North Somerset District Council v Secretary of State for Housing Communities and Local Government & Anor

This is a statutory review under section 288 of the Town and Country Planning Act 1990 to challenge the Decision dated 18 March 2025 by the first defendant (“the Secretary of State”) to allow an appeal by the second defendant (“Persimmon”) and to grant outline planning permission for 190 homes, and earthworks to facilitate sustainable drainage systems, on land at Rectory Farm (North), Chescombe Road, Yatton BD49 4BZ (“the Scheme”). The site is located to the east of the M5 at a point approximately 5km from the coast.The Decision was made by an inspector, David Prentis BA BPI MRTPI, appointed by the Secretary of State (“the Inspector”). Permission for the statutory review was granted by Johnson J on 2 October 2025.

There are two grounds of review. As set out in the Statement of Facts and Grounds they are:

Central to the issues in this appeal are the terms of the National Planning Policy Framework (“NPPF” or “the Framework”) in respect of the Flood Risk Sequential Test (“the sequential test”) and the exception test.

Paragraph 14 of the NPPF is concerned with “Meeting the challenge of climate change, flooding and coastal change”. Under “Planning and flood risk”, it contains the following:

“172.

All plans should apply a sequential, risk-based approach to the location of development – taking into account all sources of flood risk and the current and future impacts of climate change – so as to avoid, where possible, flood risk to people and property. They should do this, and manage any residual risk, by:

a)

applying the sequential test and then, if necessary, the exception test as set out below: …..”

173.

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, by following the steps set out below.

174.

Within this context the aim of the sequential test is to steer new development to areas with the lowest risk of flooding from any source. Development should not be allocated or permitted if there are reasonably available sites appropriate for the proposed development in areas with a lower risk of flooding. The strategic flood risk assessment will provide the basis for applying this test.

…

177.

Having applied the sequential test, if it is not possible for development to be located in areas with a lower risk of flooding (taking account of wider sustainable development objectives), the exception test may have to be applied. …

178.

The application of the exception test should be informed by a strategic or site-specific flood risk assessment, depending on whether it is being applied during plan production or at the application stage. To pass the exception test it should be demonstrated that:

a)

the development would provide wider sustainability benefits to the community that outweigh the flood risk; and

b)

the development will be safe for its lifetime taking account of the vulnerability of the users, without increasing flood risk elsewhere, and, where possible, will reduce flood risk overall.

179.

Both elements of the exception test should be satisfied for development to be allocated or permitted.”

Paragraph 11 of the NPPF also sets out a presumption in favour of sustainable development. This includes for decision-making that:

“d)

where there are no relevant development plan policies, or the policies which are most important for determining the application are out-of-date, granting permission unless:

i.

the application of policies in this Framework that protect areas or assets of particular importance [footnote 7] provides a strong reason for refusing the development proposed; or

ii.

any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole, having particular regard to key policies for directing development to sustainable location, making effective use of land, securing well-designed places and providing affordable homes, individually or in combination.”

Footnote 7 identified the relevant policies referred to in the Framework including those relating to “areas at risk of flooding or coastal change”. It was not in dispute that this paragraph was applicable to the Application.

On 27 March 2023, Persimmon submitted an Application for outline planning permission for the Scheme (re. 23/P/0664/OUT). The Application was accompanied by documents which included a report setting out why the Flood Risk Sequential Test (as set out in the NPPF) was passed.

On 20 June 2023, the Secretary of State dismissed an appeal against North Somerset Council’s refusal of an application for outline planning permission for a residential development on a site known as Lynchmead Farm. In that case, the inspector found that the appellant had failed to satisfy the sequential test. The appellant brought a claim for statutory review against that decision which was dismissed by Holgate J in February 2024.

In his judgment, Holgate J addressed the meaning of “reasonably available sites appropriate for the proposed development”. He said:

“173.

… Where there remains unmet need which cannot be allocated to areas satisfying the sequential test, that factor together with any other constraints, may lead to a policy decision that not all of the identified need should be met. Alternatively, it may be decided that all or some part of that residual need should be met notwithstanding that sequential test has not been satisfied. Either way, the treatment of unmet need is not an input to the sequential assessment for identifying reasonably available alternative sites. The sequential approach is not modified in those circumstances. Instead, the policy-maker will decide what to do with the outcome of applying the sequential test.

174.

A similar analysis applies in the determination of planning applications. Where there is an unmet need, for example a substantial shortfall in demonstrating a 5-year supply of housing land, that shortfall and its implications (including the contribution which the appeal proposal would make to reducing that shortfall) are weighed in the overall planning balance against any factors pointing to refusal of permission (including any failure to satisfy the sequential test). If the total size of sequentially preferable locations is less than the unmet housing need, so that satisfying that need would require the release of land which is not sequentially preferable, that too may be taken into account in the overall planning balance. But these are not matters which affect the carrying out of the sequential test itself. Logically they do not go to the question whether an alternative site is reasonably available and appropriate (i.e. has relevant appropriate characteristics) for the development proposed on the application or appeal site. Instead, they are matters which may, for example, reduce the weight given to a failure to meet the sequential test, or alternatively increase the weight given to factors weighing against such failure.

178.

