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||Neutral Citation Number:  EWHC 3821 (Admin)
||Case No: CO/632/2014 and HQ14X00843
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||20th November 2014
B e f o r e :
MR JUSTICE WYN WILLIAMS
|| IN THE MATTER OF AN APPLICATION UNDER SECTION 288 OF THE TOWN AND COUNTRY PLANNING ACT 1990 AND AN APPLICATION FOR PERMISSION TO APPEAL UNDER SECTION 289 OF THE TOWN AND COUNTRY PLANNING ACT 1990 MILES O'CONNOR
||- and -
1. SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
2. EPPING FOREST DISTRICT COUNCIL
(Transcript of the Handed Down Judgment of
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Michael Rudd (instructed by The Bar Council Direct Access) for the Claimant
Stephen Whale (instructed by Treasury Solicitors) for the Defendants
Hearing date: 21 October 2014
HTML VERSION OF JUDGMENT
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Mr Justice Wyn Williams:
- I have before me two sets of proceedings. Pursuant to Section 288 of the Town and Country Planning Act 1990, (hereinafter referred to as "the Act" or the "1990 Act") Miles O'Connor applies for an order quashing the decision of the Secretary of State for Communities and Local Government made on 16 January 2014 whereby he dismissed Mr O'Connor's appeal against the refusal of Epping Forest District Council to grant planning permission for development of land in the ownership and/or occupation of Mr O'Connor and Mr William Cash at Sunnyside, Carthagena Estate, Nazeing in Essex. The District Council had refused planning permission on 23 May 2012 for a change of use of the area of land in question:
"for the stationing of caravans for residential purposes for two no. gypsy pitches together with a formation of additional hard standing..."
In the second set of proceedings Mr O'Connor appeals under section 289 of the Act against the decision of the Secretary of State to dismiss his appeal against an enforcement notice issued and served upon him by Epping Forest District Council. The Secretary of State dismissed the appeal on 16 January 2014 in the same decision letter in which he dismissed Mr O'Connor's planning appeal. The enforcement notice had been issued by the District Council on 1 August 2012 following the refusal of planning permission on 23 May 2012; the breach of planning control alleged was:
"without planning permission the use of the land for the stationing of caravans for residential purposes for two gypsy pitches together with the formation of hard standing, laying of paving slabs, and the erection of sheds."
- By order dated 4 April 2014 Mr C M G Ockleton, sitting as a Deputy Judge of the High Court, directed that the application for permission to appeal under section 289 of the 1990 Act and the substantive appeal should be heard as a rolled up hearing at the same time as the claim under Section 288 of the Act. I grant leave to appeal under section 289.
- For ease of reference, Mr O'Connor will be referred to as the Appellant, the Secretary of State for Communities and Local Government will be referred to as the First Respondent and Epping Forest District Council will be referred to as the Second Respondent. The area of land which is the subject of the proceedings will be referred to as the "appeal site".
- There are 3 grounds upon which the Appellant seeks to impugn the First Respondent's decision on the two appeals. Ground 1 relates to the First Respondent's appraisal of the risk of flooding upon the appeal site which, he concluded, was a material consideration of importance in determining the appeals. The Appellant complains that the First Respondent's approach to this issue was "fundamentally misconceived"; he failed adequately and lawfully to address the potential harm from flooding and he failed to provide adequate reasons for the conclusions which he reached. If ground 1 is made out, submits the Appellant, the First Respondent's decision on the two appeals cannot stand. Ground 2 alleges that the First Respondent's decision was unlawful because it did not address the best interests of the children living on the appeal site and it did not lawfully address the proportionality of refusing planning permission. At the hearing before me the parties agreed that this ground of challenge could succeed only if the challenge on ground 1 succeeded. The third ground of challenge raises a short point which I need not identify at this stage but I which I will consider discretely at the end of this judgment.
- The appeal site is a former recreational chalet plot within a holiday estate. It lies within the Metropolitan Green Belt and the Lee Valley Regional Park. In or about 2010 it was acquired by the Appellant and Mr Cash; thereafter they cleared the site and began to fence it and lay hard standing upon it. Additionally, at some stage, two caravans were positioned on the site.
- On 28 January 2011 the Second Respondent issued an enforcement notice in respect of the Appellant's activities. The enforcement notice alleged a breach of planning control in the following terms:
"Without planning permission the formation of a hard surface area and a stationing of caravans/mobile homes on the land and the use of the land for residential purposes."
