 was said by the first defendant to be consistent with the precautionary principle referred to in PPG 25. Reference was made to paragraphs 8 and 11 of PPG 25. Paragraph 8 states that planning authorities should apply the precautionary principle to decision making so that the risk is avoided where possible and managed elsewhere. Paragraph 11 states that a sustainable approach to flood risk will involve avoiding additional development in some areas and, where that is not possible, ensuring that the flood risk is minimised.

It is submitted on behalf of the first defendant that the claimant's interpretation unpicks the zoning scheme upon which the sequential test is founded. The three zones are determined by the flood plain map, and actual risk only arises for consideration where there is not available a comparative site in a lower risk zone. That was said to accord with the precautionary principle which reflects the fact that flooding, with its serious consequences, is not susceptible to certainty of prediction so that its risk should be avoided by starting with a preference for sites in lower risk zones because the higher risk zone is dependent on the effectiveness of flood defences and the accuracy of the prediction of the floods themselves.

I have to say that I have not found the proper interpretation of the sequential test in PPG 25 an easy matter. Those who framed it could have made it easier to understand. There is no doubt that the sequential test is founded on a zoning system consisting of three risk zones which are based on flood plain maps which do not take into account the existence of flood defences. The issue is whether, and if so at what stage, the existence of flood defences should be taken into account when applying the sequential test. A sequential test that did not take flood defences into account under any circumstances would defy common sense and render superfluous some of the provisions of Table 1 and the notes to that Table. Neither side contends for that position. The claimant contends that the existence of a flood defence should be taken into account as soon as the relevant risk zone has been ascertained. The first defendant contends that it should only be taken into account if there are no reasonable options available in a lower risk category.

In my view, the first defendant's contention is right. The proper application of the sequential test has to be ascertained in the context of the provisions of PPG 25 as a whole. The guidance in PPG 25 relating to the issue of flood risk is that planning authorities should apply the precautionary principle which requires a risk-based search sequence to avoid such risk where possible and to manage it where that is not possible. It follows that the lowest risk option should be adopted when it is possible to do so. That is, in effect, what paragraph 30 and Table 1 of PPG 25 set out to achieve. Priority should be given to sites in descending order of the flood zones in Table 1. It should be shown that there are no reasonable options available in a lower risk category consistent with other sustainable development objectives before permitting development of a site in a higher risk category. Thus far, the system is governed solely by reference to the risk category and the availability of reasonable options in a lower risk category. The risk categories are based on the flood plain maps and therefore the existence of flood defences is not taken into account. That is consistent with the precautionary principle because the need for the existence of flood defences inherently means that risk is involved and is being managed, which is to be avoided if a lower risk category is available.

If, however, no reasonable option is available in a lower risk category, then the existence of flood defences comes into consideration. If, for instance, in those circumstances the site is a Zone 3(a) site, as it is in this case, preference would be given over another Zone 3(a) site if it was already defended to the appropriate minimum standard maintainable for the lifetime of the development, as is expressly stated in the "Appropriate planning response" column for a Zone 3(a) site in Table 1. It is in that context, when there are no reasonable options in a lower risk category, that the Notes to the Table become relevant. If it were otherwise, the system would not operate as a zoning system which is plainly what is intended. The emphasis is on the category, not on whether the site is defended or not.

The result of the sequential test founded on the risk category is that a site will fail the test if reasonable options are available in a lower risk category even though the site itself may be a defended site. That may appear harsh, but it is consistent with the precautionary principle.

In my view, the inspector in this case correctly applied the sequential test. He referred to the test correctly in paragraphs 3, 14 and 19 of the decision letter and he concluded that there were reasonable options available in lower risk categories consistent with other sustainable development objectives. The latter conclusion, relating to reasonable options, is the subject matter of a separate ground of this application but, in my view, there was no error of law in the inspector's interpretation of the sequential test in PPG 25.

The second ground of the application is that the inspector erred in concluding that the appeal site was at high risk of tidal flooding when it was accepted that the existing flood defence provided the 1 in 200 year level of protection provided by PPG 25. Paragraph 14 of the decision letter refers to the appeal site being at significant risk of tidal flooding, paragraph 21 refers to it being in a high risk flood zone next to the sea wall, paragraph 24 refers to the high flood risk attached to residential development of the site, paragraph 29 refers to development of this high flood risk site, paragraph 30 concludes that the site is at high risk of tidal flooding and states that the site would remain at high risk of a 1 in 200 year tidal flood and, finally, paragraph 31 concludes that the high risk of flooding of the site remains an obstacle to its future development.

