Appeal 6002402

The appeal is dismissed.

It is evident from the appeal drawings that the development includes the provision of a twin unit mobile home, a touring caravan and a day room on each of the 2 pitches. Also, the plans show a small sewage treatment plant to replace a septic tank. I have assessed the appeal on this basis.

On my site visit I saw a mobile home and a dayroom on the pitch nearest to the site entrance, although no caravans or day room on the second pitch. Therefore, the appeal development has commenced, although it has not been completed.

The Council has started to prepare a new local plan. However, it would appear that this is at an early stage in its production and no draft policies have been provided. As such, I attach very limited weight to the emerging local plan.

The main issue is flood risk. [name] find the development is unacceptable in these regards there is an additional issue as to whether any factors in support of the development justify allowing the appeal.

The appeal site lies in a wider area identified as flood zone 3a on the Environment Agency (the EA) [name] for Planning. Accordingly, it is appropriate to treat the site as being subject to a high risk of flooding. From the information provided, it appears that this classification relates to the site’s proximity to the coast at [name] and possible tidal flooding and to fluvial flooding associated with the [name]. There is also a rhyne or large drainage ditch just outside the northern boundary of the site and that goes underneath the access drive. On my visit I saw a significant level of water within this rhyne.

Policy D1 of the Sedgemoor Local Plan 2019 (the LP) refers to the sequential test (the ST) in respect of flood risk. The preamble to the policy highlights advice within the National Planning Policy Framework (the Framework) and the Planning Practice Guidance (PPG) on how the ST should be applied. The aim of the ST is to steer new development to areas with the lowest risk of flooding. The PPG1 states that as far as possible development in high flood risk areas should be avoided. In line with the Framework and the PPG, LP policy D1 explains the need under the ST to show there are no reasonably available alternative sites at lower flood risk within a defined search area where the development could be located.

The ST is applicable as the site is identified as being at a high risk of flooding. Also, the development is not exempt from the ST under the terms of footnote 62 of the Framework as it includes the change of use of the land to a caravan site.

LP policy D1 states that the ST is deemed to be passed if development is located within identified settlement boundaries. However, the appeal site lies outside any defined settlement. In such circumstances, LP policy D1 states the ST area of search should be Sedgemoor District unless a development has a specific locational requirement. However, this is inconsistent with the PPG that states for a non-major housing development it is generally inappropriate for the ST area of search to extend beyond an individual village and its immediate neighbouring settlements2. Whilst not for housing, the appeal development involves the residential use of the site and so I tend to favour the more recent PPG provisions in respect of the area of search over the approach set out in LP policy D1.

In any event, the appellant’s Sequential and [name] explains how a review of land within the whole of the Sedgemoor District has been undertaken. This identified 49 sites that were being marketed with 6 that fell under the set maximum site size of 0.5 hectares. These 6 sites were discounted as reasonable alternatives for the development as they were either subject to planning permission for the erection of houses, were also at high flood risk, or as physical constraints meant the developable area would be too small.

It is suggested by the Council that the development could be accommodated on rural land at a lower flood risk, provided it has access to the existing highway network. However, the Council does not claim the appellant has wrongly discounted sites identified through their search for available alternatives.

Moreover, the PPG3 states that for the purpose of the ST, sites should only be considered as reasonably available if they are able to meet the same development needs and have a reasonable prospect of being developed at the same time of the proposal. In this case, part of the appeal development has already been carried out. As such, it is fair when applying the ST to consider only alternative sites that already benefit from planning permission for Gypsy and Traveller accommodation use and that could be occupied within a short time period. The Council recognises 1 Planning Practice Guidance, [name] and [name], Paragraph: 023 [name]: 7-[phone] Revision date: 17 09 2025. 2 Planning Practice Guidance, [name] and [name], Paragraph: 027a [name]: 7-027a-20220825 Revision date: 17 09 2025. 3 Planning Practice Guidance, [name] and [name], Paragraph: 028 [name]: 7-[phone] Revision date: 17 09 2025 a shortfall in the supply of Gypsy and Travellers sites and there is little evidence to indicate any suitable, authorised and available plots exist within the Sedgemoor District area or at Stretcholt, Pawlett or any other nearby village. Therefore, on the evidence before me, I find the ST has been met. Flood risk – the exception test.

LP policy D1 states that where the ST is passed, the vulnerability of the development must still be compatible with the flood zone, including the application of the exception test (ET) as required. This is generally consistent with paragraph 177 of the Framework that states the need for the ET will depend upon the potential vulnerability of the site and of the proposal. The PPG4 refers to a table (Table 2) that sets out the circumstances when the ET will be required.

The appeal development includes caravans and mobile homes intended for permanent residential use and so it is classed as being highly vulnerable to flood risk under Annex 3 of the Framework. Table 2 states that highly vulnerable development within flood zone 3a should not be permitted. Therefore, it indicates the ET should not be applied but that instead the appeal development should be refused. Other factors in the assessment of flood risk.

