Factual and Procedural Background
The appeal concerns a challenge by the Appellant, Watermead Parish Council, against the decision of the Defendant, Aylesbury Vale District Council, which granted planning permission on 18 June 2015 for the construction of a crematorium and car park at a site on the northern outskirts of Aylesbury. The application was made by Crematoria Management Ltd., a company operating within the crematoria and cemeteries sector. The Appellant contended that the local planning authority unlawfully applied two policies in the National Planning Policy Framework (NPPF): the policy for development in "areas at risk of flooding" and the policy for the "presumption in favour of sustainable development". The High Court dismissed the claim for judicial review, and permission to appeal was granted on 16 August 2016.
Legal Issues Presented
- Whether the district council misunderstood and failed to lawfully apply the NPPF policy for development in "areas at risk of flooding", particularly the sequential test set out in paragraphs 100 to 104 of the NPPF.
- Whether the district council correctly understood and lawfully applied the NPPF policy for the "presumption in favour of sustainable development" in paragraph 14 of the NPPF.
- Whether evidence in a witness statement of the district council's planning officer, who authored the committee report, should be taken into account in resolving the first issue.
- Whether, if any error of law is found, the court should exercise its discretion to decline to quash the planning permission.
Arguments of the Parties
Appellant's Arguments
- The district council misunderstood and failed to apply the sequential test as required by the NPPF for development in areas at risk of flooding.
- The sequential test requires a sequential assessment of alternative sites with lower flood risk, which was not performed in this case.
- The flood compensation measures do not discharge the requirement to apply the sequential test; these are separate exercises.
- The policy for the presumption in favour of sustainable development was misapplied because the site is subject to a restrictive policy for flood risk, which should exclude the presumption.
- The officer's advice in the committee report was legally flawed and misdirected the decision-makers on the sequential test and the presumption.
Defendant's and Interested Party's Arguments
- The district council was entitled to treat the site as already developed and to conclude that the sequential test was unnecessary or inapplicable in this case.
- The officer’s report correctly understood the sequential test as a locational policy, and the development complied with its objectives by concentrating built development in the lowest flood risk area and achieving "betterment" by reducing flood risk.
- The presumption in favour of sustainable development was properly applied, as the restrictive flood risk policy does not automatically exclude the presumption.
- The planning officer’s witness statement elucidated but did not contradict the committee report and was rightly admitted by the judge.
- If an error of law is found, the court should exercise discretion not to quash the permission because the outcome would likely be the same, there is no suitable alternative site, and the Environment Agency was satisfied with the flood risk mitigation.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R. (on the application of the Environment Agency) v Tonbridge and Malling Borough Council [2006] 2 P. & C.R. 29 |
Clarification that the sequential test applies to redevelopment of existing sites and not only greenfield sites; error in treating sequential test as inapplicable to previously developed land. |
The court distinguished the present case from Tonbridge on the basis that the local authority here did not contend the sequential test never applied to previously developed sites but argued it was unnecessary in the particular circumstances. |
| R. (on the application of Morge) v Hampshire County Council [2011] UKSC 2 |
Planning officers' reports should be read with reasonable benevolence and not excessive rigor. |
The court applied this principle in assessing whether the planning officer's report misled committee members on material considerations. |
| R. v Mendip District Council, ex parte Fabre (2000) 80 P. & C.R. 500 |
Similar principle on the interpretation of planning officers' reports. |
Reinforced the approach to reading officer reports in this case. |
| R. (on the application of Siraj) v Kirklees Metropolitan District Council [2010] EWCA Civ 1286 |
Advice to committee must not misdirect members on material planning considerations. |
The court used this to assess whether the officer’s advice was lawful and sufficient. |
| Palmer v Herefordshire Council [2016] EWCA Civ 1061 |
It is assumed that committee members act on the advice given by planning officers unless there is evidence to the contrary. |
Applied to presume committee members followed the officer’s advice in this case. |
| R. v Westminster City Council ex parte Ermakov [1996] 2 All ER 302 |
On admissibility of evidence to supplement or explain planning officer reports. |
Considered in relation to the admissibility of the planning officer’s witness statement. |
| R. (on the application of Lanner Parish Council) v Cornwall Council and Coastline Housing Ltd. [2013] EWCA Civ 1290 |
Limits on admitting evidence that contradicts official decision records. |
Used to argue against admission of the planning officer’s witness statement, though the court admitted it. |
| R. (on the application of Nash) v Chelsea College of Art and Design [2001] EWHC 538 (Admin) |
Evidence can elucidate but not correct errors in planning officer reports. |
Supported the court’s approach to the witness statement evidence. |