It is contended that, in all of these references or conclusions, the inspector only had regard to the flood plain map and failed to have regard to the actual risk of flooding and that he thereby failed to have regard to the undisputed level of protection provided by the existing flood defence which, as a result of the updated flood risk assessment since the last inquiry, was even better than that accepted by the inspector in his previous decision letter when he had concluded that the proposed improvement works to the sea wall would provide the level of protection required under PPG 25 for the lifetime of the development.

That ground is really interconnected with the third ground of the application, so I deal with them together. The third ground of the application challenges the inspector's conclusion that the appeal site was at higher risk of flooding than some other sites, in particular the site at Jacob's Farm which has a capacity for 90 houses but which is within the same flood plain as the appeal site within the Heybridge Basin off Goldhanger Road to the north of the canal.

In paragraph 13 of the decision letter, the inspector stated:

In paragraph 19 of the decision letter, the inspector stated that the Environment Agency considered that all of the other identified sites would be at less risk than the appeal site, despite some of them also falling within the flood plain. The inspector referred in paragraph 22 to the availability of housing land at less risk of flooding elsewhere. In paragraph 30 he concluded that the appeal site should only be developed for housing if there are no other housing sites with a lower flood risk, and in paragraph 31 he reiterated that the appeal site is not a site that should be brought forward for development ahead of other safer areas. In paragraph 21, he specifically referred to the Jacob's Farm site and an adjoining site for six houses at 55, Goldhanger Road as being in the upper limit of the tidal flood plain.

It was suggested that the inspector's conclusions in paragraph 13 of the decision letter may have been derived, at least in part, from paragraphs 4.4 and 4.6 of the proof of evidence given at the inquiry by Mr Doe on behalf of the Council who stated that those paragraphs, amongst others, constituted a joint statement by him on behalf of the Council and by Mr Barlow on behalf of the Environment Agency. In paragraph 4.4 it was stated that comparisons with other sites in Flood Zone 3(a) showed that the appeal site was the closest to the source of tidal flooding and had the lowest average level AOD. Paragraph 4.6 of the joint statement stated as follows:

Mr Mead, the claimant's consulting engineer who gave evidence at the inquiry, has made a witness statement in these proceedings in which he says that he explained to the inspector that paragraph 4.6 of the joint statement was wrong because it was written before Mr Doe and Mr Barlow had seen the revised flood risk assessment. Furthermore, he states that, in cross-examination, Mr Barlow accepted the revised flood risk assessment and that it showed the appeal site to be protected to a better standard than is required by PPG 25, he accepted that overtopping and breach of the sea wall are accommodated at the appeal site and that the flood defences cater for a greater than 1 in 200 year tidal surge, and he also accepted that paragraph 4.6 of the joint statement, having been written before the revised flood risk assessment was received, was not correct.

Furthermore, Mr Mead states in his witness statement that he gave evidence at the inquiry about what he called "the hydraulic independence point", the thrust of which was that the appeal site is hydraulically separate from the Jacob's Farm site and the other Goldhanger Road site in the Heybridge Basin to the north of the canal. Having regard to the various levels, those sites would, in his opinion, be the area hit first by a tidal surge coming up the Estuary and would suffer flooding before the appeal site. His evidence therefore was that those sites would be at greater risk of flooding than the appeal site.

The two points made on this aspect of the matter on behalf of the claimant are, firstly, that the inspector failed to take account of the concessions made by Mr Barlow which, it is said, undermines the inspector's conclusions and, secondly, that he failed to take into account Mr Mead's hydraulic independence point which showed that the other sites were at greater, rather than lesser, risk of flooding than the appeal site.

