Many investors and commercial owners are moving into alternative sectors, or developing out vacant land they currently own to maximise the potential income. There are many considerations when doing so, but here we focus on flood risk issues in Scotland, particularly in the context of the planning regime.
As you may be aware from our recent blogs and podcasts, the Scottish Government is implementing the NPF4 (national planning framework 4) policies, which sit alongside existing Scottish planning legislation. Local authority planning committees and SEPA (Scottish Environmental Protection Agency) are both stakeholders in that and both have roles to play in planning applications.
NPF4 policy on flood risk and water management (NPF4 policy 22)
The intention behind this policy is to strengthen resilience to flood risk by (i) promoting avoidance as a first principle (i.e. the assumption being against developing on known flood risk areas); and (ii) reducing the vulnerability of existing and future development to flooding by remedial works.
SEPA flood risk standing advice
In July 2023 SEPA issued flood risk standing advice for planning authorities to consider as part of any planning application process. With a view to speeding up the planning application process to facilitate development, SEPA's objective was to provide planning authorities with information to take decisions without the need to request advice from SEPA.
A case study: development of Murrayfield Sports Bar
The refusal of planning permission for a student accommodation development in Edinburgh late in 2023 shows the difficulties addressing the planning implications of flood risk.
The site is around 250m from the Water of Leith. The area between the site and the river has a range of buildings and uses. The wider area has a mix of tenements and flats, small and large scale retail, commercial units and student accommodation.
The site is within the 1 in 200 year flood risk area. Under NPF4 policy 22 (see above), redevelopment of the site would only be supported if the proposal was for an equal or less vulnerable use. The existing bar use falls into the least vulnerable use category, whereas student accommodation is within the highly vulnerable use category.
The report to the Council's planning committee recommended approval, as the flood risk did not outweigh the benefits of the proposal and its broad compliance with the objectives of the development plan. It noted the development included mitigation measures to manage flood water in extreme events without accommodation quarters flooding.
However the planning committee disagreed with the officer recommendation, and refused planning permission for the student accommodation on the grounds of the flood risk.
On appeal, the planning permission was again refused. The reasons for the refusal were that the scale and nature of the proposed development and the lack of a demonstrable design solution enabling residents to safely exit from the building in the event of flood, led the appeal reporter (Scottish equivalent of inspector) to conclude that the proposal was not in overall accordance with the development plan.
Role of the Scottish Ministers
The importance of the flood risk issue is emphasised by the requirement for planning authorities to notify the Scottish Ministers if they intend to grant planning permission contrary to a flood risk objection by SEPA.
The notification procedure provides an opportunity for the Ministers to call-in the application for their determination. However, the Ministers often decide not to call-in the application, clearing it back to the planning authority to grant permission. Earlier this year a planning application for a housing development in Perth was notified to the Scottish Ministers who then declined to intervene and passed the decision back to the planning authority.
A proposed waste tyre processing plant in Renfrewshire was called-in by the Ministers on the grounds of potential conflict with NPF4 flooding policy. The site is in the functional flood plain and at medium to high fluvial flood risk. Although the Ministers decided the proposal did not comply with the development plan due to flood risk, they granted planning permission on the grounds of the benefits of the proposed development on a brownfield site.
Key takeaways
Developing on a known flood plain or in a known flood risk area may add additional complexity to the planning process, but there is no blanket moratorium in Scotland (as at the time of writing) preventing developing on such areas, even for residential uses.
Any design of such developments, particularly for high density residential use such as student accommodation or private rental, should take full account of the flood risk. Ensuring the development provides sufficient exit from the building in the event of flooding – similar to the considerations for fire risk – is a key design consideration.
Specialist advice is advisory and there is information publicly available. For example, the Town and Country Planning Association has online learning resources on planning for flood risk. Those are based on the English PPG, but are of general use.
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