| R. (on the application of Champion) v North Norfolk District Council [2015] 1 WLR 3710 |
Requirement for timely challenge to planning decisions. |
Referenced in relation to the Appellant’s delay in raising objections. |
| R. (on the application of Corrie) v Suffolk County Council [2015] Env. L.R. 5 |
Similar principle on timely challenges to planning decisions. |
Referenced similarly to Champion case. |
| R. (on the application of Holder) v Gedling Borough Council [2014] EWCA 599 |
Balancing prejudice in exercising discretion to grant relief. |
Applied in rejecting the argument that commercial prejudice should preclude quashing the permission. |
| Forest of Dean District Council v Secretary of State for Communities and Local Government and Gladman Developments [2016] EWHC 421 (Admin) |
Interpretation of the presumption in favour of sustainable development and when it is displaced by restrictive policies. |
Discussed in argument over interpretation of paragraph 14 of the NPPF. |
| Tesco Stores Ltd. v Dundee City Council [2012] PTSR 983 |
On policy interpretation as a matter for the court. |
Noted as authority on the court’s role in interpreting planning policy. |
| Cheshire East Borough Council v Secretary of State for Communities and Local Government [2016] EWHC 571 (Admin) |
Case involving interpretation of the presumption in favour of sustainable development. |
Referenced as part of ongoing judicial consideration of paragraph 14’s meaning. |
| Wychavon District Council v Secretary of State for Communities and Local Government [2016] EWHC 592 (Admin) |
Similar to Cheshire East on presumption interpretation. |
Referenced similarly. |
| East Staffordshire Borough Council v Secretary of State for Communities and Local Government [2016] EWHC 2973 (Admin) |
Similar context on presumption in favour of sustainable development. |
Referenced similarly. |
| Trustees of the Barker Mill Estate v Test Valley Borough Council [2016] EWHC 3028 (Admin) |
Similar context on presumption in favour of sustainable development. |
Referenced similarly. |
| Thorpe-Smith v Secretary of State for Communities and Local Government [2017] EWHC 356 (Admin) |
Similar context on presumption in favour of sustainable development. |
Referenced similarly. |
Court's Reasoning and Analysis
The court identified two principal issues: the correct application of the NPPF policy on development in areas at risk of flooding, particularly the sequential test, and the application of the presumption in favour of sustainable development under paragraph 14 of the NPPF.
Regarding the sequential test, the court analysed the planning officer's report and found that the officer advised the committee that a sequential assessment was unnecessary because the site was already developed. The court held that this advice was a misinterpretation of the NPPF policy. The sequential test applies to new development on previously developed land as well as greenfield sites, and there is no general exemption for previously developed sites unless they are allocated in development plans or fall within the specific exemptions for minor development or change of use, neither of which applied here. The officer’s advice, therefore, was legally flawed and misdirected the members of the committee.
The court considered the planning officer’s witness statement admitted at first instance, which elaborated on the reasoning that the development would reduce flood risk ("betterment") and was analogous to minor development. While the statement did not contradict the report, it introduced considerations not in the report but did not justify departing from the sequential test policy. The court concluded that this evidence did not negate the conclusion that the officer’s advice was flawed.
On the presumption in favour of sustainable development, the court noted competing interpretations of paragraph 14 of the NPPF. The court preferred the interpretation that where a restrictive policy applies (such as flood risk), the presumption does not initially apply, but once that policy is applied or deemed unnecessary, the presumption can resurface. However, the court found it unnecessary to resolve this interpretative dispute fully, as the lawfulness of the decision turned on the correct understanding of the sequential test policy. The officer’s misinterpretation of the sequential test policy also meant that the presumption in favour of sustainable development was not lawfully applied.
The court rejected the argument that the planning permission should not be quashed in the exercise of discretion. It emphasised the importance of correct application of national planning policy, the significance of the errors of law, and that the local planning authority is responsible for applying the sequential test. The court found there was a realistic prospect that a lawful re-determination could lead to a different outcome. It also rejected arguments based on commercial prejudice and delay, holding that the imperative of lawful decision-making outweighed those considerations.
Holding and Implications
The court ALLOWED THE APPEAL.
The planning permission granted by the district council was quashed due to errors of law in the application of the NPPF policy for development in areas at risk of flooding, specifically the sequential test, and the consequent misapplication of the presumption in favour of sustainable development. The case is remitted to the district council for reconsideration in accordance with the correct interpretation and application of the relevant policies. No new precedent was established beyond the application of existing principles to the facts of this case. The decision underscores the necessity for local planning authorities to correctly interpret and apply national planning policies, particularly in relation to flood risk and sustainable development.