I have to say that I am concerned at the repeated references throughout the decision letter to the appeal site being at a higher risk of flooding and being at a higher risk than other sites. It seems to me that those references are derived from the appeal site being a Zone 3 high risk site as derived from the flood plain map. That is justifiable for the purposes of the sequential test, but for other purposes it is necessary to take fully into account the fact that the site has a level of flood protection that complies with the standard required by PPG 25. It was conceded by Mr Barlow on behalf of the Environment Agency that the site did have that level of protection. I find it difficult to say that the inspector did not take account of Mr Barlow's concession at all because at paragraph 11 of the decision letter he stated:

The inspector does not say whether or not he accepts the Environment Agency's evidence but he certainly does not reject it. However, it seems to me that he thereafter loses sight of it. In his conclusions in paragraph 30 he stated that the site would remain at high risk of a 1 in 200 year flood, whereas the evidence was, if he accepted it, that the site was protected against a 1 in 200 year flood. The inspector wrongly stated in paragraph 19 of the decision letter that the Environment Agency considered that all of the other sites would be at less flood risk than the appeal site despite some of them also falling within the flood plain. It was subjected on behalf of the first defendant that the inspector must have been referring there to all other Zone 1 and 2 sites, but that cannot be so, not only because he did not say so but also because he referred to some of them being in the flood plain which, of course, would include the Jacob's Farm site. Not only is that statement wrong but it seems to me to indicate that he had lost sight of the Environment Agency's evidence as recorded at paragraph 11 of the decision letter, and as conceded by Mr Barlow at the inquiry, and also that he had not taken into account Mr Mead's hydraulic independence point which, if right, would mean that the Jacob's Farm site and the 55, Goldhanger Road site would flood before the appeal site, and would therefore be at greater rather than lesser risk of flooding than the appeal site.

I can understand the claimant feeling aggrieved that the level of flood protection for the appeal site was not properly taken into account by the inspector. That sense of grievance is not justified so far as the application of the sequential test is concerned for the reasons that I have given, but it is, in my view, justified in relation to the other matters considered by the inspector. In a sense, the fact that the flood defence is not taken into account in the sequential test, because of other reasonable options being available in lower risk categories, makes it all the more important for it to be taken into account as a material consideration when considering the other aspects of the case.

I therefore conclude that, for purposes other than the sequential test, the inspector failed properly to take into account the actual flood risk to the site, having regard to the flood protection afforded to it, and also that he failed to have regard to Mr Mead's hydraulic independence point, relating to the comparative flood risk to the Jacob's Farm site.

There are two subsidiary points which were included under the third ground. Firstly, it was said that the inspector was wrong when he said in paragraph 15 of the decision letter that the site relied for safety on the improvement and maintenance of the flood defences and other remedial measures, because the evidence was that the site is adequately defended now without the improvement or remedial measures referred to. Secondly, complaint was made that it was not clear what the inspector was referring to in paragraph 13 of the decision letter when he referred to a catastrophic event. It was said that, if he was referring to a 1 in 200 year flood, he failed to take into account that the site is defended against such an event and that, if he was referring to a more extreme event than that, he was speculating about an unforeseen event which is incapable of a rational comparative exercise.

The first of those two points really does not take the matter any further because I have dealt with the matter on the basis that the evidence was that the site was adequately defended. So far as the second of those points is concerned, it is clear that, in referring to a catastrophic event, the inspector was referring to a flood greater than a 1 in 200 year flood. He may have been picking up on the words "in catastrophic circumstances" contained in paragraph 4.6 of the joint statement of Mr Doe and Mr Barlow. In any event, it is clear that he is referring to it in the context of the consequences of a flood rather than the statistical probability of a flood.

The fourth ground of the application is that the inspector failed to carry out a proper comparison of the reasonable options relating to other sites compared to the appeal site, the inspector having described the appeal site in paragraph 15 of the decision letter as scoring highly with regard to other sustainable objectives. Complaint was made that there was no assessment of the availability, size or remoteness of other sites. In particular, it was said that the inspector had not weighed in the balance that the Jacob's Farm site was not a brownfield site unlike the appeal site which was the most substantial site within the local plan area.

Whilst I would accept that the inspector could have dealt with the other sites in lower risk categories with greater particularity, the way in which he dealt with it was, in my view, adequate.

In paragraph 19 of the decision letter he stated:

The inspector was, in my view, correct in saying that the process would not lead to the rejection of all sites less sustainable than the appeal site. He was simply considering whether there were other sites available in lower risk categories which were reasonable options consistent with other sustainable development objectives. He concluded in paragraph 21, in much the same way as he had in paragraph 19, that there was sufficient land available within the urban area without the need to allocate greenfield sites. He therefore dealt both with availability and location. He also dealt in paragraph 20 with the issue of affordable housing. Insofar as he dealt with the Jacob's Farm site in this context, it was not necessary for him to do so because, for the purposes of the sequential test, he was only concerned with sites in a lower risk category. In his conclusions, he expressly stated in paragraph 30 of the decision letter that the other available sites were sustainable in terms of location and availability.