- The whole of the area of land which was subject to the enforcement notice of 28 January 2011 was situated within an area which was designated as being susceptible to the risk of flooding. It was within a category known as Flood Zone 2 a phrase to which I will return later in this judgment.
- The Appellant appealed against the enforcement notice which had been issued. In preparation for the appeal the Appellant commissioned a flood risk assessment from Ambiental Technical Solutions Limited. The work was undertaken by Ms Emma Roberts. She produced a comprehensive written report dated February 2011. Miss Roberts concluded that the development which had been undertaken on site (and which was proposed to be undertaken) would be unobjectionable on grounds of flood risk if appropriate mitigating features were implemented. Following the preparation of her written risk assessment Ms Roberts received a consultation response from the Environment Agency. By letter dated 14 March 2011 a planning liaison officer employed by the Agency (Mr Joe Martyn) wrote confirming that the Agency would not object to the development undertaken on flood risk grounds provided certain conditions were met. One of those conditions was that the site boundary and the area of development should be restricted to the area of land which lay outside Flood Zone 3a.
- In the face of Ms Roberts' report and the consultation response from the Environment Agency the Second Respondent withdrew the enforcement notice. Further it invited the Appellant to make an application for planning permission.
- On 15 March 2012 the Appellant made a planning application. The development specified in the application was:
"Use of land for the stationing of caravans for residential purposes for two number gypsy pitches together with the formation of additional hard standing."
The land which was the subject of the application is the appeal site. It is common ground that the appeal site differs to some extent in its location from the land which was the subject of the earlier enforcement notice. Although most of the appeal site falls within Flood Zone 2, a small area of the site falls within Flood Zone 3a. On 23 May 2012 the Second Respondent refused the application for planning permission. One of the reasons given for the refusal was the fact that the proposed development was located in a Flood Zone.
- As I have said, following the refusal of planning permission the Second Respondent issued another enforcement notice. Meanwhile the Appellant had decided to appeal against the refusal of planning permission. In due course he launched an appeal against the second enforcement notice.
- Both appeals were considered together by an inspector duly appointed by the First Respondent. A public local inquiry was convened which opened on 23 April 2013. On that day no evidence was heard but the Inspector conducted a formal site visit. Thereafter, in July and August, the Inspector heard evidence. Originally, the First Respondent had authorised the Inspector to determine the appeals. However, on 1 October 2013 the First Defendant "recovered" the appeals for his own determination. In due course the Inspector sent a report to the First Defendant recommending how the appeals should be determined.
- The Inspector's recommendation was that the appeal against the refusal of planning permission should be allowed to the extent that a temporary permission should be granted for a period of 4½ years. Given that conclusion the Inspector also recommended that the enforcement notice should be quashed.
- The First Respondent did not accept the Inspector's recommendation. As I have said, in a decision letter dated 16 January 2014 the First Respondent dismissed the Appellant's appeals (although he extended the time period for compliance with the enforcement notice).
Events at the Public Inquiry
- In view of the points taken on behalf of the Claimant as they relate to ground 1 it is as well to record the sources of evidence available to the Inspector and the way in which the appeals unfolded.
- Four persons gave evidence in support of the appeals; they were the Appellant, Mr William Cash, Mrs Emma Jeffery (as Ms Roberts had now become) of Ambiental Technical Solutions Limited and Matthew Green of Green Planning Studio Limited. Two persons gave evidence on behalf of the local planning authority; they were Mr John de Wilton Preston and Mr Philip Hughes of PHD Chartered Town Planners.
- Mr Green, Mr Cash and the Appellant produced written proofs of evidence and were questioned about their contents. Mrs Jeffery did not produce a formal proof of evidence so far as I am aware. She produced a number of documents. They were (1) her comprehensive flood risk assessment undertaken when the first enforcement notice had been issued together with all supporting materials and (2) a letter dated 13 November 2012 and further documents relating to alleged land raising on the appeal site and consequent loss of flood storage space on and in the vicinity of the site. Mr Green's proof of evidence contained a specific section entitled "Flood Risk". In an addendum to his proof he also dealt, shortly, with the suggestion that land raising had taken place on or in the vicinity of the appeal site.
