Full text:
We commented on the Regulation 18 draft Local Plan consultation in January 2024. Subsequently, we issued comments on the Level 1 Strategic Flood Risk Assessment draft version of June 2024 on 16 August 2024. The Council's Phase 2 Water Cycle Study dated September 2024 has been reviewed during this current consultation.
Enclosed with this letter are our six representations on the Publication Plan. We would be grateful if you could acknowledge the receipt of our representations. These are listed as follows with our overall position in brackets:
• EA1 - Sequential Test (Unsound)
• EA2 - L2SFRA (Unsound)
• EA3 - SCC5 FloodRisk (Unsound)
• EA4 - SNE2 Habitats (Unsound)
• EA5 - SH09 (Sound)
• EA6 - SDS8 (Sound)
We found the Phase 2 Water Cycle Study acceptable. Much more could have been made to promote water quality using the recommendations from this study, however, on balance, there are a range of policies which will help address water quality (policies SDS8, SDS2, SCC5 and SCC6). We are also generally supportive of policies SCC1, SCC6 and SDM2 for their policy requirements for climate change and achieving water efficiency and reducing mains water consumption.
The lack of evidence demonstrating the flood risk sequential test and the absence of a level 2 SFRA to support sites proposed in areas at risk of flooding has resulted in us finding the publication plan (and sustainability appraisal) unsound on these elements. The removal of text from policy SCC5 since the last consultation has resulted in a soundness objection. To clarify, in the absence of the relevant tick box on the representation form, we are willing to attend the examination on these representations. We are happy to meet with you to discuss these representations in more detail and agree a way forward. Please note this may be subject to our cost recovery planning advice service.
The evidence base including Sustainability Appraisal has not demonstrated how the Council has applied the flood risk Sequential Test as outlined in National Planning Policy Framework paragraphs 167-171. Nor has it confirmed that the sites proposed with zones of medium or high fluvial flood risk (and other sources) have passed the Sequential Test.
Therefore, in the absence of evidence demonstrating the strategic application of the Sequential Test, the Local Plan is unsound as it is not consistent with national policy (paragraphs 167-171). The absence of evidence of application of Sequential Test casts doubt on whether it is 'justified' i.e. an appropriate strategy based on proportionate evidence.
We outlined this in our comments to the regulation 18 consultation. We advised this could either be an update to the Sustainability Appraisal or as a standalone document. However, we can't find reference to the Sequential Test (or Exceptions Test) within the Sustainability Appraisal and no other standalone document appears to be available. There are various places within the Sustainability Appraisal Main Report and Appendices where commentary on the application of the Sequential Test could have featured e.g. Paragraphs 9.2.6-9.2.10 (Chapter 9 Climatic Factors), Box 9.1 Summary of Identified Impacts on Climate Factors, Box 9.2 Summary of Mitigating Effects, Box 9.3 Summary of Residual Effects and Appendix C and Appendix E.
Page C3 of SA Appendix C states in response to our regulation 18 comments that 'Regulation 19 will refer to the latest evidence, including any updated Sequential Test information.' The Sequential Test information is not demonstrated. The L1 SFRA 2024 provides the high-level flood risk information. However, the Sequential Test as a planning decision making tool can only be undertaken by the Council's Policy Team, based on the SFRA mapping.
Appendix E of the Sustainability Appraisal, has appraised the site allocations against SA Objective 5 'Climate Change Adaptation.' It summarises that most sites are in Flood Zone 1, 9 are in Flood Zone 3, 2 are in Flood Zone 2 and 5 have indicative Flood Zone 3b (functional floodplain). This has relied on the Black Country SFRA to identify the flood zones. Although various parts of the SA main report and appendices refer to the 2024 SFRA, the data from this SFRA hasn't been used to inform the SA, e.g. the SFRA maps (3a and 3b) or Appendix M L1 Site Screening Results. Appendix E could have confirmed the outcome of the Sequential Test and where applicable Exceptions Test.
Actions the Council has already undertaken could have contributed to the application of the Sequential Test. For example, the Site Screening process may have helped achieve the aim of the Sequential Test in directing most of the Councils development to Flood Zone 1 and sites of lowest flood risk from other sources, but this is not explained in the Sustainability Appraisal. Statements made within the Sustainability Appraisal imply a sequential approach has been applied but this needs to be obvious and explicit in order to demonstrate a sound plan.
Prior to the submission of the plan we invite the Council to outline how they intend to address this. This could be amendments to the Sustainability Appraisal or a standalone document. This could be agreed within a Statement of Common Ground.
Actions the Council has already undertaken could have contributed to the application of the Sequential Test. For example, the Site Screening process may have helped achieve the aim of the Sequential Test in directing most of the Councils development to Flood Zone 1 and sites of lowest flood risk from other sources, but this is not explained in the Sustainability Appraisal. Statements made within the Sustainability Appraisal imply a sequential approach has been applied but this needs to be obvious and explicit in order to demonstrate a sound plan.
