Planning permission – Enforcement notice – Planning control – Claimant challenging decisions dismissing appeals against refusal of planning permission and enforcement notice – Whether secretary of state failing adequately to address flood risk – Whether secretary of state addressing best interests of children – Whether secretary of state entitled to offer opinion on extension of compliance period for enforcement notice – Application granted – Appeal allowed
The claimant owned a former recreational chalet plot within a holiday estate within the metropolitan green belt and the Lee Valley Regional Park in Essex. The site was in an area designated as susceptible to the risk of flooding. The claimant cleared the site and, without obtaining the necessary planning permission, fenced it, lay hard standing and put two caravans on the site.
The second defendant local authority issued the claimant with an enforcement notice alleging a breach of planning control. The claimant appealed against the notice and prepared a flood risk assessment which concluded that the development would be unobjectionable on flood risk grounds. The Environment Agency confirmed that it would not object to the development on flood risk grounds provided certain conditions were met. In the face of that response, the second defendant withdrew the enforcement notice and invited the claimant to apply for planning permission. The application was refused for reasons which included the fact that proposed development was located in a flood plain.
Following the refusal of planning permission, the second defendant issued another enforcement notice. The claimant decided to appeal against that refusal and against the second enforcement notice. An inspector appointed by the fist defendant secretary of state recommended that the appeal against refusal of planning permission should be allowed to the extent that temporary permission should be granted for a period of four and a half years. Given that conclusion the inspector also recommended that the enforcement notice should be quashed. The first defendant rejected the inspector’s recommendations and dismissed the application and appeal. The claimant applied for an order under section 288 of the Town and Country Planning Act 1990, quashing the decision to refuse planning permission and appealed, pursuant to section 289 of the 1990 Act, against the decision to dismiss his appeal against the second enforcement notice.
The claimant contended that the decisions were wrong in that: (i) the first defendant’s approach to the issue of flood risk was fundamentally misconceived in that he had failed adequately and lawfully to address the potential harm from flooding and provides inadequate reasons for his conclusions: (ii) the first defendant had failed to address the best interests of the children living on the appeal site and the proportionality of refusing planning permission; and (iii) the first defendant had erred in agreeing with the recommendation of the inspector that the time for compliance with the enforcement notice should be extended to one year.
Held: The application was granted. The appeal was allowed.
(1) The first defendant’s conclusion that the inspector’s appraisal of the flood risk was flawed because he had failed to consider the sequential test was not justified. It was inconceivable that the inspector had not been aware of the test and had not considered its applicability. It was not surprising that the inspector had not referred to the test expressly in his report since its applicability had never been an issue at the inquiry.
In all the circumstances, the inspector had not undertaken an appropriate analysis of the whole of the evidence adduced before him on the issue of flood risk or reached conclusion upon it which were reasonably open to him in the light of the inspector’s own analysis and conclusions. The first respondent was not entitled to disagree with an inspector’s assessment of facts unless there was a sound evidential basis for doing so. On a careful reading of the decision letter, the first defendant’s conclusion on the issue of flood risk was unreasonable and/or failed to take account of material considerations, namely factual conclusions made by the inspector and his judgment based upon those conclusions: Coleen Properties Ltd v Minister of Housing and Local Government [1971] 1 All ER 1049; (1971) 218 EG 1163, Seddon Properties Ltd v Secretary of State for the Environment [1981] 42 P & CR 26 and Fox Land and Property Ltd v Secretary of State for Communities and Local Government [2014] EWHC 15 (Admin); [2014] PLSCS 37 considered.
There were a number of factors to be considered by the first respondent which were unrelated to flood risk but which had to be assessed in making his decision. However, the difficulty for the first respondent was that he had made it clear that his decision not to accept the inspector’s recommendations was dependant, at least in part, on the risk of flooding. In those circumstances, the court could not be satisfied that the first respondent’s decisions would necessarily have been the same had he concluded that there was no unacceptable flood risk. Accordingly the challenge on the first ground succeeded.
(2) The parties had agreed that it followed that the second ground would succeed if the first ground succeeded.
(3) It was no part of the inspector’s remit to draw attention to the possibility that the second respondent had the power to extend the time for compliance with the enforcement notice under section 173A of the 1990 Act although, in cases of this type, it was not uncommon for such references to be made. Furthermore, it was not for the first respondent to offer an opinion upon the desirability, or otherwise, of the second defendants invoking section 173A(1)(b) at the expiry of the period for compliance. That was a matter entirely for the second respondents.
Michael Rudd (instructed by Direct Access) appeared for the claimant; Stephen Whale (instructed by the Treasury Solicitor) appeared for the defendants.
Eileen O’Grady, barrister
Click here to read transcript: O’Connor v Secretary of State for Communities