I can see that if Redrow had submitted to the Inspector that there was a substantial need for housing which could not be met entirely on sequentially preferable sites (and even more so in the next 5 years), so that additional sites with a similar or worse flood risk would need to be developed, that would be a significant factor to be addressed in the overall planning balance. It could reduce the weight to be given to the failure to satisfy the sequential test. Here the Inspector gave that failure “very substantial weight” (DL 100). It would have been arguable that the flood risk implications of satisfying the unmet need for housing land was an “obviously material consideration,” such that it was irrational for the Inspector not to have taken it into account (R (Friends of the Earth Limited) v Secretary of State for Transport [2021] PTSR 190 at [116] to [120]). Alternatively, it could have been said that there was a failure to comply with the duty to give reasons in relation to a “principal important controversial issue” between the parties.”

For ease of reference, I have included in this quotation the emphasis that appeared in the skeleton argument of Lord Banner KC on behalf of Persimmon.

In light of that judgment, Persimmon submitted an updated Flood Risk Sequential Test assessment in March 2024 together with an opinion of Lord Banner KC. Having quoted (as above) from the decision of Holgate J, he expressed the opinion, reflected in his submissions to this court, that the decision made it clear that a failure to comply with the sequential test was not automatically fatal to a planning application, either within the parameters of the NPPF or having regard to the material considerations under s.38(6) of the Planning and Compulsory Purchase Act 2004. Other material considerations, including housing need and lack of a 5 (or 4) year housing supply might mean that a failure to comply with the sequential test was outweighed by the housing delivery or other benefits.

On 17 April 2024, Persimmon appealed to the Secretary of State against the claimant’s failure to determine the Application.

An Inquiry was held over 10 days between 24 September 2023 and 10 January 2025. In the meantime, the developer in the Mead case had appealed against the decision of Holgate J. The appeal was dismissed. The particular aspects of the first decision set out above were not the subject of the appeal. Persimmon, therefore, submitted to the Inspector that he should have regard to that guidance in the present case.

The Secretary of State allowed Persimmon’s appeal by a decision letter dated 18 March 2025. The decision letter is set out in some detail below but, in short, the Inspector determined that the sequential test was failed, to which he gave substantial weight, but, given the conclusions he had reached on the flood risk, he did not consider it a strong reason to refuse permission, considered that the benefits outweighed the harm, and that, having regard to paragraph 11(d) of the NPPF, he should grant permission.

There is a considerable degree of common ground between the parties on the applicable law but a difference of emphasis.

It is common ground that a claim under section 288 is confined to a review of the legality of the decision and is not a rehearing of the planning merits.

The statutory power to grant or refuse planning permission is found in section 70 of the Town and Country Planning Act 1990. Section 70(2) provides that, in dealing with the application, the authority shall have regard, amongst other things, to the provisions of the development plan, so far as material, and any other material considerations.

Section 38(6) of the Planning and Compulsory Purchase Act 2004 provides that:

“If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.”

The defendants both place some emphasis on this provision, particularly taken alongside the decision in Mead, on the basis that irrespective of the application of the sequential test and any issue as to whether the exception test is engaged, the Inspector must have regard to material considerations.

The interpretation of planning policy, including what are material considerations, is a matter of law for the Court whilst the application of policy and the weight to be given to, and the balancing of, material considerations and all matters of planning judgment are for the decision maker alone (see St Modwen Ltd. v Secretary of State for Communities and Local Government [2017] EWCA Civ 1643 at [6(3)]).

National Planning Policies are a material consideration (but not the sole material consideration) and should not displace or distort the statutory discretion. Whilst this proposition was not itself in issue, the defendants placed far greater emphasis on this nature of the NPPF and where, as it was put, it fitted into the policy framework. The defendants relied in particular on Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2017] UKSC 37:

The nature of the NPPF and the PPG was considered by the Court of Appeal in Mead [2025] EWCA Civ 32 and described at [34] as “a mature body of planning policy and guidance”:

“34.

… They have somewhat different purposes. The NPPF is a comprehensive framework of national planning policy, in which the Government sets out its general policies for planning decision-making and plan preparation. The PPG is national guidance for planning practice, which can reinforce the framework. Policies in the NPPF will generally state the Government’s objectives and purposes for various aspects of land use planning and planning decision-making, and the essential principles that apply. And – again generally – guidance published in the PPG explains how those policy objectives and purposes are to be achieved, and the principles put into practice, in the decision on an individual proposal or in the preparation of a plan.

…

38.

Both the policies in the NPPF and the guidance in the PPG are capable of being material considerations in decision-making on planning applications and appeal. And the weight to be given to such policy or guidance in a planning decision is a matter for the decision maker, subject to the court’s intervention on public law grounds. …”

The proper interpretation of planning policy is a matter of law for the court, interpreted objectively but not as if the policies were statutory or contractual provisions subject to similar rules of construction.

If the decision maker fails properly to understand or apply relevant policy, that will constitute a failure to have regard to a material consideration or amount to having regard to an immaterial consideration.

Decision letters of inspectors should be construed in a reasonably flexible way – see St Modwen at [6]:

“(1)

Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letter are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to “rehearse every argument relating to each matter in every paragraph.”

Where the court is faced with a claim or complaint that the Inspector has misunderstood policy, it should start with the proposition that he has understood it – see Hopkins Homes at [25]:

“Furthermore, the courts should respect the expertise of the specialist planning inspectors, and start at least from the presumption that they will have understood the policy framework correctly. With the support and guidance of the planning inspectorate, they have primary responsibility for resolving disputes between planning authorities, developers and others, over the practical application of the policies, national or local … their position is in some ways analogous to that of expert tribunals, in respect of which the courts have cautioned against undue intervention by the courts in policy judgments within their areas of specialist competence …”

The courtshould lookat what the inspector thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the policy (St Modwen at [6(5)]).

