Appeal 6004635

The appeal is dismissed.

The description on the application form is inaccurate as it refers to the erection of a two storey building which is not evident from the plans and other appeal documents. Therefore, I have used the amended description from the decision notice and appeal form which I consider is a more accurate description of the development proposed.

The main issue is whether the site is a suitable location for the proposed development, with particular regard to national and local policy relating to flood risk.

The appeal site is a vacant plot of land located between existing houses on [address]. The site is currently bound by hoarding and has extensive overgrown vegetation. The River Brent runs adjacent to the site boundary to the northwest. The proposal comprises the erection of a residential dwelling fronting [address], with associated garden space to the rear.

Policy ECC03 of the Barnet Local Plan 2021-2036 (adopted March 2025) (the Local Plan) and paragraphs 173-175 of the National Planning Policy Framework (December 2024) (the Framework) seek to ensure that development proposals are located in areas at the lowest risk of flooding from any source, via the application of the sequential test (ST). Paragraph 023 of the flood risk and coastal change Planning Practice Guidance (PPG) explains that avoiding flood risk through the ST is the most effective way of addressing flood risk because it places the least reliance on measures like flood defences, flood warnings and property level resilience features.

Paragraph 175 of the Framework provides an exception to the requirement for a ST, in situations where a site-specific flood risk assessment demonstrates that no built development within the site boundary, including access or escape routes, land raising or other potentially vulnerable elements, would be located on an area that would be at risk of flooding from any source, now and in the future (having regard to potential changes in flood risk).

Paragraph 027 of the PPG states that a proportionate approach should be taken in applying paragraph 175 of the Framework. Where a site-specific flood risk assessment demonstrates clearly that the proposed layout, design, and mitigation measures would ensure that occupiers and users would remain safe from current and future surface water flood risk for the lifetime of the development (therefore addressing the risks identified e.g. by Environment Agency flood risk mapping), without increasing flood risk elsewhere, then the ST need not be applied.

Parts of the site fall within [name] 1, 2 and 3. The proposed garden space would be within [name] 2 and 3, which are areas with a higher flood risk. The flood risk assessment submitted with the appeal lacks substantive detail regarding the impact on the proposed garden area. While there is no built form proposed within the garden space, it would constitute built development for the purposes of paragraph 175 of the Framework as it would be a potentially vulnerable element of the proposal where flood risk could cause risk to future occupiers.

The flood risk assessment identifies a range of mitigation measures to mitigate fluvial flood risk in parts of the site with higher flood risk. While such solutions could be effective, they would introduce reliance on specific measures rather than avoiding flood risk, which is not consistent with the aim of the sequential approach. The identified measures also seem to focus on the proposed dwelling rather than the whole site including the rear garden area.

Given the lack of detail provided, it would not be appropriate to employ the proportionate approach advocated by the PPG in this instance, and therefore, the ST exception in the Framework would not apply.

I have been referred to previous appeals at the site from May 20241 and May 20252, which were both dismissed for reasons including the failure to submit sufficient substantive evidence which demonstrates the application of the ST. A ST has been submitted as part of the current appeal, but submission does not in itself ensure compliance with policy. Therefore, the previous appeals have very limited weight insofar as they relate to the content of the ST.

The Inspector in the May 2025 appeal found that the proposal did not benefit from an exception to the ST requirements in the Framework as the proposed garden of the development was at risk of flooding. The circumstances in the current appeal are very similar and therefore I have no reason to take a different approach to that taken by my colleague previously. 1 Appeal Ref: APP/N5090/W/23/3326494 2 Appeal Ref: APP/N5090/W/24/3358000

I note that there was formerly a residential use on the site, but this does not trigger an exemption to the ST requirements, as this is determined based on the development proposed.

Taking these issues into account, the proposal would trigger the requirement for a ST. PPG provides guidance on several aspects of preparing a ST, including the identification of the search area and establishing what is a ‘reasonably available’ site. However, PPG does not set out prescriptive requirements, meaning there is significant discretion on the scope of the ST.

The submitted ST sets out a clear methodology including information on the search area, site size threshold and what constitutes a ‘reasonably available’ site.

