UK: Development In Flood Zones - February 2008

Last Updated: 29 February 2008
Article by David Shakesby and Carl Roche

The severe flooding events of summer 2007 brought into sharp focus the risks of living and working on flood plains. The Environment Agency believes that future flooding events are most likely to be driven by decisions concerning the location, design and nature of development and land use.

Local Planning Authorities (LPAs) face the difficult task of balancing the demand for ever more residential and commercial property against the consequence of further building within designated flood zones.

Since October 2006 LPAs have been required to consult the Environment Agency on all applications for development (other than minor development) in flood zones 2 and 3, and for any development on land with an area of more than 1 hectare in flood zone 1. Flood zones are categorised as follows:

  • Flood zone 1. Low risk of flooding.
  • Flood zone 2. Low to medium risk of flooding.
  • Flood zone 3. High risk of flooding.

The initial requirement was only to consult the Environment Agency but LPAs did not always accept the resulting recommendations. In 2006/07 LPAs granted permission for 13 major developments against Environment Agency advice, 7 of which were in Flood Zone 3.

This requirement to merely consult the Environment Agency was redefined by a new Flooding Direction circular, which became effective on 1 January 2007. This provides that if the Environment Agency objects to an application for a 'major' development on flood risk grounds, the following procedures apply:

  • The LPA, Environment Agency and applicant should discuss and try to agree a course of action to resolve the objection.
  • If the Environment Agency will not withdraw its objection, but the LPA wishes to grant permission, the LPA must notify the Secretary of State of the proposal.
  • The Secretary of State will check that the application complies with planning policy and may ultimately exercise the power to determine the application.

The following extracts from the Environment Agency's Development and Flood Risk 2006/07 report indicate that if an application is initially rejected, the solution for the applicant may be simple:

'The requirements for flood risk assessments (FRAs) to accompany planning applications is still being ignored by many developers…The lack of FRA (567 cases) or failure to provide a satisfactory FRA (266 cases)…now accounts for 62% of all Environment Agency objections.'

This makes it clear that one of the best ways for developers to avoid wasting both the time and cost of resubmitting an application is to ensure that they, or their agents, submit a properly completed FRA with their original planning application. If objections are raised, despite a FRA having been submitted, it should be noted that:

'In 993 cases (36% of objections) Environment Agency objections were resolved through negotiations with the LPA and/or developer'

Whilst the Environment Agency is likely to make it increasingly difficult for developers to develop within flood zones, an initial objection to an application need not leave the proposal 'dead in the water'. Even if a resubmission or negotiation does not result in the grant of permission, the applicant may still be able to challenge the decision by:

  • Planning appeal in the case of an LPA refusal; and/or
  • High Court application in the case of refusal by the Secretary of State; and/or
  • Judicial review of the Environment Agency's decision, or of the decision to call in by the Secretary of State.

Depending on the circumstances of a refused application, a developer may have more than one legal option to consider.

Finally, developers should note that the Environment Agency website states that it is regularly revising the flood maps. No further details are given, but the concern for potential developers is that this revision may:

  • Increase the area of land designated as 'flood zone'; and/or
  • Increase the flood risk levels for current flood zones.

In either case there are two potential effects:

  • Land owners wishing to develop their land may find far more serious constraints if the flood level risk is raised upwards; and/or
  • The supply of land which is suitable for development may decrease if significant areas are added to flood zones for the first time, or the flood zone risk is upgraded.

Developers should be aware that the remedy, if they disagree with the Environment Agency's decision to re-categorise the flood risk of land, is judicial review - and the application must be made promptly, within the maximum time limit of three months.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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