Environmental Law News Update

In this blog, Róisín Finnegan provides a recap of some recent and important planning and environmental cases over the past few months.

Gladman Developments Limited v Secretary of State for Housing, Communities and Local Government and Lancaster City Council [2026] EWHC 51
Is a failure to comply with the sequential test for flood risk fatal? In this case, the High Court was tasked with considering this question.

The sequential test is contained within Paragraph 172 National Planning Policy Framework (“NPPF”) – it aims to steer new development towards areas with lower flood risk. The Planning Practice Guidance (“PPG”) provides that where the sequential test has “been applied as necessary and not met, development should not be allowed”.

The Inspector refused an appeal against a refusal of planning permission relating to 644 homes because the sequential test for flood risk had not been complied with. This was the only outstanding reason for refusal, and there were several factors that supported planning permission being granted, including the sustainability and suitability of the site location, and shortage of housing land supply.

Gladman Developments challenged this decision by way of judicial review.

The appeal succeeded. Lieven J considered that the Inspector had erred in finding the lack of sequential flood risk test as fatal to the grant of planning permission, without carrying out any proper or meaningful balance with other policies and material considerations [40].

The Inspector’s decision was even more surprising in circumstances where she had concluded that not merely was there no unacceptable actual flood risk on the site, but that the proposal would lower the likelihood of flood risk off site. There was therefore no substantive harm, as opposed to policy harm [41]-[43].

It is clear therefore that a failure to undertake a sequential test does not amount to a reason for refusal in and of itself. Rather, it is another material consideration to be weighed in the balance, regardless of whether Paragraph 172 NPPF is framed in mandatory terms or not. This case is therefore another salutary reminder that planning policies should not be construed as statutory or contractual provisions.

Greenfields (IOW) Limited v Isle of White Council [2025] EWCA Civ 488

This case considered the consequences of a Council’s failure to publish the section 106 agreement on its planning register before the decision was issued on the lawfulness of the grant of permission.

Pursuant to Article 40(3)(b) of the Town and Country Planning (Development Management Procedure) (England) Order 2015, a copy of any planning obligation or section 278 agreement proposed or entered into must be included within the publicly available planning register.

The Appellants argued that there had been a breach of the Order as the proposed or final section 106 agreement was not placed on the Council’s planning register and there were matters they wished to make representations about.

The Court of Appeal found that had the Appellants had sight of the section 106 agreement, it was highly likely that they would have made representations to the Council regarding its contents [67]. In particular, regarding the adequacy of the financial sum to be secured for highways works, which was information not in the public domain.

The Court rejected that publishing the heads of terms of the section 106 agreement on the register was sufficient to comply with the Order in circumstances where they did not contain the amount of the financial contribution [64].

The appeal therefore succeeded on this ground and planning permission was quashed.

Key takeaways are that a failure on the part of the local planning authority to display the section 106 agreement prior to issuing a planning permission will not necessarily be fatal to the grant of permission. The relevant question will be what the consequences of non-compliance with the statutory duty are, rather than the mere fact of the breach of the duty, applying the approach of the House of Lords in R v Soneji [2005] UKHL 49, and the Supreme Court in AI Properties Ltd v Tudor Studios RTM Co Ltd [2024] UKSC 27.

Save the Fox and Hounds Campaign Group Ltd v Secretary of State for Housing, Communities and Local Government [2026] EWHC 4 (Admin)

A pub closure and a campaign launched by local residents to save it from being closed and changed to residential use led to a section 288 challenge brought by neither of the main parties to the appeal.

The Claimant challenged the decision of a Planning Inspector to consider an appeal by way of written representations, contrary to the wishes of the Claimant and the Parish Council.

It was accepted that there was no general obligation to provide reasons under section 319A Town and Country Planning Act 1990 for proceeding by way of written representations, or in policy. Paragraph 6.2.3 of the PPG provides that it is only the views of the appellant and the local planning authority that must be considered, along with the criteria for procedure determination when deciding which form of procedure the appeal should take. Where the Planning Inspectorate (“PINS”) choice differs from that of the LPA or appellant, reasons must be given for choosing a particular procedure (Paragraph 6.2.4 PPG).

The Claimant therefore argued that the duty to give reasons for continuing with the written representations mode arose in the circumstances by virtue of the common law duty to give reasons.

The Court considered that the common law duty to give reasons does not generally apply to procedural decisions, and that the factual situation “would need to be compelling” before the duty could be invoked [79]. These compelling circumstances did not arise here. First, the decision to continue with written representations was supported by the parties to the appeal. Second, the Judge considered that although there had been objections to the pub closure, it was not possible to infer that all those who objected were objecting to the mode in which the appeal would be determined [79]. Third, beyond these considerations, the development was not “major” where permission was granted in the face of planning policy, irrespective of its importance to the local community and it concerning a listed building.

It can be said therefore that, as a rule of thumb, it will take exceptional cases for a duty to provide reasons for opting for written representations to arise at common law where parties to the appeal do not oppose the appeal mode, regardless of wide-spread community interest. Each case will need to be considered on its facts, however the larger and more controversial the proposed development, particularly in legislative or policy terms, the more likely it seems that the exceptional duty would be invoked.