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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> O'Connor v Secretary of State for Communities and Local Government & Anor [2014] EWHC 3821 (Admin) (20 November 2014) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/3821.html Cite as: [2014] EWHC 3821 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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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 |
Claimant/ Appellant |
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- and - |
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1. SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT 2. EPPING FOREST DISTRICT COUNCIL |
Defendants/ Respondents |
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Stephen Whale (instructed by Treasury Solicitors) for the Defendants
Hearing date: 21 October 2014
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Crown Copyright ©
Mr Justice Wyn Williams:
"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."
Relevant History
"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."
"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.
Events at the Public Inquiry
"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 Inspector's Report to the First Respondent
- "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;
- 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."
"Flood Risk
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."
"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."
"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
"Flood Risk
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."
"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
"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."
Discussion
Ground One
"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."
Ground 2
Ground 3
"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."
"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."
Conclusion