LP policy D1 requires a flood risk assessment (FRA) that shows the development will be safe over its lifetime and will not increase flood risk elsewhere, as well as addressing any residual flood risk and access or egress issues. Paragraph 181 of the Framework is only permissive of development in areas of flood risk where a FRA shows it is appropriately flood resistant and resilient, any residual risk can be safely managed and where safe access and escape routes are included.

Whilst the site is identified as being at high flood risk, the appellant’s FRA suggests that tidal and pluvial flooding risks in the area are well-managed by existing flood defences. Indeed, the FRA includes information from the EA that confirms the site is unlikely to be affected by coastal or tidal flooding in a defended scenario. However, there is a dispute between the main parties as to whether it is appropriate to base the FRA on a scenario where flood defences are considered.

Appeal decision reference APP/D0121/W/24/3343144 grants planning permission for a large housing development at Yatton in [name]. The Inspector in that case decided to take the defended scenario as the design flood event, primarily as there was no prospect of existing flood defences being removed. In that case, the EA agreed with the Inspector’s approach whereas in this current case the EA object to the development. Moreover, the Yatton appeal scheme relates to a housing proposal rather than a caravan site and it would be on land that is a greater distance from the coast. The Yatton site is also well away from Stretcholt and it is protected by different flood defences. There is little information before me on the extent, nature or longevity of the flood defences that protect the appeal site. As such, I am not bound to take the same approach as the Yatton appeal Inspector in my assessment of flood risk.

The appellant’s FRA considers the effect of tidal flooding on the appeal site in the event of the area being unprotected by flood defences. Drawing on information 4 Planning Practice Guidance, [name] and [name], Paragraph: 031 [name]: 7-[phone] Revision date: 25 08 2022. from the EA, the FRA gives an undefended, 1 in 200 year tidal flood level of 8.57m AOD (the tidal flood event level). This includes an allowance for climate change. Existing ground levels on the site are stated as being 5.3m AOD and so significantly below the tidal flood event level. The FRA advises that the crest of the flood defences are above the 1 in 200 year flood level and that a tidal flood event would require a breach of the defences. However, there is limited information before me on the flood defences and so I cannot be certain that such a breach would not occur during the lifetime of the development.

It is suggested that in a tidal flood event, there would be ample time for residents to evacuate before floodwaters reached the site due to the separation distance to the coast. The site is away from the sea but there is little evidence to demonstrate how quickly or severely a tidal flood event would affect the local area. Even if residents receive flood warnings, I cannot be sure that these would be received in time for safe evacuation of the site and the parts of the local area that also lie within [name] 3a.

The FRA sets out an evacuation plan for occupants. It indicates the safest option would be for residents to take refuge in a raised area within the large equestrian building on the site. However, it is accepted that even this would be below the tidal flood event level. Moreover, the refuge would not facilitate movement to and from the site. Even if the refuge would meet the needs of residents in an emergency, there is no substantive evidence on how long flood waters would take to recede and so as to allow safe escape from, or access to, the site.

Furthermore, the evacuation plan would not protect the caravans and other property belonging to the occupants in a flood event. The FRA refers to the caravans being tethered to the ground so they would not be taken away by flood waters. However, other vehicles associated with the proposed use could not be secured in a similar manner. The mobile homes would be set 600mm above ground level but even so they would still be swamped by water at the tidal flood event level. Should such an event occur during the lifetime of the development, it is likely the residents’ homes and belongings would be severely affected.

The FRA states that the greatest risk of flooding to the appeal site would be from coastal inundation following a storm surge and the breach of flood defences. However, there is little explanation as to why river flooding or flooding associated with the adjacent rhyne is considered to be less likely to affect the development. The failure of the FRA to assess the specific effects of potential flooding from these sources raises significant uncertainty over whether any residual flood risk to the appeal development could be safely managed. Flood risk – conclusion.

To summarise, the site lies within an area identified as being at high flood risk. I am satisfied the ST is met but Table 2 indicates planning permission should be refused having regard to the potential vulnerability of the site and appeal development to flooding. Whilst noting the FRA, insufficient justification has been provided to entirely disregard the 1 in 200 year tidal flood event. Also, the FRA fails to consider the specific effects of potential flooding from rivers and the nearby rhyne. The tidal flood event level would be significantly above existing ground levels and so the proposed refuge would not be safe and movement to and from the site could be greatly hindered. Moreover, the evidence indicates the residents’ homes and belongings would be adversely affected in a tidal flood event, even when considering proposed mitigation measures.

Therefore, the development is unacceptable in terms of the issue of flood risk. It would not accord with LP policies D1 and D8 as it would introduce a Gypsy and Traveller site and a highly vulnerable development in an area at high flood risk. In these regards, the development would also be contrary to paragraph 13(g) of the government’s Planning Policy For Traveller Sites (PPTS) that states planning policies should not locate Gypsy and Travellers’ sites in areas of high risk of flooding. Also, it has not been demonstrated the development would be safe over its life time and the residual flood risk would be managed safely, including access and egress. As such, the site is unsuitable for the development in flood risk terms. Other considerations in support of the proposal.

