Ben Garbett
A recent government policy update shifts the rhetoric on building in flood risk areas, not the reality, says solicitor Ben Garbett.
Existing UK flood risk management policy does not rule out all development in flood risk areas, and the newly finalised National Planning Practice Guidance (the “NPPG”) will not change this.
In a recent written ministerial statement (06 March 2014) on the day the government released its new online version of NPPG Nick Boles said this would make it “… crystal clear that councils need to consider the strict tests set out in national policy, and where these are not met, new development on flood risk sites should not be allowed”.
However, this rhetoric represents a change in emphasis, rather than a change in basic rules, given the heightened sensitivity surrounding this issue.
Local authorities may become more cautious in their decision-making, however the policy itself implicitly recognises that there will always be times when development is necessary: to provide new school places; to accommodate local housing needs; where an existing office building needs to be extended; or a change of use where a redundant brownfield industrial site is available for redevelopment (in preference to green belt).
What is the general planning approach to development and flood risk?
The Climate Change Act 2008 requires local authorities to take proactive steps to mitigate and to adapt to climate change. Local authorities, the Environment Agency and other prescribed bodies are obliged to work together in relation to area-wide strategic flood risk planning under the “duty to cooperate” in the Localism Act 2011.
Also by statute, local planning authorities must consult the Environment Agency before granting planning permission for developments in areas at risk of flooding (as defined in the Town and Country Planning (Development Management Procedure) (England) Order 2010). If the authority is minded to grant permission for “major development” against Environment Agency advice then it must notify the secretary of state who may decide to “call-in” the application for its own determination (The Town and Country Planning (Consultation) (England) Direction 2009). In this context, “major development” means, in respect of residential development, the provision of 10 or more dwellings, or a site of 0.5 hectares or more. In respect of non-residential development, the threshold is new floorspace of 1,000 sq m or more, or a site of 1 hectare or more.
The National Planning Policy Framework (NPPF) sets out the strict policy tests, which all local planning authorities are expected to follow. For both plan-making and decision-taking, inappropriate development should be avoided by directing development away from areas most at risk of flooding from all sources (the “sequential test”) to ensure that development can be safely and sustainably delivered. The Strategic Flood Risk Assessment (SFRA) carried out by the local authority will provide the basis for applying the sequential test, informed by internal drainage boards and by the Environment Agency to ensure that local plans are based on a robust evidence base.
In coastal areas an Integrated Coastal Zone Management approach across land/sea boundaries is required (this will have regard to the UK Marine Policy Statement and marine plans). Authorities should avoid inappropriate development in vulnerable coastal areas by identifying Coastal Change Management Areas, and by setting appropriate restraint policies, and use temporary permissions to limit the planned lifetime of developments.
Developing in flood risk areas
If wider sustainability considerations make it necessary for development to be carried out in flood risk locations, then it must be appropriately flood resilient and resistant, safe for the lifetime of the development (this is normally a minimum of 100 years for residential development), having regard to the vulnerability of the end-users, and, where possible, reduce flood risk overall (“the exception test”).
Site-specific flood risk assessments must accompany planning applications for all new development in medium and higher flood risk areas (Flood Zones 2 and 3).
So, after applying a sequential approach so that, as far as possible, development is located to where there is the lowest risk of flooding:
Site layout and design
Site layout should ensure that land uses most sensitive to flood damage have been placed in areas within the site that are at least risk of flooding (unless there are other overriding reasons), and include safe access and escape routes.
Building design and construction
Buildings should be protected from flooding using flood resilient and resistant construction e.g. buildings which are structurally sound to withstand flood events and/or by raising floor levels above the design flood level – but never to justify development in inappropriate locations.
Safety systems
People should be able to safely access and exit a building during a design flood, and to evacuate before an extreme flood.
Flood risk management Infrastructure
Infrastructure should be maintained so that it is structurally sound and reliable for the lifetime of the development.
Off-site impacts
It will need to be shown that run-off from the proposed development will not increase flood risk elsewhere (eg by giving priority to the use of sustainable drainage systems). The Floods and Water Management Act 2010 establishes a Sustainable Drainage Systems Approving Body in unitary or county councils. This body must approve drainage systems in new developments and re-developments before construction begins.
Residual risks
Residual risks will need to be addressed – eg by flood warning and evacuation procedures; and by considering the impact on essential services provided to a development.
Reducing flood risk where possible
Local authorities and developers are encouraged to seek opportunities to reduce the overall level of flood risk in the area and beyond, for example, through safeguarding land for flood risk management, or (where appropriate), through designing off-site works required to protect and support development in ways that benefit the area more generally.
If the local plan system is working properly then in future we can probably expect greater emphasis on strategic flood risk planning, with more joint working between planning authorities to identify the most suitable areas for new development avoiding flood risk, and using Community Infrastructure Levy to provide adequate flood defence management systems in existing built up areas.
Ben Garbett is a consultant solicitor at Keystone Law