- The proof of evidence submitted by Mr Hughes, on behalf of the Second Respondent, contained a section on flood risk. Mr Hughes' view was that there were policy reasons which militated against the grant of planning permission by virtue of the fact that the appeal site lay within Zone 2 and Zone 3a.
- It should be noted, too, that the Inspector was provided with an email exchange between a planning officer employed by the Second Respondent and a planning liaison officer employed by the Environment Agency. The email from the Second Respondent was dated 29 November 2012 and asserted that significant land raising had taken place on the appeal site. The views of the Environment Agency were sought about flood risk on the basis that this assertion was accurate. However, the Environment Agency's response of 7 December 2012 did not deal with the point.
- There is evidence before me which suggests that both the Appellant and the Second Respondent had some expectation that the Environment Agency would produce evidence related to flood risk for presentation at the public inquiry. In particular, that expectation seems to have existed between the opening of the Inquiry in April 2013 and its resumption in July 2013. For whatever reason, no such evidence materialised.
- Both the principal parties at the inquiry were represented by counsel. Following the evidence counsel submitted their closing submissions in writing. Counsel for the Second Respondent concluded his submissions on the issue of flood risk with the following paragraph:-
"46. Flood risk is unquestionably a material planning consideration in the determination of this appeal and it is a matter for the Inspector to decide whether the proposals meet the Exception Test in the NPPF. Having regard to the evidence examined at the Inquiry, the Council does not contend that planning permission should be withheld on flood risk grounds subject to the imposition of appropriate planning conditions. "
- The thrust of counsel's closing submissions on behalf of the Second Respondent was that the grant of planning permission unrestricted in time (permanent planning permission) should not be granted on account of factors such as the appeal site being within the Green Belt. However counsel expressly conceded that it was proper for a temporary permission to be granted for a period of 4½ years.
The Inspector's Report to the First Respondent
- At paragraph 11 the Inspector identified the main issues arising on the appeals. They were:-
- "the impact of the development on the openness and visual amenity of the Green Belt and the purposes of including land within it;
- the impact on the character and appearance of the countryside;
- the impact of the development on the Lee Valley Regional Park.
- the flood risk implications of the development;
In summary the Inspector concluded that the harm to the Green Belt precluded the grant of permanent planning permission. However the grant of planning permission for a limited period of time - 4½ years - was justified.
- whether the harm to the Green Belt by reason of inappropriateness and any other harm, is clearly outweighed by other considerations, so as to amount to the very special circumstances necessary to justify a grant of planning permission, either permanent or temporary."
The Inspector dealt with the issue of risk of flooding as follows:-
19. The majority of the appeal site is within Flood Zone 2, but part is within Flood Zone 3a. All development proposals in Flood Zones 2 or 3a should be accompanied by a Flood Risk Assessment (FRA). Highly vulnerable uses of land, including caravans and mobile homes intended for permanent residential use, should not be permitted in Flood Zone 3a.
20. A FRA was submitted to the Council in respect of the development the subject of the 2011 Enforcement Notice. This was considered to be acceptable by the Environment Agency, who stated that they would not object to the development subject to certain criteria. Amongst these was a requirement that all development should be at least 8 metres from the top of bank of the River Lee Navigation and that the site boundary and area of development should be restricted to the area of land outside Flood Zone 3a.
21. There are important differences between the 2011 development and the current appeal development. The 2011 site included some LVRP land to the north of the current site and did not extend as far to the east as it now does. The entire 2011 land and the subject of the FRA was within Flood Zone 2, and it appears that considerable levelling works were carried out on the site before the topographic survey used in the FRA was undertaken. The levelling work themselves also involved a net importation of material onto the site, inevitably resulting in some land-raising. The 2011 scheme for which the FRA was prepared also involved only two touring caravans, whereas the appeal proposals include two touring caravans, two mobile homes and two utility sheds, with one of the mobile homes currently encroaching on part of the site zone as Flood Zone 3a.
22. Acknowledging that the development had not been implemented as envisaged in the 2011 FRA, the Appellant's flood risk consultants submitted an update for the purposes of this appeal in November 2012, and provided further evidence orally at the Inquiry. The modelled flood data provided showed that if the flood defences were operating as designed, the site and escape routes would be saved in the event of a 1:100 year flood event. The levelling of the site has had the practical effect of placing the part of the development in Flood Zone 3a at no greater risk of flooding than that in Flood Zone 2. Further there is no evidence that overall land-raising exceeded 0.5m, which would have a very small effect in terms of increasing flood levels in the relevant flood cell, estimated as a maximum of 5mm. Overall, the evidence demonstrates that, subject to additional precautionary measures such as caravan tethering, floor level restrictions and implementation of a formal flood warning and evacuation plan, there is a good probability that the development would be safe for its lifetime.