The decision maker must give intelligible and adequate reasons for his decision – see South Bucks DC v Porter [2004] UKHL 33 at [36]:

“[The reasons] must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such an adverse inference will not readily be drawn. … Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issue involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he had genuinely been substantially prejudiced by the failure to provide adequate reasons.”

In respect of reasons, the claimant submitted that it is not sufficient merely to set out the policy but that the decision must demonstrate that the decision maker had understood and applied it. There is an obvious tension between the approach in the submissions of the claimant and the defendants in this respect, in the sense that the defendant places the burden on the claimant to establish that the inspector had misunderstood the policy, whilst the claimant argues that it is for the inspector to demonstrate that he has understood the policy. As part of the claimant’s argument, it was submitted that if the inspector departs from a policy, he must give reasons and, if material considerations are not taken into account and no reasons are given, it can be inferred that he has misunderstood the policy and, by extension, that his decision is irrational.

In my view, that approach may be valid in some circumstances and on the facts of a particular case but it cannot be stated as a principle of the court’s approach. It involves a formulaic approach to the reading of an inspector’s decision and the “flexible” or “straightforward” reading is more appropriate and supported by authority. That is consistent with the decision of Lieven J in Gladman Developments Ltd. v Secretary of State for Housing, Communities and Local Government [2026] EWHC 51 (Admin) – referred to further below – which similarly engaged an issue as to whether the Inspector had misinterpreted policy. Lieven J at [38] – [40] addressed this issue by reading the decision letter as a whole.

Lastly, the defendants emphasised that the court should be careful to distinguish between a claim of misinterpretation and misapplication of policy and not allow the claimant to dress up the latter as the former. In Trustees of the Barker Mills Estates v Test Valley Borough Council [2016] EWHC 3028 (Admin), Holgate J emphasised this distinction as follows:

“83 … Because of the critical difference between these two types of challenge as to the juridical basis upon which a court may intervene, a claimant must not dress up what is in reality a criticism of the application of policy as if it were a misinterpretation of policy.

84.

Normally a claimant fails to raise a genuine case of misinterpretation of policy unless he identifies (i) the policy wording said to have been misinterpreted, (ii) the interpretation of that language adopted by the decision-maker and (iii) how that interpretation departs from the correct interpretation of the policy wording in question. A failure by the claimant to address these points, as in the present case, is likely to indicate that the complaint is really concerned with application, rather than misinterpretation, of policy.”

The material provisions of the NPPF are set out above.

The Planning Practice Guidance is also relevant. It includes the following:

Given the nature of the arguments, it is convenient at this point to set out some parts of the Decision in full.

At paragraph 20, the Inspector identified the “Main Issues”:

“The main issues are:

•

whether the site is an appropriate location for housing, having regard to the spatial strategy of the development plan;

•

whether the proposal would pass the flood risk sequential test set out in the National Planning Policy Framework (the Framework);

•

whether the proposal would be safe from flood risk for its lifetime, and whether it would increase the risk of flooding elsewhere; and

•

the nature and extent of any economic, social and environmental benefits.”

At paragraph 31, the Inspector said that it was common ground that the site was in Flood Zone 3a and that a Flood Risk Sequential Test was required. He noted that NSCS Policy CS3 stated that development in Flood Zone 3a would only be permitted where it was demonstrated that it complies with the sequential test, except in specific circumstances which were not applicable. He then referred to the decision relating to Lynchmead Farm and the Mead case which had been referred to at the Inquiry. The Inspector had already noted (at paragraph 16) that counsel’s opinion on the effect of this decision had been before the Inquiry and that the Council had not disputed Lord Banner’s opinion. He saw no reason to disagree. He set out the approach of the inspector in the Lynchmead case to Policy CS3 and the identification of “reasonably available” sites which was unsuccessfully challenged in court. He concluded at paragraph 33 that the position was essentially the same in this case. This second particular aspect of the Mead case and the decision is not in issue here.

At paragraph 34, the Inspector said:

“The Framework states that the aim of the sequential test is to steer new development to areas with the lowest risk of flooding from any source, and that development should not be allocated or permitted if there are reasonably available sites appropriate for the proposed development in areas with a lower risk of flooding. PPG includes guidance on what is a “reasonably available” site. The differences between the Council and the appellant related to the application and/or interpretation of that guidance. The four elements underlined below are pertinent:

‘Reasonably available sites’ are those in a suitable location for the type of development with a reasonable prospect that the site is available to be developed at the point in time envisaged for the development.

These could include a series of smaller sites and/or part of a larger site if these would be capable of accommodating the proposed development. Such lower-risk sites do not need to be owned by the applicant to be considered ‘reasonably available .”

The next section of the Decision went on consider the alternative reasonably available sites relied upon and, at paragraph 64, the Inspector concluded that there were 12 sequentially preferable sites and that the sequential test was, therefore, not passed.