The PPTS requires local planning authorities to set pitch targets for Gypsies and Travellers. Also, they should identify and update annually a supply of specific deliverable sites sufficient to show 5 years’ worth of pitches when considered against these targets.

Policy D8 of the LP refers to a Gypsy and Travellers Accommodation Assessment dated 2013 (GTAA 2013) and an identified need for 45 pitches. I am advised that since April 2016, 39 pitches have been permitted, leaving a requirement of 6 further pitches as of 2025 when assessed against the figure referred to in LP policy D8. However, the Council’s appeal submissions refer to an update to the GTAA 2013 that advises 69 pitches are required up to 2032. The Council accepts there is a likely additional need for pitches over and above the figure set out in LP policy D8. This is highly probable given the age of the GTAA 2013.

In any event, the Council accepts that it is unable to demonstrate a 5 years’ worth supply of deliverable Gypsy and Traveller pitches. Indeed, there is no evidence before me of any sites being currently available. The appeal development would help address a general need for pitches at a time when there is an acknowledged shortfall in the supply of sites.

One of the pitches is already occupied by the appellant and their family, which includes children. The development is a settled base that provides a suitable living environment and from which the residents are able to access education facilities within Pawlett. Also, it allows the occupants reasonable access to other facilities within the nearest settlements. The site includes equestrian facilities and so it is convenient for the occupants to care for horses. The appellant claims they have no alternative permanent accommodation and so it would seem that dismissing the appeal would lead to the family adopting a more transient and uncertain lifestyle.

The second pitch would be occupied by relatives of the appellant, including children. Limited information has been provided on these intended occupants, although I am advised they live on an overcrowded site elsewhere in the country. Even so, the appeal development is, and would be, clearly beneficial to the appellant and their relatives. It would be in the best interests of the occupants to have an authorised settled base from where they can gain regular access to services.

I am referred by the appellant to planning permission granted by the Council for Gypsy and Traveller caravan pitches at a site on [address] at Mark. This development lies within flood zone 3a but it has been allowed on the basis that the advantages of the scheme outweigh any concerns in respect of flood risk. However, the [address] development is further away from sources of flooding compared to this appeal site. Also, it is evident that the extent of flooding identified for Halcyon is significantly greater than that identified for the [address] site. Given these differences, the [address] decision attracts little weight in my overall assessment of the appeal. Planning Balance, Human Rights and Public Sector Equality Duty.

For the reasons as set out under the main issue, I have found the development does not accord with the policies of the LP when read as a whole. It follows to consider whether the factors in support of the appeal scheme justify granting planning permission despite the conflict with the development plan.

I give significant weight to the contribution the site would make towards addressing a shortfall in the supply of deliverable Gypsy and Traveller pitches. The benefits of providing an authorised settled base for the occupants also attracts significant weight. However, I am concerned the accommodation and the residents’ possessions could be adversely affected in a flood event. The FRA and related information fails to convincingly demonstrate the development would not be subject to flooding during its lifetime or that the residual flood risk would be safely managed. The adverse effects of allowing the development would substantially and demonstrably outweigh the benefits of the development. In arriving at this view, I attach substantial weight to the acknowledged vulnerability of the appeal development to flooding and the fact the site lies in an area identified as being at high flood risk.

I have considered whether granting planning permission for a temporary period would be appropriate. However, there is no certainty over when a flood event may occur. As such, a planning condition that requires the cessation of the development after a set time period would not address my concerns.

Therefore, the Framework’s policies on areas at flood risk provide a strong reason to refuse permission. The failure of the Council to identify a 5 years’ supply of deliverable pitches means that paragraph 11(d) of the Framework is engaged. However, in light of my findings, the circumstances at sub-paragraphs 11(d)(i) and 11(d)(ii) of the Framework exist. Accordingly, the presumption in favour of granting planning permission does not apply.

Dismissing this appeal could lead to the current occupants having to leave the site. This would represent an interference with their rights to peaceful enjoyment of their possessions and to respect for a private family life and a home under Article 1 of the [name] and Article 8 of the Human Rights Act 1998. The best interests of the children that live on the site are also a primary consideration. However, the residents’ rights are qualified and the best interests of the children are not bound to be determinative of the planning issue. In this case, those most affected by the potential flood risk of the development would be the appellant and their relatives. This risk is the overriding factor. An interference to the occupants’ human rights would accord with the law as it would be pursuant to the well-established and legitimate aim to reduce the risk of development being flooded.

Furthermore, I have had due regard to the Public Sector Equality Duty (PSED) contained in section 149 of the Equality Act 2010. This sets out the need to advance equality of opportunity and foster good relations between people who share a protected characteristic and those who do not share it. This includes those of a particular race and so the occupants of the development. Granting planning permission for a settled base close to villages would advance equality for Gypsy and Travellers in terms of providing places to live and it would foster good relationships with the local community. However, dismissing the appeal would be a proportionate and necessary response to the PSED given the identified adverse effects of flood risk associated with the development.

For the above reasons, I have found the development does not accord with the policies of the LP. There is insufficient justification to grant planning permission contrary to the development plan. Therefore, I conclude the appeal should be dismissed.