23. It is not possible to be unequivocal about this in the absence of details of undefended flood levels. However the Environment Agency's acceptance of the earlier scheme must have been made by reference to the undefended flood level data. Since the principal area of concern in this case, the part of the site in Flood Zone 3a, is topographically no lower than the Flood Zone 2 land, for whatever reason, I am prepared to conclude that the up-dated site-specific flood risk assessment satisfies the requirements of LP Policy U2A and this aspect of the Exception Test requirements set out in the NPPF. The Exception Test also requires the development to demonstrate that it provides wider sustainability benefits. I return to this point in the balancing exercise below."
At paragraph 30 of his report the Inspector recorded a concession which had been made by the Second Respondent to the effect that there were no lawful sites available within its district which could be used for the proposed development. The Inspector continued in that paragraph:-
"Further [the Second Respondent] accepts that it cannot demonstrate a 5-year supply of land to meet the need for further pitches. At present there is no land allocated for pitches, and the extent of Green Belt in the area means that there is difficulty in identifying suitable land. This also affects the likelihood of sufficient suitable private sites coming forward through the planning application process."
At paragraph 38 the Inspector began that section of his report in which he set out to evaluate the various conflicting interests for and against the grant of permanent or temporary planning permission. Within paragraph 38 itself he said:-
"In terms of flood risk, the need for, and lack of, gypsy and traveller sites satisfies the first part of the Exception Test, and hence, following my earlier conclusions, I consider that the development is not unacceptable from a flood risk perspective, subject to appropriate controls
The reference to "earlier conclusions" was obviously a reference to
his paragraphs 19 23 as set out above.
The First Respondent's decision letter
Essentially the First Respondent agreed with all the conclusions reached by the Inspector save for those relating to flood risk and whether or not it was appropriate to grant temporary planning permission. As to flood risk the Secretary of State said:-
12. The Secretary of State notes that the Inspector correctly says at IR19 that all development proposals in Flood Zones 2 and 3a should be accompanied by a Flood Risk Assessment (FRA), and that highly vulnerable uses of land including caravans and mobile homes intended for permanent residential use should not be permitted in Flood Zone 3a. The Inspector then goes on at IR21 to identify important differences between the 2011 scheme for the appeal site and the scheme currently before the Secretary of State, including the fact that the 2011 scheme was smaller and restricted to Flood Zone 2 whereas the current scheme encroaches onto part of the site zoned as Flood Zone 3a. The Secretary of State is therefore concerned that, not withstanding these differences, the Inspector concludes at IR22-23 that there is a good probability that the development would be safe for its lifetime and that the up-dated site-specific FRA undertaken by the appellant's consultants satisfies the requirements of LP Policy U2A.
13. The Secretary of State has seen no properly justified basis for departing from the Framework, which requires all development proposals in flood risk areas to first pass a Sequential Test and then, if appropriate, an Exception Test, as set out in the Technical Guidance. The Technical Guidance expects any highly vulnerable proposals in flood risk areas that pass the Sequential Test to also pass an Exception Test, but makes clear that such proposals are not appropriate in Flood Zone 3a. However, the Inspector makes no reference in the IR to any Sequential Test having been undertaken as the first stage of this approach. Nor did he question the fact that the appellants had not sought updated advice from the Environment Agency (EA). Hence, in the absence of any proper justification for the Inspector's conclusion, corroborated by the EA, the Secretary of State does not consider that it has been satisfactorily demonstrated that the proposal is appropriate or necessary and safe in its location, in accordance with the Framework and concludes that it would not be appropriate for him to grant planning consent for this proposal, and that it would not be in the best interests of the site occupants for them to remain there indefinitely."
Having set out those views, the First Respondent next concluded that there were no lawful alternative sites available within the district of the Second Respondent and, further, that the occupiers of the appeal site had "a longstanding need for a lawful site".