The next section of the Decision was headed “Whether the proposal would be safe from flood risk for its lifetime, and whether it would increase the risk of flooding elsewhere.” At paragraph 72, in relation to the safety of the proposed dwellings from tidal flooding, the Inspector said:

“PPG advises that, for tidal flooding, the design flood event should be an event with a 5% annual probability (a 1 in 200 year event). However, the Framework requires that development is safe for its lifetime, which requires consideration of climate change and rising sea levels. In the case of residential development, PPG states that the lifetime of the development can be assumed to be 100 years. It was agreed by the Council and the EA that the existing flood defences at Woodspring Bay would prevent tidal flooding in the design flood event, should that happen now. It was also agreed that, when rising sea levels are factored in, a 1 in 200 year event would overtop the defences, leading to flooding inland as far as the appeal site. This would be the case around 60 years from now. It is important to keep in mind that this is a statistical exercise, used to aid decision making. A 1 in 200 year event could occur at any point, perhaps multiple times, or not at all in the next 200 years.”

The Decision continued:

“73.

The Rappor TN [consultants’ Technical Note] was based on the defended scenario with the Higher Central Climate Change Allowance (CCA). This approach assumes that the existing flood defences would remain as they are. It does not include any allowance for the defences being raised. It does allow for increased sea level due to climate change for a 100 year period. On this basis, the level of the design flood event would be 6.28m AOD. The proposal is for the site level to be raised to 6.43m AOD. Finished floor levels (FFL) would be set at 6.88, providing a freeboard of 600mm above the design flood level. The appellant argued that, with the freeboard, the dwellings themselves would be safe from flooding.

74.

The Council argued that the design event should be the undefended scenario because flood defences may be overtopped in extreme events, may be breached and may not be maintained or upgraded during the lifetime of the development. The Council also contended that the Upper End CCA should have been used. The Hydrock FRA, which modelled the undefended scenario, found that the maximum flood level would be 7.88m AOD, using the Higher Central CCA, and 8.18m AOD using the Upper End CCA.27 These levels are higher than the proposed FFL and would result in the new houses being flooded to a depth of 1.0m (Higher Central CCA) or 1.3m (Upper End CCA).

What is the design event?

75.

The appellant states that the use of the defended scenario (with Higher Central CCA) was agreed with the EA. The Council disputes this, arguing that the EA only sought modelling of the defended scenario as a sensitivity test, in the context of considering impacts on flood risk to adjoining land. To achieve clarity on this matter, I issued a written question to the EA. The response confirms that the EA did agree with the appellant’s approach to the design event.

76.

As noted above, the EA provided a written position statement to the Inquiry and Ms Challans (an officer of the EA) attended to answer questions from me and from the appellant. At the Inquiry, the EA did not dispute the appellant’s use of the defended scenario in the Rappor TN. This is consistent with the EA’s grounds of objection to the scheme, which were confined to off-site impacts and did not suggest that the new houses would themselves be at risk of flooding.

77.

There is no prospect of the existing defences being removed. Consequently, for the purposes of this site-specific FRA, I consider that it is reasonable to take the defended scenario as the design event.

78.

With regard to the CCA, the appellant draws attention to Government guidance in “Flood and Coastal Risk Projects, schemes and Strategies: Climate Change Allowances.” This states that Higher Central should be used as the design CCA, with the Upper End CCA being used to test sensitivity to severe climate change and any required mitigation.

79.

In closing submissions, the Council argued that it is government policy that flood risk management should be “driven by” the undefended scenario, having regard to the Higher Central CCA and the Upper End CCA. The Council sought to rely on an EA guidance document. However, the quoted paragraph suggests that both CCAs should be taken into account. To my mind this falls well short of a policy statement that this appeal decision should be “driven by” the Upper End CCA.

80.

The Rappor TN does not assess the Upper End CCA. Flood risk assessments, of necessity, look forward over many years. There are uncertainties related to climate change, sea level, weather events and the interactions between these factors. At the Inquiry, the respective expert witnesses for the EA, the Council and all agreed that the use of a freeboard is an appropriate way of addressing uncertainty when making planning decisions. Having regard to the information in the Hydrock FRA about Higher Central and Upper End scenarios, I consider that the proposed freeboard of 600mm would be sufficient to address any uncertainty regarding the appropriate CCA.

81.

I conclude that the design event is the 1 in 200 year defended scenario with the Higher Central CCA.”

At paragraphs 82-86, the Inspector addressed managing residual risk including the potentially greater effect of climate change. He noted that the proposals included a Flood Management Plan (“FMP”) which included an evacuation plan and flood resilience measures. He concluded that that was an appropriate means of managing residual risk. He also concluded that the freeboard would be an appropriate means of managing the potentially greater effect of climate change.

Paragraphs 87 to 91 concerned safe means of access and egress. The Inspector found that in the defended scenario, at the peak of the design event, one means of access would be flooded but an alternative route would be available. He noted that the Council’s concern related to the undefended scenario. He repeated that he considered the relevant design event to be the defended scenario and, at paragraph 91, said that: “The undefended scenario is a sensitivity test, which helps to assess residual risk.” He concluded that the FMP was an appropriate way of managing the residual risk.

The Decision next addressed “Prospects for improvement to the coastal defences”. In short, the Inspector’s view was that he could not reach any reliable conclusions as to the prospects of improvements in the future and he, therefore, assumed that none would be made during the lifetime of the proposed development.

The Inspector also considered concerns raised by residents who had made oral and written representations to the Inquiry about types of flooding other than tidal flooding. He concluded that these had been properly assessed and could be managed by a condition in relation to the design of the surface water drainage system.

The Inspector’s “Conclusions on Flood Risk”, at paragraph 104, were as follows:

“104.