I therefore conclude that the fourth ground of the application is not made out and that the inspector dealt adequately with the question of the availability of reasonable options in lower risk categories.

The fifth and final ground of the application is that the inspector failed to carry out an overall balancing exercise before reaching his final conclusion. The point was made that, even if the appeal site failed the sequential test, it was still necessary to carry out an overall balancing exercise. Reliance was placed on the advantages of the appeal site referred to in the inspector's first decision letter. It provided affordable housing, there were no other planning constraints, it was previously developed land, it met the broad principles of sustainability from a planning point of view, it accorded with local plan policy, and it was likely to enhance the character and appearance of the conservation area. It was suggested that many of those matters were not taken into account by the inspector in an overall balancing exercise. Above all, it was said that the inspector had not taken into account, in such an exercise, the fact that the site was adequately defended against flooding.

The inspector referred in paragraph 4 of the decision letter to the need for a balanced flexible approach and to the emphasis in PPG 3 on urban regeneration and the redevelopment of previously developed land to minimise the need for greenfield sites. He came back to that theme in paragraphs 23 to 25 of the decision letter and applied it to the circumstances of this case. Earlier, in paragraph 15, he had referred to the fact that the appeal site scored highly with regard to other sustainable development objectives. He stated in paragraph 2 of the decision letter that the decision letter was to be read in conjunction with the earlier decision letter. He referred in paragraph 31 to the fact that the proposed development met the general planning criteria regarding settlement policy, the conservation area, and traffic and transport.

Although I would accept that the inspector did not set out an overall balancing exercise in the way that the claimant would have liked to have seen, I would not criticise the decision letter on that score as a matter of law, save in one respect which is simply a reflection of the failure which I mentioned earlier, namely a failure to take into account and put into the balance the actual risk of flooding arising from the degree of protection afforded by the sea wall. In my view, that should have been taken into account in the general balance and I am not satisfied that it was. That is, in effect, a reflection of the failure that I referred to earlier when dealing with the second and third grounds of the application.

I have considered whether or not I ought to quash the inspector's decision on account of the failures that I have identified. I have held in favour of the first defendant on the important issue of the interpretation of the sequential test in PPG 25, and I am very conscious of the fact that uppermost in the inspector's mind was the consequences of a flood for a site adjoining the sea wall, because he made several references to that aspect in the decision letter. Bearing those matters in mind, if I were to quash the decision, it may well be that a subsequent decision would reach the same conclusion. However, I cannot say that that would necessarily be so and, in my view, it would be unfair to the claimant to exercise my discretion and refuse to quash the decision. In those circumstances, and for the reasons that I have given, the application succeeds on the grounds that I have identified, and the decision will be quashed.

MR DINKIN: I am obliged to your Lordship. I ask for an order in those terms, my Lord. I have agreed with my learned friend that whichever way the decision went, costs should be assessed if not agreed. We do not have the material in court, I regret, for summary assessment today -- it was more than a one-day case -- but, my Lord, my friend and I have agreed that that should be your Lordship's order if your Lordship so agrees.

MR JUSTICE HARRISON: Thank you very much. Yes, Mr Coppel.

MR COPPEL: My Lord, in relation to that, it is correct that if there is to be an order in relation to costs it ought to be taxed if not agreed. Your Lordship has found for the claimants in relation to the interconnected grounds 2 and 3, but against the claimant in relation to its foremost point, namely the interpretation of PPG 25 which preoccupied the time of the court, and against the claimant in relation to grounds 4 and 5.

My Lord, it is the new procedure, certainly since the CPR, that an issues-based cost order is appropriate, particularly in a matter like this where there were discrete grounds which were run by the claimant upon which the claimant has, in relation to grounds 1,4 and 5, been unsuccessful and, my Lord, in those circumstances -- it is a broad brush approach which needs to be adopted -- but in those circumstances we say that the appropriate order, bearing in mind that the claimant has lost on its principal ground and two ancillary grounds, is that there be no order for costs in this matter.

MR JUSTICE HARRISON: Thank you very much. Mr Dinkin, what do you say about that?

