Sarah Reid KC and Piers Riley-Smith have successfully represented Aldi Stores Ltd in a called – in application for planning permission for the erection of a foodstore in the functional floodplain (FZ3b) in Winnersh, Wokingham.
The application was called in by the Secretary of State following an objection from the Environment Agency. The EA withdrew its objection during the inquiry following cross – examination on behalf of the Applicant.
The decision has wider relevance given the clarification by the Inspector and Secretary of State as to the correct approach to flood risk policy in the NPPF and PPG.
The EA had originally objected on the basis that the development was incompatible in FZ3b in principle, applying Table 2 Paragraph 079 PPG. This sets out that less vulnerable development “should not be permitted” in the functional floodplain (FZ3b).
The Inspector rejected this point, agreeing with the Applicant that “should not be permitted” does not mean “must not be permitted” and was not a mandatory bar to the grant of permission. Instead, whilst the proposed development’s incompatibility was a negative factor counting against the proposal in the balance, it was not necessarily determinative (see IR 193/194). These conclusions were endorsed by the Secretary of State at DL/12.
The Inspector also considered the overarching policy requirement in NPPF170, which requires development proposals to have regard to all sources of flood risk and avoid “inappropriate development” in areas at risk of flooding. The Inspector agreed that this question should be approached holistically, that is, having regard to the totality of the policy relating to flood risk contained in the PPG and NPPF. Whilst noting the implications of Table 2 PPG (above) as a negative factor, he concluded that the proposed development accorded with the requirements of national policy (and the Development Plan) on flood risk as a whole, having regard to the specific facts of the case. The proposal could not therefore be considered “inappropriate” in flood risk terms, applying NPPF170(IR/190 and 212). The Secretary of State agreed (DL/14).
It follows that the question of whether development is “inappropriate” in flood risk terms is a matter of judgment for the decision maker on the specific facts, applying the policy relating to flood risk in the NPPF and PPG as a whole. It is not necessarily the case that a technical non-compliance of one element of policy on flood risk will render an entire development “inappropriate” in flood risk terms, or ultimately lead to the refusal of permission.
Whilst there were some very specific facts that justified the grant of permission in this case, these wider points are likely to be of assistance to developers and Local Planning Authorities as they continue to grapple with national flood risk policy.
A copy of the Decision may be found here.
Sarah Reid KC and Piers Riley-Smith was instructed by Dan Templeton at Planning Potential Limited.
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