I conclude that the proposed houses would be safe from flooding during the lifetime of the development. The proposed means of access from the south, which could be secured by a condition, would provide a safe route to and from the site during a flood event. The proposal would not increase the risk of flooding elsewhere. There would be residual risks from a possible breach of the existing defences or overtopping in an extreme event. These risks could be mitigated by the proposed FMP, which could also be secured by a condition. Climate change above the Higher Central CCA is also form of residual risk. It could be addressed by the provision of freeboard. Nevertheless, residual risk is still a material factor in the overall planning balance, which I return to below.”

The following sections of the Decision were concerned with the nature and extent of economic, social and environmental benefits, including particular environmental assessments, and with conditions to be imposed.

From paragraph 174, the Inspector set out his Conclusions:

“Flood risk

174.

I have concluded that the proposal does not pass the sequential test required by paragraph 173 of the Framework. The Framework states that the exception test may have to be applied where that test is passed. PPG states that the exception test is not a tool to justify development where there are reasonably available lower risk sites. However, it is clear that the matters set out in paragraph 178 of the Framework are important material considerations in the planning balance. Those matters are:

• whether the development would provide wider sustainability benefits to the community that outweigh the flood risk; and

• whether the development would be safe for its lifetime, taking account of the vulnerability of its users, without increasing flood risk elsewhere, and, where possible, would reduce flood risk overall.

175.

Moreover, the judgment in Mead makes clear that a failure to comply with the sequential test is not automatically fatal to a planning application. Other material considerations, including housing need, may outweigh such a failure. It seems to me that, whether or not the exercise is described as an “exceptions test,” the matters set out in paragraph 178 need to be taken into account.”

The Inspector then addressed “The weight to be attached to the failure of the sequential test”. In summary, he said that in assessing how much weight should be attached to the failure to pass the sequential test, relevant factors were (i) the aim of the Framework in steering new development to areas at lowest risk of flooding; (ii) the evidence before the Inquiry that to meet the housing needs of the district it would be necessary to allocate some sites that were at risk of flooding; (iii) his conclusion that the proposed dwellings would not be at risk of flooding in the design flood event and that there would be a safe means of access: (iv) his conclusion that the proposal would not increase the flood risk to adjoining land; (v) the conclusions he had reached on management of residual risk.

His overall assessment was that “significant weight should be attached to the failure of the sequential test, together with the residual risk” (paragraph 184). However, he also concluded (at paragraph 185) that:

“185.

The proposal would bring the following wider sustainability benefits, which have

been described in more detail above:

• delivery of market housing, to which I attach substantial weight;

• delivery of affordable housing, to which I attach substantial weight;

• economic benefits, to which I attach moderate weight;

• biodiversity enhancements, to which I attach moderate weight; and

• open space, to which I attach moderate weight.”

At paragraph 186, he said “Taken together, I consider that the wider sustainability benefits outweigh the flood risk.”

The Inspector further addressed his conclusions relating to flood risk and policy. He said, firstly, that the proposed development did not accord with the Framework because there were reasonably available sites with a lower risk of flooding. He also concluded that the proposed development did not accord with certain policies in the development plan but did accord with others, which were set out in the Decision. It was therefore, he said, necessary to consider whether there were “other considerations which indicated a decision other than in accordance with the development plan” (paragraph 191).

Under the heading “Other considerations”, the Inspector continued:

“192.

The Framework is a material consideration. The approach to decision making set out in paragraph 11(d) is engaged due to the housing land supply position. With regard to footnote 7, that approach is not disengaged by flood risk considerations because flood risk does not provide a strong reason for refusing the development.

193.

The most important policies for determining the application, which are those I have identified above, are therefore deemed to be out-of-date and planning permission should be granted unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole (having particular regard to the matters set out in paragraph 11(d)(ii)).

194.

The adverse effects are:

• failure of the flood risk sequential test, together with the associated residual risks of flooding (after mitigation), to which I attach significant weight;

• conflict with the spatial strategy of the development plan, to which I attach limited weight; and

• landscape impact, to which I attach limited weight.

195.

The benefits are the same as the wider sustainability benefits set out above in my conclusions on flood risk. I attach the same weightings to those benefits. I conclude that the adverse effects do not significantly and demonstrably outweigh the benefits. The Framework therefore indicates that permission should be granted. This is a factor which outweighs the conflict with the development plan that I have identified.

196.

My overall conclusion is that the appeal should be allowed.”

Summarising the NPPF, the sequential test is intended to steer development away from areas at risk of flooding. The policy provides that development should not be permitted if there are reasonably available sites appropriate for the proposed development in areas with a lower risk of flooding. Even if the sequential test is passed, that is that there are no such available sites, the exception test may still have to be applied. Both elements be satisfied for the development to be allocated or permitted.

The claimant’s argument is, in essence, as follows:

The claimant recognises that the Inspector did not in terms state that he was applying the exception test but argues that that is both the form and substance of what he did. It is not in issue that, on the face of the Decision, the Inspector did take into account the two factors identified in the exception test. In the claimant’s skeleton argument, it was contended that the exception test and the matters it encompasses are not material considerations. In oral submissions, however, it was accepted that the matters referred to in the exception test were capable of being material considerations in the planning balance (as were the bullet points in paragraphs 20 and 174 of the Decision). Nonetheless, the claimant argues that, in taking the approach that he did, the Inspector in reality did what both the NPPF and PPG tell him not to do, that is treat the exception test as a material consideration, and thus improperly diminished the weight that he gave to the failure of the sequential test.

