Appeal 6001345

The appeal is dismissed.

The description of development on the application form is slightly different to that on the decision notice. The revised description has been agreed with the appellant and more clearly describes the proposal. I have therefore adjusted the banner heading above accordingly.

The main issue is the effect of the proposed development on flood related matters.

The appeal site is within flood zone 3a, having a high probability to flooding, largely from the proximity of the [name]. Policy EN21 of the East Devon Local Plan [2016](LP) states that, where possible, development should be sited in flood zone 1 and only if there are no reasonably available sites in this zone, flood zones 2 and 3 should be first considered. The policy requires a [name] be undertaken to consider whether new development should be permitted in areas subject to river and coastal flooding.

Planning Practice Guidance (PPG) explains that the [name] ensures that a sequential, risk-based approach is followed to steer new development to areas with the lowest risk of flooding. It states that where it is not possible to locate development in low-risk areas, the [name] should compare ‘reasonably available’ sites within medium risk areas; and then, only where there are no ‘reasonably available’ sites in low and medium risk areas, within high-risk areas. The planning authority is required to determine an appropriate area of search, based on the development type proposed and relevant spatial policies.

‘[name] sites are described, in the PPG, as sites whose location is shown to be suitable for the type of development proposed, that they are able to meet the same development needs (as the proposal) and have a reasonable prospect of being developed in the same timeframe as the proposal. It also states that such alternative sites do not need to be owned by the applicant to be considered as ‘reasonably available’.

The appellant’s [name] [April 2024] defines the site search parameters for sites that it regards as being ‘reasonable available’. This refers to those that are within an agreed search area, are a suitable size, meet the specific requirements of the proposal, are viable for development, are either under an applicant’s ownership or available on the open market at a reasonable market value, and are not safeguarded/allocated or have planning permission for an alternative use. The appellant’s [name] asserts that as the proposal relates to development within the defined Built-up Area Boundary of the town, and mostly consists of commercial use, the search has been limited to ‘reasonably available’ sites for this specific form of development.

The site search considers the availability of an extensive range of commercial sites within Exmouth, Honiton, [name], Sidmouth, Ottery, Seaton and Axminster. The Test finds that no other reasonably available sites are either sequentially preferable or would accommodate the proposed new development within the search area.

The PPG states that the planning authority will need to determine an appropriate area of search, based on the development type proposed and relevant spatial policies. The Council has stated that the search area should include the entire district and should not only include commercial sites within built up areas.

The PPG recommends that Local Planning Authorities prepare guidance on the appropriate area of search for common development types and maintain an up-to-date register of ‘reasonably available’ sites, clearly ranked in flood risk preference. It seems that the Council has not provided clear guidance on the requirements of a [name] for flood related purposes and does not appear to have a register of suitable sites. Nonetheless, it has clearly explained that the approach taken in the submitted site search is inadequate and its methodology does not garner support from the Local Planning Authority.

It has not been clearly explained why only commercial sites have been considered in the [name]. Such a restriction hampers an open assessment of alternative sites and places an unreasonable limit on the breadth of the search. Where guidance requires alternative sites to be capable of meeting the same development needs, this does not infer that only commercial sites should be considered in this case. It seems highly likely that a wider site search, without this restriction, would discover more sites that could accommodate two one-bedroom apartments in areas of lesser flood risk. As such, the [name] applies search parameters that are restrictive and go beyond the advice of the PPG by setting narrow search criteria. Consequently, the Test fails to adequately eliminate alternative sites, within the area, that have a lower risk of flooding.

The PPG identifies that a pragmatic approach should be taken when proposing extensions to business premises, when considering the suitability of alternative sites. However, the proposal, whilst connected to an existing public house, appears to be a severable component that could operate independently. Therefore the proposed scheme does not fall within this requirement for such a pragmatic approach.