MR DINKIN: I do resist that, with respect. Your Lordship did indicate that your Lordship did not find the PPG 25 issue an easy one to resolve. My Lord, even though I have lost on that matter, which I accept was my first and principal ground, my Lord, nevertheless, I do submit it was an issue which I was entitled to bring to your Lordship. It was a matter which I was justified in doing so, my Lord, and in those circumstances it would be wrong, in my respectful submission, to penalise the claimant because he has raised an issue which was difficult, as your Lordship has acknowledged, and on which he subsequently lost. My Lord, his behaviour, in my respectful submission, cannot be criticised to the extent of depriving him of costs. In respect of that issue, my Lord, I do resist the point my learned friend has made.

MR COPPEL: I make quite clear that there is no criticism intended of my learned friend at all, but the authorities -- my Lord, I can take you to the authorities. The authorities now are that it does need to be decided on an issues basis without necessarily implying any criticism of the successful party who has been unsuccessful on a particular issue.

MR JUSTICE HARRISON: Well, as you both know, costs are in the discretion of the court. It is right to say that the question of the interpretation of PPG 25 was an important part of this case, and I have held in favour of the First Secretary of State in relation to that. On the other hand, I have held in favour of the claimant in relation to grounds 2 and 3, and partially in relation to ground 5. My decision on the issue of cost, taking into account that situation, is that the first respondent should pay the claimant's costs, save in relation to the issue of the interpretation of PPG 25, and that is the sole order that I propose to make in relation to costs. Those costs will be assessed if not agreed.

MR DINKIN: My Lord, may I raise one other matter?

MR JUSTICE HARRISON: Yes.

MR DINKIN: My Lord, I am instructed to ask for your Lordship's permission to appeal in relation to the PPG 25 issue. My Lord, of course it is a slightly unusual circumstance as I have won at the end of the day in the sense that the letter is being quashed and will need to be redetermined. The problem from the claimant's point of view, my Lord, is that it will have been redetermined in the light of your Lordship's judgment.

My Lord, I would like to invite your Lordship to give me permission to appeal on that issue. My Lord, whether it will be pursued or not, of course, I cannot say. It really depends on what view we take as to overall scope when the matter is redetermined by the Secretary of State. Some authorities say, of course, that although it is quashed on particular grounds, nevertheless the Secretary of State has to reach a decision de novo, having regard to all material consideration to his statutory duty. My Lord, it may well be that the Secretary of State will however wish to be guided by what your Lordship has obviously said in relation to the construction of PPG 25.

It is an important matter, I respectfully submit. It is not only of course relevant to this case, but all cases where there is a flood defence to a site, and in all those cases will, of course, require the application of the sequential test. What your Lordship has said is of general importance to all flood cases where there are existing flood defences.

In those circumstances, again having regard to your Lordship's indication that your Lordship did not find it an entirely easy matter to resolve, I would respectfully ask your Lordship to give me permission to appeal on that point.

MR JUSTICE HARRISON: Yes. Mr Coppel.

MR COPPEL: My Lord, it is a slightly odd situation insofar as, although the unsuccessful party, the Secretary of State does oppose permission on this basis. Your Lordship has, we submit, come up with the correct interpretation of PPG 25. It is for my learned friend to demonstrate that that interpretation has an arguable prospect of being overturned before the Court of Appeal, and has not identified any basis for so saying. On that basis, my Lord, we say your Lordship has come up with the right decision, and permission ought not to be granted.

Were your Lordship to grant my learned friend permission, and only on that basis, then we would ask for permission to appeal, your Lordship, in relation to grounds 2 and 3, insofar as that if the matter is to go up to the Court of Appeal, it would be in relation to those as well, rather than just confining it, in a sense, to the academic issue.

MR JUSTICE HARRISON: Yes, thank you very much. Nothing further you want to say about that, Mr Dinkin? Although it is right to say that I did say in my judgment, when dealing with the question of the interpretation of PPG 25, that I did not find it an easy matter, which is true, nevertheless I feel confident in relation to the conclusion which I have reached, and for that reason I am going to refuse leave to appeal. If you wish it, you must go to the Court of Appeal for leave.

MR DINKIN: I am obliged.

MR JUSTICE HARRISON: Thank you both very much.

MR COPPEL: I am grateful to your Lordship.