On behalf of the first defendant, Dr Bowes response in summary was as follows:

It is clear from the Decision that, as a matter of fact, the Inspector nowhere said that he was applying the exception test and, in my view, what he, in fact, did was take the factors that form the limbs of the exception test into account as material considerations in the planning balance.

The issue for the court, therefore, is whether that fact or how he did that evidence a misunderstanding of the policy, rebutting the presumption that he did understand it. If the court starts with the presumption that the Inspector understood the policy, and takes into account that the Inspector made no express reference to the exception test as a material consideration, the natural interpretation of his Decision, in my view, is that he took account of these matters as material considerations as he was fully entitled to do. It is not necessary to go further in dismissing Ground 1.

There are, however, further matters that support that conclusion. Firstly, the defendants say that that understanding of the Decision accords with and/or is reinforced by the status of the polices which, as the defendants emphasise, do not displace the overall planning judgment that the Inspector should exercise. Secondly, the matters he took into account are material considerations and the fact that they feature in the exception test does not change that or dictate that they are taken into account in some particular manner.

Some reliance was placed by the defendants on the judgment of the Supreme Court in Elsick Development Co Ltd v Aberdeen City and Shire Strategic Development Planning Authority [2071] UKSC 66 at [51]. The context was very different from the present but Lord Hodge made the point that simply including a policy in a development plan did not make it a material consideration, if it was otherwise an irrelevant consideration. It was submitted that the converse must be true and that what is relevant does not became irrelevant because of this inclusion within a policy.

The more compelling and consistent point seems to me to be that the exception test is widely framed so that, if the matters expressly referred to ceased to be material considerations, the remaining material considerations would be severely restricted to the point where it is difficult to see what would be left. The effect would be to render the failure to pass the sequential test a bar to the grant of permission.

Lastly the issue that arises in this case or at least a similar issue has been addressed in two decisions of the High Court. The first is Mead which was relied on in the Inquiry as authority for the proposition that once the sequential test was failed, the decision maker should go on to weigh all material considerations in the planning balance.

Secondly, in Gladman Developments Ltd. v Secretary of State for Housing, Communities and Local Government [2026] EWHC 51 (Admin), the inspector had found that, in light of the lack of a 5 year housing land supply, the “tilted balance” in paragraph 11(d) of the NPPF was engaged. However, as a sequential test was required and none had been submitted, and in line with footnote 7, the inspector found there was a clear reason [reflecting the wording of the NPPF at the time] for refusing permission. At paragraph 99 of the decision letter, she then set out the developers’ submission to the contrary that the requirement for a sequential test and the engagement of footnote 7 was a material consideration and one factor in the planning balance. The inspector concluded:

“The parties could not point me to an appeal decisions where Footnote 7 had been engaged and yet permission had been granted. Such an approach would be unprecedented and would undermine national flood risk policy.”

The focus of Ground 1 on that appeal was on the error of interpretation disclosed by that sentence. For the defendants, it was submitted that the sentence was only dealing with the situation where a “clear reason” had been found when it would be unprecedented to grant permission and undermine flooding policy. Lieven J said this:

“39.

The correct way to analyse the issue is to consider whether, reading the DL as a whole, the Inspector erred in law in her interpretation of the relevant policy, rather than focussing too much on one sentence.

40.

It is correct that in the DL she has referred to the other material considerations which militate in favour of the grant of permission and that she has headed her concluding section “Planning Balance”. However, 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) and the case law.”

The judge found that, on the facts of the case, the decision was a surprising one since the inspector had concluded that there was no unacceptable actual risk of flood on the site and that the proposal would lower the risk of flood elsewhere. The court noted that there were significant benefits which had clear national and Development Plan approval, including the delivery of a significant amount of new and affordable housing. Lieven J continued:

“45.

These factors all go to the planning merits, and the weight to be attached to them is a matter for the Inspector not the Court, see Lord Hoffman in Tesco Stores [2012] P&CR 9. However, by reading the DL as a whole, it becomes apparent quite how lacking the Inspector’s ultimate balancing exercise was.

46.

From DL87-97, the Inspector sets out a number of factors which militate in favour of the development. It is important to note that many of these, such as the provision of housing, would have strong policy support.

47.

At DL 98, the Inspector finds 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. 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, as would be required by s.70(2) TCPA and s.38(6) PCPA. 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. There is no explanation as to why it amounts to a “clear reason” on the facts of the particular case. As I read DL98 the Inspector’s approach is that once she has found something which is 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.

…

50.

There is no explanation in the DL as to what the Inspector thought that the failure to provide a Sequential Test was a “clear reason” for refusal, given all the other factors that she had set out above. It is such a surprising conclusion that, despite what Lord Carnwath said in Hopkins Homes, the Court can only assume that the Inspector misunderstood the policy framework and thought that the words in the NPPF para 168 necessarily amounted to a clear reason for refusal within footnote 7, and therefore inexorably led to the refusal of permission.”

I accept the defendants’ submission that Gladman is thus further authority for the proposition that the Inspector should not stop once the sequential test is not passed but should continue to take into account material considerations. Mr Leader sought to argue that Gladman could be distinguished as it was a case where no sequential test had been carried out at all rather than a sequential test carried out and failed. That does not seem to me to be a relevant point of distinction. The decision in Gladman did notturn on whether or not the sequential test had been carried out but on whether the Inspector had properly addressed the issue of “clear reason” and whether she had weighed in the balance all material considerations, including those that militated in favour of the grant of permission despite the perceived clear reason for refusal.