Under ‘Annex 3: [name] of the National Planning Policy Framework (the Framework), dwellings fall within the ‘[name] classification. Table 2, within the PPG shows that in addition to passing the [name], the ‘incompatibility’ test requires [name] development to pass an [name] if within in zone 3a and not supported at all if within zone 3b. The Framework states that an exception test should be applied once it has been demonstrated that it is not possible for development to be located in areas with a lower risk of flooding. As the [name] has been found to be insufficient, the exception test need not be applied.

Accordingly, the appeal site and proposal would be at risk of flooding and would conflict with LP policy EN21 and the Framework. This requires, among other matters, for development in flood zones 2 and 3 to undertake a sequential test and for this to adequately demonstrate that acceptable sites cannot be found in areas at lower risk of flooding.

Correspondence from the landlord suggests that the public house experiences limited income during the winter months and relies on rental income during these periods. It is suggested that additional income, provided through the proposed dwellings, would provide increased support to the business at such times. However, a clear financial connection has not been established between the viability of the existing business and a need to develop the appeal site. As such, the financial benefits of the scheme weigh only modestly in favour of the proposal.

There would be some, albeit limited, social and economic benefits associated with the proposal with new residential occupiers spending in the area.

The proposed development would meet an identified need for smaller residential units in Exmouth by policy H2 in the Exmouth Neighbourhood Plan [2019](NP). However, it has not been demonstrated that such a need could not be provided within parts of the town within flood zone 1 and therefore this is of limited weight in favour of the scheme

The Environment Agency initially objected to the proposal but withdrew this objection once the FRA was submitted. However, the absence of an objection does not convey its support. Its position was recently crystalised where it demonstrated support for the Council’s decision in finding that the [name] provides insufficient satisfaction that flood matters have been addressed.

Reference has been made, by the appellant, to several planning applications and quotes from selected parts of the respective officer reports. These demonstrate that for other schemes, mitigation for tidal flooding has been discussed on the basis that such events are temporary and infrequent. Nonetheless, the context and nature of those proposals are not before me and, in any event, I am required to consider each case on its own merits.

The council cannot demonstrate a five-year housing land supply against their housing requirement, with a substantial shortfall, being less than three years. Two additional dwellings would make a valuable contribution to the Council’s housing land supply and thus would contribute to the Government’s objective to significantly boost the supply of homes. The economic and social benefits of the scheme and the financial benefits to the public house are noted. Furthermore, the proposal would deliver small homes, meeting a local need required by the NP. Overall, I attach moderate weight to the combined benefits of the proposal.

On consideration of the Council’s housing land supply position, paragraph 11(d) i) of the Framework indicates that the presumption in favour of sustainable development should be engaged unless the application of policies in the Framework that protect areas or assets of particular importance provide a strong reason for refusing the development proposed. Footnote 7 of paragraph 11(d) of the Framework lists areas at risk of flooding as areas of particular importance.

[name] have found that the proposed development would not support the location of new residential development in areas at the lowest risk of flooding, which provides a strong reason for refusing planning permission, the presumption in favour of sustainable development is not engaged. Consequently, because of the harm I have found, there is conflict with LP Policy EN21.

Areas that flood are not precluded from development but there is a need to first adequately explore locating new development in areas of low flood risk. To do this the Framework requires a sequential approach to be undertaken, requiring an applicant to demonstrate that sites in areas at a lower risk of flooding should be prioritised over those subject to greater flood risk. Therefore, the conflict between the proposal and LP Policy EN21 should be given significant weight in this appeal. Although a failure of the [name] may not be determinative for a proposal, the benefits associated with the proposed development are of modest weight only that would not outweigh the harm found and the conflict with the development plan in this case.

Accordingly, the proposal conflicts with the development plan when read as a whole and the material considerations I have identified, even though attracting moderate positive weight in the context of a substantial housing land supply shortfall, do not outweigh that conflict.

Therefore, for the reasons given, the appeal is dismissed.