At paragraph 16 and 17 the First Respondent conducted his own "balancing exercise". He wrote:-
"For the reasons given at IR38, the Secretary of State agrees with the Inspector that the harm to the GB by reason of the inappropriate nature of the development is a factor to which substantial weight must be given, as must the harm in terms of openness and conflict with the purposes of the GB. Like the Inspector, the Secretary of State also gives some weight to the harm to the character of the locality and to proposals for the enhancement of the Lee Valley Park. Additionally, the Secretary of State gives substantial weight to the potential harm to the site occupiers from the flood risk. Overall, therefore, the Secretary of State agrees with the Inspector that the factors in favour of the appeal scheme summarised at IR39, whether considered individually or cumulatively are not sufficient to clearly outweigh the overall harm identified and the conflict with local and national policies so that the very special circumstances necessary to justify the granting of permanent planning permission do not exist.
17. The Secretary of State has gone on to consider the Inspector's arguments in favour of granting temporary planning permission for a period of 4½ years, made personal to the present occupiers, as set out at IR40-42. However, he considers that 4½ years represents a considerable length of time, and he disagrees with the Inspector's conclusion that the overall harm caused by granting a temporary consent for such a prolonged period of time would be clearly outweighed by the other considerations advanced in favour of the development. In particular, he considers that the harm to the GB would be considerable and he adds to that the exposure of the site occupants, including the 10 children, to flooding risk. The Secretary of State has taken account of the consequences of the decision to refuse planning permission and uphold the enforcement notice, as set out at IR36-37, but he does not consider that this tips the balance in favour of permission. "
Planning Policy Relating to Flood Risk
For the purpose of these proceedings the relevant policy is contained within two documents, namely the National Planning Policy Framework (NPPF) and the Technical Guidance to NPPF. Paragraphs 100 to 102 of NPPF read:
"100. Inappropriate development in areas at risk of flooding should be avoided by directing the development away from areas at highest risk, but where development is necessary, making it safe without increasing flood risk elsewhere. Local Plans should be supported by Strategic Flood Risk Assessment and develop policies to manage flood risk from all sources, taking account of advice from the Environment Agency and other relevant flood risk management bodies, such as lead local flood authorities and internal drainage boards. Local Plans should apply a sequential, risk-based approach to the location of development to avoid where possible flood risk to people and property and manage any residual risk, taking account of the impacts of climate change, by:
- applying the Sequential Test;
- if necessary, applying the Exception Test;
- safeguarding land from development that is required for current and future flood management;
- using opportunities offered by new development to reduce the causes and impacts of flooding; and
- where climate change is expected to increase flood risk so that some existing development may not be sustainable in the long-term, seeking opportunities to facilitate the relocation of development, including housing, to more sustainable locations.
101. The aim of the Sequential Test is to steer new development to areas with the lowest probability of flooding. Development should not be allocated or permitted if there are reasonably available sites appropriate for the proposed development in areas with a lower probability of flooding.
102. If, following application of the Sequential Test, it is not possible, consistent with wider sustainability objectives, for the development to be located in zones with a lower probability of flooding, the Exception Test can be applied if appropriate. For the Exception Test to be passed:
- it must be demonstrated that the development provides wider sustainability benefits to the community that outweigh flood risk, informed by a Strategic Flood Risk Assessment where one has been prepared; and
- a site-specific flood risk assessment must demonstrate that the development will be safe for its lifetime taking account of the vulnerability of its users, without increasing flood risk elsewhere, and, where possible, will reduce flood risk overall.
Both elements of the test will have to be passed for development to be allocated or permitted."
The Technical Guidance sets out the criteria to be used when deciding how land should be zoned in terms of flood risk. Land within Zone 1 has a low probability of flooding which is defined as being land assessed as having a less than 1 in 1000 annual probability of river or sea flooding. Zone 2 is categorised as having a medium probability of flooding. That is defined to mean land assessed as having between 1 in 100 and 1 in 1000 annual probability of river flooding or between 1 in 200 and 1 in 1000 annual probability of sea flooding in any year. Land within Zone 3a has a high probability of flooding. This zone includes land assessed as having 1 in 100 or greater annual probability of river flooding or 1 in 200 or greater annual probability of flooding from the sea. Zone 3b comprises land where water has to flow or be stored in times of flood.
