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Section 10 – Meeting the challenge of climate change, flooding and coastal change

NPPF 93-108

 

NPPF 97

Bayliss [2013] EWHC 1612 (Admin), Hickinbottom J

Lisa Busch appeared for the Secretary of State

John Litton QC appeared for the Third Respondent

“The NPPF, looked at as a whole, generally favours renewable energy developments, whilst of course requiring the benefits of such developments to be balanced against possible harm to the environment that they might cause.” [10]


NPPF 98

 

Bayliss [2013] EWHC 1612 (Admin), Hickinbottom J

Lisa Busch appeared for the Secretary of State

John Litton QC appeared for the Third Respondent

There is no requirement for applicants for renewable energy development to demonstrate an overall need for low-carbon or renewable energy. [30]

Howell [2015] EWCA Civ 1189, Richards and Briggs LJJ, Sir David Keene

“there is no doubt, as the inspector noted, that the NPPF is generally supportive of renewable energy proposals and states that even small scale projects can make a valuable contribution to cutting greenhouse gas emissions.” [39]

 

NPPF 99-104

 

Menston Action Group (Acting by Professor John David Rhodes) v City of Bradford MDC [2016] EWHC 127 (QB), Dove J

David Forsdick QC appeared for the Interested Party

“38 The real question in this case is whether or not the Framework and the PPG require, in the development control context, a proposal to seek out and provide opportunities to reduce flood risk.

39 In my view it is clear when reading paragraphs 100, 101 and 103 together that they provide different tests and objectives when considering the determination of planning applications (or decision-making) from occasions when the preparation of local plans is being undertaken (or plan-making). It is clear from the third sentence of paragraph 100 that when plan-making, one of the objectives in determining where development should be located is “using opportunities offered by new development to reduce the causes and impact of flooding”. This is identified by the policy as one of the factors which must be borne in mind when meeting development needs. Thus when considering and preparing local plans the seeking out of opportunities to reduce the causes and impact of flooding is clearly an objective that the policy requires to be examined, and the failure to take such opportunities when they are available would be a breach of the policy.

40 By contrast it is equally clear in my view from the three paragraphs in point, and in particular from the specific policy in paragraph 103, that in relation to the task of determining planning applications an approach is adopted which does not set as a policy test the requirement to seek out opportunities to reduce the causes and impacts of flooding. The opening clauses of paragraph 103 make clear that for the purposes of planning applications the test is to ensure “flood risk is not increased elsewhere”, and where development is contemplated in areas which are at risk of flooding the policy requires the application of the sequential test and, if necessary, the exception test.

41 The paragraph of the PPG to which the claimant makes reference is, firstly, obviously subservient to the policy for which it provides practice guidance. Thus if, as I am satisfied, the Framework does not include a test when decision-making which requires the seeking out of opportunities to reduce the causes and impacts of flooding, the text within the PPG could not override that reading of the primary document. In any event, and secondly, the text from the PPG upon which the claimant relies is of generic or overarching application and does not provide an additional gloss on the Framework's separation of policy requirements for plan-making and decision-taking. The text does not undermine the proper interpretation of paragraphs 100, 101 and 103 of the Framework to provide for separate tests for plan making and decision taking. That is not to say that the observation in the PPG could not be pertinent in the decision-making context. No doubt if in the decision-making context a proposal were to offer as a benefit the reduction of flood risk in the area that would be a positive material consideration which would need to be borne in mind in the support of the grant of planning permission. There is a difference between that approach and the suggestion that, notwithstanding the clear terms of paragraph 103 of the Framework, there is nonetheless a policy requirement that development proposals seek out and provide benefits in terms of flood risks in the area and beyond. In short, whilst it is not a breach of paragraphs 100, 101 and in particular 103 of the Framework for a proposal not to seek out or secure opportunities to reduce flood risk, if a development proposal offers such a benefit then plainly that would be a positive factor in the planning balance weighing in favour of the grant of planning permission.” [38]-[41]

 

Watermead Parish Council v Aylesbury Vale District Council [2017] EWCA Civ 152, Patten and Lindblom LJJ

David Elvin QC and Alex Goodman appeared for the Interested Party

The Council had erred in viewing the sequential test as not applying to previously developed land; this was a misinterpretation of the NPPF. [28]


NPPF 104

R (on the application of Kenneth Kolb) v Buckinghamshire County Council [2013] EWHC 1055 (Admin), Lindblom J

David Elvin QC and Richard Turney appeared for the Council

James Maurici QC appeared for the Interested Party

“… given that in this case an up-to-date sequential analysis had been undertaken at the strategic level, it was in my view reasonable for the County Council to conclude that a site-specific sequential test was not required for development consistent with the allocation supported by the strategic exercise.” [38]