Prior to the submission of the plan we invite the Council to outline how they intend to address this. This could be amendments to the Sustainability Appraisal or a standalone document. This could be agreed within a Statement of Common Ground.
A Level 2 SFRA has not assessed the sites proposed in areas of medium to highest flood risk from rivers (Flood Zone 2 and 3a/3b and other flood risk sources) to check feasibility of allocating site. Flood depths, duration, rate of inundation and extent including climate change can impact on deliverability and capacity of site for the type of development, potential number of dwellings and density.
If following the application of the flood risk Sequential Test, it has not been possible to locate all development to areas with a lower risk of flooding, the Exception Test is applied. Paragraphs 169-171 of the NPPF set out the policy for strategic allocations. Diagram 1 'Taking flood risk into account in the preparation of strategic policies' (Paragraph: 007) sets out the steps and when a L2 SFRA is required.
Sandwell according to the Sustainabilty Appraisal have some sites in areas of Flood Zone 2, Flood Zone 3 and Flood Zone 3b. When compared against the L1 SFRA 2024 mapping, the following sites proposed for housing fall into this category (note that this excludes any employment allocations affected by functional floodplain and flood zone 3a/2):
*SH59 Beever Road
*SH5 Mill Street, Great Bridge
*SH36 Land between Addington Way and River Tame
*SH35 Rattlechain Site Land to the North of Temple Way
*SM2 Lion Farm, Oldbury
* SH16 Cradley Heath Factory Centre, Woods Lane, Cradley
*SH2 Land adjacent to Asda, Wolverhampton
We recommend the inclusion of other strategically important sites such as SH18 Friar Park, Wednesbury which are close to or on the edge of the floodplain to check for the impact of climate change and other sources of flood risk.
Please note the L1 SFRA 2024 by JBA has provided a Site Screening Results in Appendix M.
The presence of functional floodplain (3b) can significantly restrict a site's capacity to deliver development as only water compatible or essential infrastructure are permissible in this zone.This is reinforced by your local plan policy SCC5 Flood Risk.
Flood Zone 3a (and including climate change) can also be restrictive if the extents limit available space for flood mitigation including floodplain compensation and safe access and egress. A Level 2 SFRA will assess in more detail the flood risk characteristics of a site and as stated above should inform the Council of the overall deliverability of the site allocation.
Paragraph 171 states both elements of the exception test should be satisfied for development to be allocated or permitted.
In the absence of a L2 SFRA we consider the Local Plan including Sustainabilty Appraisal is unsound as it is not consistent with national policy (paragraph 169-171). It is also not meeting the justified test of soundness, as without a complete evidence base to support the relevant site allocations, it's not an appropriate strategy based on a proportionate evidence base.
Although we were supportive of this policy at the regulation 18 stage (draft policy SCC4 now SCC5) a section of the policy has been removed which we considered to be an essential component. The following section of the policy appears to have been removed:
"15. All developments should seek to provide wider betterment by demonstrating in site-specific flood risk assessments and surface water drainage strategies (where required) what measures can be put in place to contribute to a reduction in overall flood risk downstream. This may be by:
a) provision of additional storage on site e.g., through oversized SuDS, natural flood management techniques, green infrastructure and green-blue corridors; and / or
b) by providing a partnership funding contribution towards wider community schemes (both within and beyond the Black Country, in shared catchments with Southern Staffordshire and Birmingham).
We cannot consider this omission to be sound in terms of being 'justified' or 'consistent with national policy.' It is not consistent with National Planning Policy Framework (NPPF) paragraphs 158 and 166 as follows:
158. Plans should take a proactive approach to mitigating and adapting to climate change, taking into account the long-term implications for flood risk, coastal change, water supply, biodiversity and landscapes, and the risk of overheating from rising temperatures. Policies should support appropriate measures to ensure the future resilience of communities and infrastructure to climate change impacts, such as providing space for physical protection measures, or making provision for the possible future relocation of vulnerable development and infrastructure.
166. Strategic policies should be informed by a strategic flood risk assessment, and should manage flood risk from all sources. They should consider cumulative impacts in, or affecting, local areas susceptible to flooding, and take account of advice from the Environment Agency and other relevant flood risk management authorities, such as lead local flood authorities and internal drainage boards.
The NPPF paragraph 20 also indicates 'flood risk' as a strategic policy issue.
This is now unsound as the policy does not include strategic flood risk measures based on a cross-boundary study via the Cumulative Impact Assessment (CIA) and the conclusions and recommendations by both the Black Country SFRA 2020 and the L1 SFRA 2024 by JBA.