The Technical Guidance specifies that appropriate uses of land within Zone 3a are: "the water-compatible and less vulnerable uses of land." It also specifies that highly vulnerable uses should not be permitted in this zone. Highly vulnerable uses, within the Guidance, include "caravans, mobile homes and park homes intended for residential use". Appropriate uses within Zone 2 are "essential infrastructure and the water-compatible, less vulnerable and more vulnerable uses, as set out in table 2". Highly vulnerable uses are only appropriate in this Zone if the Exception Test is passed and all development proposals for Zone 2 should be accompanied by a flood risk assessment.
Mr Rudd, for the Appellant, submits that the First Respondent made a number of material errors of law in his consideration of the risk of flooding at the appeal site. First, it is submitted that the First Respondent failed to have regard to evidence and submissions advanced on behalf of the Appellant in relation to the Sequential Test. Second, Mr Rudd submits that the First Respondent erred in law by suggesting that there was a requirement upon the Appellant to provide "corroboration" from the Environment Agency as to its view of the flood risk upon the appeal site. Mr Rudd submits, additionally, in this context that the First Respondent appeared to suggest that the Inspector himself required such corroborative evidence which would, submits Mr Rudd, be equally erroneous in law. Third, Mr Rudd submits that the First Respondent's conclusion as to flood risk on the appeal site was one which no reasonable Secretary of State could have reached on the material available. Fourth, Mr Rudd argues that the First Respondent provided no or no adequate reasons for departing from the conclusions reached by the Inspector on the issue of flood risk. I deal with each of these points in turn.
On a fair reading of the First Respondent's decision letter there can be little doubt that he considered that the Inspector's appraisal of the risk of flooding on the appeal site was flawed because he had failed to consider the Sequential Test as part of his overall appraisal of the flooding issue. In my judgment that is the clear conclusion to be dawn from the words used by the First Respondent - see paragraph 13 of his decision letter quoted at paragraph 28 above.
Was such a view on the part of the First Respondent justified? I do not consider that it was. It is true that the Inspector made no express reference to the Sequential Test in the course of his report of recommendation. However, it seems to me to be inconceivable that the Inspector was not aware of the test and did not consider its applicability in this case. It is not at all surprising that the Inspector did not refer to the test expressly in his report. Its applicability had never been an issue at the inquiry. The Second Respondent conceded, without equivocation and expressly, that there was no lawful available site within its district upon which the development under consideration could take place and, further, that it was unable to demonstrate a 5 year supply of land to meet the need for development of the type in question. All this was recorded in the Inspector's report see paragraph 26 above. In the context of this case, therefore, no useful purpose was to be served by an express reference to the Sequential Test in the Inspector's report since it was inevitable that it was met. This must have been the Inspector's state of mind. While Mr Whale did not concede as much expressly he was unable to advance any cogent basis for taking a different view.
Having reflected upon the phraseology of paragraph 13 of the First Respondent's decision letter (see paragraph 28 above) I am not persuaded that he was attempting to lay down some proposition of law to the effect that in the absence of corroborative evidence from the Environment Agency it was not open to the First Respondent (or for that matter the Inspector) to be satisfied that there was no proper objection to the proposed development on flood risk grounds and/or there was some kind of legal obligation upon the Appellant to produce such evidence. In my judgment all that the First Respondent was attempting to convey in paragraph 13 of his letter was that the absence of an up to date assessment from the Environment Agency impacted upon the weight to be attached to the evidence of Mrs Jeffery and the recommendation of the Inspector. In my judgment such an approach, in itself, is unimpeachable. However, as it seems to me, the real issue is not whether the First Respondent applied some erroneous legal test in relation to the absence of an up-to-date assessment from the Environment Agency but rather whether or not he undertook an appropriate analysis of the whole of the evidence adduced before him on the issue of flood risk and reached conclusions upon it which were reasonably open to him in the light of the Inspector's own analysis and conclusions. It is to that issue that I now turn.