While the proposed methodology is largely acceptable and consistent with the Framework and PPG, I note the omission of sites with extant planning permission. Such sites could provide a suitable source of alternative sites and should form part of the assessment. There are sites included within the ST via other sources that have extant permission, therefore this should not be a barrier to consideration of a site in principle.

I also have concerns regarding the approach in the ST to establishing whether a site is ‘reasonably available’. The criteria identified in the ST refers to whether a site can be viably developed and whether a site is available for purchase at a fair market value. This would require detailed consideration of different aspects to determine with any accuracy; however, the ST methodology does not provide any metric or process for such an assessment, even at a high level.

Notwithstanding these concerns, the ST establishes a longlist of 236 sites from various sources, which includes some double counting of sites that are counted via multiple sources. The ST concludes that, following assessment of these sites against the methodology, there are no sequentially preferable sites for the proposed development.

Of the 236 total sites, 17 sites address most of the criteria identified in the ST and are ruled out as they are not considered to be ‘reasonably available’. Mostly, the justification given is acceptable, for example, the site has extant permission for a greater quantum of development, or there are long leaseholders on the site which would affect deliverability of development.

However, there are 2 sites where the justification provided is inadequate. Site [address] is excluded as there is an extant permission on the site for a single dwelling with a basement, which the appellant is not seeking to develop due to accessibility and cost issues. Site [address] is excluded as there is extant permission for a bungalow, which the appellant states is insufficient to meet their needs.

The PPG states that sites should be considered ‘reasonably available’ if they are able to meet the same development needs as the proposal. While the housing typologies in the extant permissions differ from the proposal, the ST suggests that both permissions relate to a single dwelling which would meet general housing needs. There is no evidence that the appeal proposal is intended to address any specialist rather than general housing needs, meaning that Sites 230 and 231 would be ‘reasonably available’ sites.

While 2 sites out of 236 is a very small proportion, the purpose of the ST is to ensure that areas at little or no risk of flooding from any source are developed in preference to areas at higher risk. As the submitted ST indicates that there could be sequentially preferable sites, the ST is not passed.

The Environment Agency have not objected to the ST. However, a lack of objection does not equate to the ST being acceptable, and therefore the lack of objection would not be determinative in my assessment of the appeal.

In addition to the 2 previous appeals on the site, I have also been provided with extracts from other appeal decisions which concluded that the ST should be applied pragmatically. However, I have not been provided with these decisions or the appeal reference numbers. I am also not provided with any details of these cases to demonstrate that the circumstances are similar to the appeal proposal. Therefore, they are not determinative in my decision.

However, the issues they purportedly raise are reflected in the Framework and PPG which are material considerations that I have had regard to when determining this appeal.

In conclusion, the proposal would not be in a suitable location with regard to flood risk and therefore would not be in accordance with Policies ECC01, ECC03, CDH02 and CDH07 of the Local Plan and Policy SI 12 of the London Plan 2021 (adopted March 2021). These policies, taken together, seek to manage the impacts of flood risk through prioritising lower risk sites and requirements relating to sustainable design and water management, to contribute to efforts to mitigate and adapt to climate change.

The proposal would not accord with paragraphs 173-175 of the Framework and the PPG, which aim to steer new development to areas with the lowest risk of flooding from any source.

The proposal would also not accord with section 2.15 of the Council’s Sustainable Design and Construction Supplementary Planning Document, which reiterates the sequential approach to the location of development and provides guidance on the scope of STs.

The proposal accords with policies in the development plan and the Framework which encourage the supply of new housing in sustainable locations, identify that small sites can make an important contribution to housing delivery and promote and support the development of under-utilised land. However, these benefits would only attract limited weight in my determination of this appeal.

Several matters were raised by an interested party, including the potential for impacts relating to character and appearance and the living conditions of neighbouring occupiers. As the appeal is being dismissed for other reasons, these matters do not need to be explored in detail.

The proposal would conflict with the development plan as a whole and there are no other material considerations which indicate a decision should be taken otherwise than in accordance with it. Therefore, the appeal should be dismissed.