06.03.2025
A Court of Appeal judgment has confirmed that National Planning Practice Guidance (PPG) has “equivalent” legal status to the National Planning Policy Framework (NPPF).
The ruling means that planners are going to have to pay more attention to the former, say legal experts, and clarifies how councils and developers should approach the flood risk sequential test.
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On 30 January 2025, the Court of Appeal issued its decision in Mead Realisations Ltd v Secretary of State for Housing, Communities and Local Government [2025] EWCA Civ 32 (The judgement can be found here). The case related to a scheme for 75 new homes on a 5 hectare site near Weston-super-Mare, which was refused permission on the grounds that the proposals ran contrary to the flood risk sequential test in paragraph 162 of the former version of the NPPF (now paragraph 174 in the December 2024 version of the framework).
Following an appeal, an Inspector upheld North Somerset Council’s decision, concluding that the project failed the sequential test because there were “reasonably available sites” for residential development elsewhere. The inspector cited the PPG on flooding in the decision.
The appeal dismissal was subsequently challenged in the High Court on the basis that the Inspector had misinterpreted planning policy.
Following dismissal of the legal challenge, the Appellant took the case to the Court of Appeal on the grounds that ‘the PPG was "subservient" to the NPPF and could provide guidance or a "steer" on the application of NPPF policies, but could not create additional requirements or restrictions which must be complied with’.
However, in January 2025 the Court of Appeal upheld the High Court’s decision, and in the leading judgment, it was confirmed that the legal status of the NPPF and PPG is essentially the same. As a matter of law, both are statements of national policy issued by the minister with overall responsibility for the operation of the planning system, and both are capable of being material considerations in the determination of planning applications.
What is the difference between NPPF and PPG?
The NPPF is a comprehensive framework of national planning policy, in which the Government sets out its general policies for planning decision-taking and plan preparation. Whereas the PPG is national guidance for planning practice, which can reinforce the NPPF.
NPPF and PPG have equal status
This recent ruling confirms that equal status should be afforded to the PPG. The Court held that the PPG "complements" national planning policy in the NPPF and explains and clarifies the policies in the NPPF to which it relates.
Ideally, national planning policy and guidance should not be inconsistent, but this judgment confirms that there is no legal reason why the PPG has to be consistent with the NPPF – and therefore in theory at least, PPG could actually be used to amend the NPPF.
What does this mean for developers?
Specifically in relation to flood risk, the Court of Appeal confirmed that the PPG did not amend paragraph 162 of the NPPF in relation to "reasonably available sites" and the sequential test. Instead, it provides "practical guidance on the application of the policy", which should be taken when assessing the ‘reasonably available sites’ element of the flood risk assessment sequential test for the purposes of decision-making.
It is therefore important to have careful regard to both sources of policy when considering flood risk. This places greater importance on the updated PPG on flood risk and the sequential test, which we expect to be published by the government soon.
As well as flood risk, the ruling is relevant to all types of development since it relates to all policy areas and not just flood risk.
In short, developers will be able to use the PPG to support their development proposals to a greater extent than they have in the past.
Advice for going forward
Although the NPPF is intended to be a "comprehensive framework" of national planning policy, in light of this case, it will be important to consider the PPG alongside, and in addition to the NPPF.
Furthermore, as the PPG is updated by publication online, and generally without prior consultation, it will be even more important to pay close attention to PPG updates from now on, particularly if the updates change the established policies or policy direction set out in the NPPF.
If you would like to discuss this ruling in further detail, or have a flood risk query, please feel free to contact DHA's Chris Smoker.
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