The Inspector reached the following conclusions about the issue of flood risk. First, as a matter of designation, the greater part of the appeal site lay within Flood Zone 2; the remainder lay within Flood Zone 3. Second, a formal risk assessment had been submitted to the Second Respondent in respect of the area of land which was the subject of the enforcement notice issued in 2011. On the basis of that Flood Risk Assessment the Environment Agency did not object to the development which was the subject of that enforcement notice. The evidence adduced before him at the Inquiry constituted an "up-dated site-specific Flood Risk Assessment." Third, considerable levelling works were carried out on the site before the topographic survey which was undertaken for the Flood Risk Assessment. Those levelling works involved the net importation of material onto the appeal site with the consequence that there was some land-raising on the appeal site. Fourth, the levelling of the site had the practical effect of placing that part of the development which was in the Flood Zone 3a designation at no greater risk of flooding than the area of land within Flood Zone 2. Fifth, subject to additional appropriate precautionary measures being taken there was a good probability that the development would be safe for its lifetime.
The Inspector reached these conclusions on the basis of the Flood Risk Assessment undertaken in 2011, the written material produced by Mrs Jeffery subsequently, her oral evidence at the Inquiry and, no doubt, from his own observations at his site inspection.
Having concluded that the flood risk for the whole of the appeal site was properly to be equated to the risk appropriate for an area of land within Flood Zone 2 the Inspector next applied the Exception Test. He did that, expressly, in paragraph 23 of his letter of recommendation and again in paragraph 38. Having applied the Exception Test the Inspector concluded that the development proposed for the appeal site was "not unacceptable from a flood risk perspective, subject to appropriate control" see paragraph 38 of the Inspector's letter.
None of the conclusions reached by the Inspector as set out above was in any sense controversial by the time all the evidence had been heard at the public inquiry. Further, the Second Respondent accepted that an objection to the Appellant's proposed use of the appeal site could not be sustained on the grounds of flood risk.
In the main, the Inspector's conclusions as summarised above were conclusions about relevant facts and/or judgments based upon the facts. Insofar as the Inspector was exercising a judgment it was not a judgment about planning policy or planning merits but rather it was the exercise of a judgment about the likelihood of flooding occurring. The Inspector's conclusion that the whole of the appeal site was to be treated as being within Zone 2 was a judgment based upon a substantial body of evidence about the relevant characteristics of the land in question; it involved no interpretation of planning policy or judgment about the planning merit of the development proposal. The only part of the Inspector's assessment which involved an exercise of planning judgment was his assessment that the Exception Test was passed.
It is now well established that the First Respondent is not entitled to disagree with an Inspector's assessment of facts unless there is a sound evidential basis for so doing see paragraph 26 of the judgment of Blake J in Fox Land and Property Limited v- Secretary of State for Communities and Local Government and Another  EWHC 15 (Admin). In reaching that conclusion the learned judge relied upon the judgments of Lord Denning MR and Sachs LJ in Coleen Properties Limited v- Minister of Housing and Local Government  1 All ER 1049 see the passages cited in paragraph 26 of the judgment of Blake J. In Seddon Properties Limited and Another v- Secretary of State for the Environment and Another  42 P&CR 26 or  JPL 835 Forbes J took the same approach. Further he concluded that if the Minister did take a different view from that of an Inspector on issues of fact where there was no sound evidential base for so doing the Minister would be susceptible to challenge under what I shall call for short hand the Wednesbury principle.-
"The Secretary of State must not act perversely. That is, if the court considers that no reasonable person in the position of the Secretary of State, properly directing himself on the relevant material, could have reached the conclusion that he did reach, the decision may be overturned."
What was the basis upon which the First Respondent took a different view of the flood risk from his Inspector? I have set out the relevant parts of the decision letter of the First Respondent at paragraph 28 above. The basis for the First Respondent's difference of view appears to be confined to the Inspector's alleged failure to take account of the Sequential Test and the absence of an up to date assessment by the Environment Agency although I accept that these features were highlighted in the context of the First Respondent treating part of the appeal site as being within Zone 3a.
As I have said already, the First Respondent's conclusion that the Inspector had failed to take account of the Sequential Test does not stand scrutiny. Further and probably even more importantly, it appears to me that the First Respondent has failed to take any account of the Inspector's factual conclusions and judgment about flood risk at the appeal site. There is nothing in the decision letter which explains why the First Respondent does not accept that the whole of the appeal site should be treated as being within Zone 2. The First Respondent appears to do no more than recite that as a matter of designation part of the land is within Zone 3a.
In my judgment the conclusion reached by the First Respondent about the flood risk on the appeal site was unreasonable and/ or it failed to take account of material considerations namely the factual conclusions made by the Inspector and his judgment based upon those factual conclusions.