The court was also referred to the decision of HHJ Jarman KC in Casey v Secretary of State for Housing, Communities and Local Government [2025] EWHC 3138 (Admin). The issue in that case arose very differently and I do not consider the decision to be of particular assistance. The issue argued was as to whether elements of the exception test (in that case safety) should have been considered in the balance, even though the exception test had not been. The judge held that it was irrational not to have considered safety as well as flood risk, although as he put it, perhaps not with the full rigour of the exception test. HHJ Jarman KC’s decision is, at the least, consistent with the view that material considerations are not dictated by the application of the exception test.

At the risk of repetition of my reasons for dismissing Ground 1, all this highlights the inherent difficulty with the claimant’s case. The NPPF and PPG state nowhere in terms that if the exception test is not reached, the matters that form the limbs of the exception test should not be taken into account. If that were the effect of the policies, the position would be curious in that patently material considerations as to sustainability and safety would be excluded with no articulation of what else might be material considerations. Because of that, Mr Leader expressed the argument as being that the exception test involves the balancing of specific matters and that the product of that balance was not a material consideration that the Inspector could properly take into account to justify development.

As I have indicated above, it was submitted that what the Inspector had done, in substance, was weigh the elements of the exception test and then deploy the product in his exercise of planning judgment and to justify the development contrary to policy. Mr Leader argued that that exhibited a misunderstanding of the policy and that the consequence of that flawed approach was that, rather than considering these matters as factors which would go to the weight to be given to the sequential test and/or be taken in account as part of the overall balance, the Inspector denuded the sequential test of effect or overly diminished its significance. Therein lay the error of his ways.

I do not accept that argument which draws an unmerited distinction between the limbs of the exception test which are capable of being material considerations and the outcome of a balancing exercise which is not. It runs contrary to the overall concept of planning balance and the decision making purview of the inspector.

Reading the Inspector’s Decision in a reasonably flexible way it seems to me clear that he, in fact, followed the approach approved in both Mead and Gladman. Having found the sequential test to have been failed, he went on to consider other material considerations and weigh those in the planning balance. As I have said, the argument that the Inspector somehow took account of the product of the exception test (which was not open to him) rather than the material considerations (which were) seeks to draw a distinction without a difference. The fact that they were the same matters as feature in the exception test does not evidence a misunderstanding of the policies on the part of the Inspector or have the consequence that he gave the sequential test no weight rather than the weight he considered appropriate. The fact that his conclusion on the balance was that the development should be permitted similarly does not evidence his application of the exception test to justify development contrary to policy. His decision is the result of his assessment of all material considerations and that is clearly set out in the Decision.

Ground 2(a) is an irrationality challenge. The nature of the claimant’s case was, in summary, that the Decision was irrational because there was no basis on which the Inspector could have come to the decision that the development would be safe for its lifetime and, accordingly, he could not rationally have weighed that factor in the balance. The claimant’s submission linked this argument to Ground 1 in arguing that the Inspector could then only have reached his decision by misunderstanding the NPPF.

This argument turns on the probability of flooding. As Mr Leader submitted, two types of climate change allowance are identified (by the Environment Agency) and were considered by the Inspector. These are the “higher central climate change allowance” and the greater “upper end climate change allowance” (“CCA”).

As set out in the Decision, there were arguments before the Inspector in the Inquiry as to whether the design event should be considered as a 1 in 200 year flood risk in the defended condition (which the Inspector treated as being the present defences) or in the undefended condition. The Inspector decided that it should be the defended condition. That was eminently a matter for his planning judgment and there is no basis on which that decision could be said to be irrational.

As Mr Leader said in his skeleton argument, the Inspector concluded that the development would be safe in the event of a design flood and that finding was uncontroversial. However, the Inspector had then also considered the undefended scenario which he characterised as a sensitivity check. In that scenario (i) in the upper end CCA houses would be inundated to a depth of 1.3m; (ii) in the higher central CCA houses would be inundated to 1m; and (iii) he noted that the Hydrock report presented by the Council described the southern access in the higher central CCA scenario as “danger for most”.

The claimant’s case, therefore, was that there was a material risk of flooding and the development could not be said to be safe for its lifetime and the Inspector’s conclusion that it was was irrational. That ignores the Inspector’s treatment of the undefended scenario as a sensitivity check and his rational conclusion as to the relevant design event. It is right that the PPG advises the use of the equivalent of the undefended condition, but the Inspector gave clear reasons for his decision to engage the defended condition which is not itself challenged. Mr Leader further argued that the Inspector was wrong to “explain away” the “danger to most” of the alternative access in these circumstances on basis of the time that it would take for the site to be flooded because, at some point there would not be safe access and egress. Again that submission ignores the fact that this was not the design event. That would be sufficient to dispose of this ground.

Again, however, the defendants’ arguments offer further reasons to dismiss the appeal on this ground. The defendants emphasise that the policies are, in the first instance, concerned with safety of persons rather than property. The Inspector formed a judgment that in the design event and subject to conditions there would be no risk to the safety of persons. He imposed a Condition (condition 30) in the following terms:

“Prior to the first occupation of the development, a Flood Management Plan shall be submitted to and approved in writing by the Local Planning Authority. This shall include an evacuation plan, flood resilience measures and measures, including signage, to manage any impacts of flooding on the access from Shiners Elms. Thereafter, the development shall be carried out in accordance with the approved Flood Management Plan.”

Although the focus of the condition was on access and safe evacuation, the Inspector had set out in his Decision the aspects of the height of the development AOD and other matters that would provide resilience for property in the case of the design event occurring.

