Faversham Appeal Shifts Flood Risk Sequential Test Best Practice

A recent appeal decision (Ref: APP/V2255/W/24/3350524) has stirred interest across the planning and flood risk sectors. The case concerned an outline application for 250 homes on land at Ham Road, Faversham — partly at risk from tidal and surface water flooding. Importantly, the developer had not undertaken a Sequential Test.

Their reasoning, and its implications, may well shape how future developments approach flood risk policy — particularly where technical non-compliance coexists with demonstrable flood safety. And crucially, the case now joins Mead and Yatton in forming a pattern of appeal decisions where flood risk policy breaches have been treated as significant, but not determinative.

A Clear Policy Conflict

Swale Borough Council refused the scheme in June 2024, citing, among other things, a failure to demonstrate that development “could not be located in areas of lower flood risk (no Sequential Test has been undertaken)” — a direct breach of both NPPF paragraph 175 and local plan policies DM21 and ST7(11).

The flood risk issues were not marginal. According to the Flood Risk and Drainage Proof of Evidence submitted by appellant, the site was partly at risk from a 1 in 200-year tidal flood event by the year 2115, assuming the eventual cessation of flood defence maintenance under the Medway Estuary and Swale (MEAS) strategy. The relevant design flood level, agreed with the Environment Agency (EA), was set at 5.83m AOD.

Several areas — particularly the north-western and south-eastern site margins and parts of the main access route — would be inundated in this scenario. Surface water flood mapping also showed localised areas of risk within the developable area, particularly where former gravel workings had created undulations.

In short, the site was not wholly within Flood Zone 1, and risk existed from multiple sources. That should have triggered a Sequential Test.

The FRA Argument: Safe by Design

The applicant did not deny the presence of flood risk. Instead, their strategy hinged on mitigation. The submitted Flood Risk Assessment (FRA) proposed land raising, with finished floor levels (FFLs) set at a minimum of 6.13m AOD — 300mm above the agreed tidal design flood level. Sleeping accommodation would be higher still, at 6.43m AOD.

Surface water risk would be dealt with through a detailed SuDS scheme, including an attenuation basin. The basin itself was identified by the Lead Local Flood Authority (LLFA) as vulnerable to tidal inundation, but the applicant proposed bunding to a height of 600mm and the use of non-return valves to maintain capacity.

The Environment Agency (EA) accepted this approach, withdrawing its initial objection after the applicant agreed to raise floor levels and avoid infiltration in areas of former landfill. The EA’s final position was that the FRA “takes into account the 1 in 200 year flood level and applies suitable uplift to account for 100 years of climate change impacts.”

The LLFA, too, confirmed that with conditions, the strategy was acceptable. However, neither body commented on the absence of a Sequential Test — because that’s not within their remit. That, ultimately, fell to the Inspector.

The Appeal Decision: Conflict, But No Fatal Flaw

The Inspector gave short shrift to the idea that site layout alone could replace a Sequential Test:

They confirmed that a test was required due to the presence of both tidal and surface water flood risk affecting housing and access. Its omission created a clear and significant conflict with national and local policy, particularly NPPF paragraphs 170–177 and Local Plan policies DM21 and ST7(11).

So why was the appeal allowed?

The answer lies in the Inspector’s discussion at paragraph 101:

Because the mitigation proposed (and accepted by the EA and LLFA) would remove all actual risk of flooding, the Inspector concluded that the conflict — while significant — did not amount to a “strong reason” for refusal. As such, the “tilted balance” under NPPF paragraph 11(d) remained engaged. Given Swale’s acknowledged housing shortfall (3.98 years), the balance tipped in favour of approval.

A Shift in Tone — and the Wider Picture

This decision marks a notable shift in the interpretation of national flood risk policy. While technically non-compliant with the Sequential Test requirement, the Inspector treated the absence of the test as a significant policy conflict — but not one that overrode all other considerations. This approach, grounded in an assessment of actual risk rather than procedural omission, is likely to influence how future schemes are appraised, both at local level and on appeal.

That logic — that the absence of a Sequential Test may not be fatal, if mitigation removes all flood harm — is consistent with the Inspector’s approach in the recent Yatton appeal. In that case, too, the development was approved despite a clear policy breach. The Inspector acknowledged the lack of a Sequential Test but concluded that, as no built development would be at flood risk due to mitigation, the balance fell in the scheme’s favour.

Contrast that with Mead, where the High Court quashed permission because the local authority had failed to apply the Sequential Test at all. In Mead, the legal error was procedural: the test had not been done, and the court ruled that its omission invalidated the decision. Mead serves as a reminder that while Inspectors may weigh technical breaches in planning judgment, Local Planning Authorities (LPAs) cannot simply ignore the procedural steps required by national policy.

Together, these decisions paint a more layered picture. Mead underscores the necessity of applying the test. Yatton and now Faversham show that if the test is omitted, Inspectors may nonetheless grant permission where evidence shows no real-world harm, and where the benefits of the scheme are substantial.

What This Means for Best Practice

For planning authorities and consultants alike, the message is twofold.

First, the Sequential Test remains formally required. It is not optional, and LPAs are right to expect it whenever any part of a site — including access or open space — lies within a mapped flood risk area.

Second, where a test hasn’t been carried out, the planning system may still support a scheme if the Flood Risk Assessment shows that:

• No part of the proposed built development will be at risk post-mitigation,
• Safe access and egress can be maintained,
• flood risk mitigation proposals are technically sound, practically achievable, and capable of long-term operation,
• And all statutory consultees are satisfied on safety grounds.

Faversham does not weaken the Sequential Test, but it recalibrates how its absence is treated in the planning balance.

At Unda, we see this as an evolution in line with sound planning logic. The flood risk policy framework remains firm, but its application is clearly influenced by mitigation quality, housing need, and overall scheme benefits.

The Sequential Test, it seems, may now be less of a red line — and more of a red flag.