Having considered the language of the decision letter with some care and remembering that the First Respondent is giving his reasons for a decision rather than drafting a statute or code nonetheless I conclude that the decision reached by the First Respondent about flood risk was not reasonably open to him on the whole of the available material.
I can deal with the Appellant's points about adequacy of reasons quite shortly. In my judgment there is no lack of clarity of reasoning on the part of the First Respondent. The reader of his decision letter can readily ascertain why it was that the First Respondent made the decision that he did on the issue of flood risk. That said it is the reasoning deployed by the First Respondent which has demonstrated his unlawful approach as described in the preceding paragraphs.
It does not necessarily follow from what I have said thus far, of course, that the First Respondent's decision to dismiss the Appellant's appeal against the refusal of planning permission and to uphold the enforcement notice cannot stand. There were a number of factors to be considered by the First Respondent which were unrelated to the issue of flood risk but which had to be assessed in making his decision. The difficulty for the First Respondent, however, is that he makes it clear that his decision not to accept the recommendation of his Inspector is dependant, at least in part, on his conclusion that the occupants of the appeal site would be exposed to an unacceptable flood risk see paragraph 17 of the decision letter. In those circumstances I cannot be satisfied that the First Respondent's decisions on the appeals would have been the same, necessarily, had he concluded that there was no unacceptable flood risk at the appeal site or more accurately that the risk of flooding was that which was in the range for a site designated as Zone 2 and that there were measures available to ensure that the risk was no greater than that.
I have reached the conclusion that the challenge on ground 1 succeeds.
As I have said, the parties agree that Ground 2 succeeds if Ground 1 succeeds. For that matter they agree, too, that Ground 2 must fail in the event that Ground 1 fails. Given this agreement no useful purpose would be served by a detailed discussion of this ground of challenge.
The enforcement notice specified that the Appellant should comply with the terms of the notice within six months of the date of its issue. In the enforcement notice appeal the Appellant suggested that a compliance period of two years was proportionate and reasonable. The Inspector did not accept that suggestion but recommended that if the First Respondent was not minded to grant either permanent or temporary planning permission the time for compliance with the enforcement notice should be extended to one year. That was justified, according to the Inspector, so as to permit the occupiers of the appeal site to look for alternative accommodation. Having expressed these views the Inspector then continued:-
"If the occupiers have been unable to find a suitable alternative site in that time, the council has the power under section 173A(1)(b) of the 1990 Act to extend the compliance period without prejudicing its right to take further action. This would enable the council to fully consider the Human Rights Act and the Public Sector Equality Duty implications at that time."
Strictly 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 is not uncommon for such references to be made.
In his decision letter the First Respondent agreed with the recommendation of the Inspector that time for compliance with the enforcement notice should be extended to one year. Having set out that conclusion the First Respondent continued:-
"The Secretary of State does not, however, agree with the Inspector's argument in the remainder of IR 46 with regard to the potential exercise by the council of its power under section 173A (1)(b) of the Town and Country Planning Act 1990 to extend the compliance period without prejudicing its right to take further action. Not only would this extend the period during which the occupants would be exposed to flooding risk, but the Secretary of State takes the view that the local planning authority's discretion would not be a reliable element to the decision, would potentially be contrary to the principle of certainty and effectiveness in European law and would be a weak foundation for undertaking the balance required under Article 8 of the European Convention on Human Rights."
In my judgment, it was not for the First Respondent to offer an opinion (since that was all it could be) upon the desirability or otherwise of the Second Respondent invoking Section 173A(1)(b) of the 1990 Act at the expiry of the period for compliance with the enforcement notice. Whether or not to invoke that section of the 1990 Act was a matter entirely for the Second Respondent. It is unnecessary to say any more about this ground of challenge.
The First Respondent's decisions to dismiss the appeal against the refusal of planning permission and to uphold the enforcement notice (subject to extending the period for compliance therewith) were tainted by illegality for the reasons I have given. I invite the parties to agree the appropriate form of relief to be granted in respect of each decision.
I propose to hand down this judgment at 11.45am on Thursday 20 November 2014. If the Parties agree an appropriate form of order in relation to relief and costs and the First Respondent does not wish to seek my permission to appeal then there need be no attendance at the hearing. If there are issues relating to the appropriate form of order and/or costs and/or there is an application for permission to appeal I will hear short oral submissions at the handing down of the judgment.
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