Mr Leader submitted that that approach was wrong in principle because the material consideration (as set out in the Decision and drawn from the exception test) required the Inspector to consider whether the development would be safe for its lifetime and that encompassed not only the safety of residents but the safety or integrity of the houses forming the development. The defendants, he argued, were therefore wrong to attach any relevance to the condition as that had nothing to do with the safety of the buildings and, in any event, was relevant only to the timing of the site being inundated and not whether it would be inundated. The ordinary reader, and more specifically the local authority, he submitted, ought to be capable of understanding from the Decision how the development could be safe for its lifetime and there was no such explanation and no basis for a discernible rational decision.

The defendants further submitted that that case amounted to arguing that any risk of flooding in any circumstances should have led to the conclusion that permission should be refused and that any other decision was irrational. As Lord Banner submitted that would have the effect that the most extreme flood event would be treated as the design event and that could not be right. There is, to my mind, considerable force in that submission.

In response, Mr Leader argued that his case did not amount to submitting that the development had to be guaranteed to be safe for its lifetime in any scenario and focussed on what he submitted was the absence of reasons (overlapping with Ground 2(b)).

The answer to both points, in my judgment, comes from the fact the risk was one that would arise only in extreme circumstances – the “worst worst case” as Lord Banner put it – that was deployed to test the more realistically probable scenario. That is clear from the Inspector’s Decision.

The Inspector did not spell out that he was weighing the risk in this extreme event against other material considerations. It would be perverse if the Inspector had repeatedly to state that that was what he was doing. The reasonable reading of his Decision is that that is what he was doing. That involved putting into the balance that there were other preferable sites, the risk of flooding of this site in the design event, the risk of flooding in extreme circumstances (in the undefended condition), and the benefit in the development of this site. All these matters are addressed in the Decision letter. The obvious reading is that the Inspector weighed them in the balance and reached a decision in favour of permission. There is nothing irrational in that and any alleged absence of reasons does not disclose irrationality.

The claimant’s further contention is that the Inspector has failed to provide adequate reasons for the decision reached. To a large extent that is answered by my decision in relation to Ground 2(a). Reading the Decision as a whole and on any fair reading, the balancing exercise that the Inspector carried out is clear and reasoned. The claimant may wish he had said even more but that is not a basis for challenge.

What remains, however, is a discrete challenge on the basis that the Inspector departed from the decision of another Inspector, Guy Davies, in relation to Lynchmead Farm which was the subject of the Meadcase.

In the present case, the Inspector was plainly aware of the previous decision and made multiple references to it. The claimant’s complaint, therefore, is that in granting permission, when permission had been refused in Lynchmead, the Inspector failed to give adequate reasons for doing so.

It is not in issue that it is preferable for there to be consistency in decisions and that the decision of another Inspector may be a material consideration. However, decisions necessarily turn on the evidence before the inspector and involve elements of individual judgment. Further, although the decision of another Inspector may be a material consideration, the decision is not in the nature of a judgment to be distinguished and the Inspector cannot, and should not, be expected to provide reasons analogous to a distinguishing judgment for each and every decision to which he/she is referred. It is within the remit and proper exercise of the Inspector’s planning judgment to decide that a previous decision is not relevant and does not require further consideration.

The inspector in Lynchmead found that the proposed development failed the sequential test. That was a failure to which the inspector gave very substantial weight. Since the sequential test was failed, he did not apply the exception test. He concluded at paragraph 61 of the decision:

“I conclude that the proposal would conflict with the development plan when taken as a whole, and that it would also conflict with national planning policy on minimising flood risk to new development. Other material considerations do not outweigh the harm so caused. The appeal should therefore be dismissed.”

Apart from the obvious point that the sites are not the same site, there were many issues considered by the Inspector in the present case which do not appear to have played any part on the decision in respect of Lynchmead Farm. These include the assessment of risk of flooding and the balancing of flood risk against wider sustainability benefits that the Inspector undertook in this case.

The thrust of the claimant’s case was that, in the Lynchmead appeal, the inspector had stopped at the failing of the sequential test and not considered the exception test, whereas, on the claimant’s case, in respect of the Yatton site, the Inspector had gone on to consider the exception test. If that is the claimant’s case, it is simply another way of expressing Ground 1 and fails for the same reasons. The claimant submitted that if the Inspector thought that a reason for reaching a different decision was that Mead entitled him to take a different approach, he should have said. That again is a variation on a theme. The Inspector did refer to the Mead judgment, he accepted the legal submission made in that respect by the appellant which was not disputed by the Council, and he did follow that approach. There is both no error of law and no lack of reasoning.

For all these reasons, the appeal on Ground 2 will also be dismissed.

I should add that, following the hearing, a resident who occupies land adjacent to the proposed development wrote directly to the court raising two matters which he asked be taken into account. The two matters related to the sea defences and the flood risk and particularly the raising of the flood plain. It was submitted that, in light of those matters, the exception test had not been properly applied and that the Inspector’s Decision was, therefore, invalid. Since that letter had not, apparently, been copied to counsel, I ensured that it was forwarded to them.

I record this for completeness. It is important that those affected by this judgment understand that it is not the role of the court to re-hear the planning appeal or to re-assess the evidence. The court is only concerned with whether the Decision is flawed by an error of law and/or irrationality and not with whether the balance was, so to speak, right or wrong. For the reasons I have given, in my judgment, the Decision is not flawed in this way.