The 2024 L1 SFRA section 7.3 explains that the Cumulative Impact Assessment is being undertaken with Wolverhampton and Dudley Councils. The results summarise a number of catchments rated as high-risk or medium-risk for cumulative impacts from historic flood risk, surface water flood risk, potential development, predicted flood risk from increased runoff upstream and sewer flooding. Strategic solutions are listed in section 7.4 of the SFRA including seeking opportunities to deliver flood risk benefits through development, promoting natural flood management, and contributions towards flood risk management measures that benefit the wider community.
10.3 has policy recommendations from the cumulative impact assessment, stating:
The cumulative impact assessment for the Black Country has highlighted that the potential
for development to have a cumulative impact on flood risk is relatively high across the
authorities. Many of the catchments are red and amber rated and those that are yellow still
have levels of flood risk higher than many of the rural catchments in surrounding local
authority areas in Southern Staffordshire. This supports the need for incremental action and betterment in flood risk terms across all four Black Country Authority areas.
Section 15 directly addresses this recommendation by requiring developments to seek to provide 'wider betterment' and measures to contribute to a reduction in overall flood risk downstream. Plus contributing to wider community schemes is likely to become more important in the coming years. This allows the policy to compliment the policies of neighbouring authorities such as Dudley and Wolverhampton, help to alleviate flood risk strategically across the Black Country and demonstrate cross-boundary co-operation.
We don't know if section 15 of the draft SCC4 policy was removed in error, or removed to reduce the length of the policy. There are other sections of the policy that could be withdrawn if the concern is the length of the policy e.g. the requirements for site-specific FRAs are already set out in the NPPF, the PPG and other web sources such as https://www.gov.uk/guidance/flood-risk-assessment-for-planning-applications. To overcome this we request the Council re-insert section 15 on achieving wider flood risk betterment.
Other parts of the policy are welcome, in particular, section 6 on watercourses and flood mitigation. We strongly support the requirement in part iv for a ten metre easement alongside main rivers.
Policy SNE2 is comprehensive and sets out the requirements for Biodiversity Net Gain. At the regulation 18 consultation, although we welcomed the policy, we recommended that the policy acknowledge the role BNG will have for the water environment, with reference to the Humber and Severn River Basin Management Plans. The RBMPs are a key evidence base for applicants to consider when a watercourse metric is required, as the objective of achieving good status for waterbodies will also contribute towards nature recovery. Achieving the objectives of the RBMPs by restoring and renaturalising watercourses and/or creating wildlife rich river corridors can contribute to an applicants biodiversity credits and gain plan. Watercourse enhancement as part of developments will play a key role in delivery of BNG across Sandwell in addition to other types of habitat creation or enhancement.
Unfortunately, our advice has not been taken on board or incorporated within policy SNE2 or the justification text.
The West Midlands Combined Authority Local Nature Recovery Strategy may not be published for some time yet, and it's important that other strategies and plans such as RBMPs are referenced.
Without an appropriate reference to RBMPs and the water environment in relation to this policy, we would consider it inconsistent with paragraph 180 of the National Planning Policy Framework, and therefore unsound.
Although we would have preferred amendments to the policy text, we think this can be overcome with a minor amendment to the Justification text, paragraph 4.16, as follows:
4.16 Development should also contribute to wildlife and habitat connectivity in the wider area, in line with the Biodiversity Action Plan, River Basin Management Plans and the Black Country and West Midlands Local Nature Recovery Strategy.
A reference to paragraph 4.16 to the RBMP will help secure this important evidence base as part of a number of strategies applicants should consider when designing for BNG and achieving wider biodiveristy benefits as it relates to the water environment. Councils have a duty to have regard to RBMPs in plan-making and decision taking (Water Environment Regulations 2017) and the inclusion of this minor change will help towards meeting that duty.
We support part 4 (g) of the policy, which states:
the site should not be at risk of flooding and proposals must not increase flood risk for others, in accordance with Policy SCC5.
This has taken on board our previous comments at the regulation 18 stage and we welcome the inclusion to ensure the safety of occupiers and residents at these sites.
Whilst we would have expected more strengthening of the policy in terms of blue infrastucture, such as emphasis on restoring and enhancing the river network, we are overall in support of Policy SDS8. In particular, part 2 which states:
Sandwell's green and blue infrastructure networks, including open spaces, green spaces, nature conservation sites, parks and gardens (including registered parks and gardens), habitats, rivers, canals, other waterways, trees and green features, should be enhanced where possible (Policies SNE1 - SNE6, SHE1 – SHE4).
And also part 4 which requires major developments to be planned, designed and managed in an integrated way so that they deliver multiple climate change and environmental benefits over the liftime fo the development, making reference to flood risk policy SCC5.
