Cash v Secretary of State for Communities and Local Government & Anor

Judicial review of a planning inspector’s decision is concerned with legality, not a rehearing of planning merits. The court must guard against challenges being used to rerun the merits, and an expert decision-maker’s conclusion is difficult to impugn as Wednesbury unreasonable. An enforcement notice must be served in the manner required by statute. However, defective service may be disregarded where neither the appellant nor the person requiring service has suffered substantial prejudice. Temporary planning permission depends on the character of the proposed development and whether a trial run is needed; a proposal for temporary permission alone is insufficient. The assessment of planning harm, mitigation, housing need and the viability of conditions is principally a matter of planning judgment.

The claimant developed woodland land by creating hard standings, installing services and utilities, placing mobile homes on the site and erecting a fence. Wokingham Borough Council served two enforcement notices and refused a retrospective planning application. The Secretary of State’s inspector dismissed all three appeals, while varying the enforcement notices by extending the compliance period.

The claimant sought to quash the planning decision under Town and Country Planning Act 1990, section 288, and sought permission to appeal against the enforcement decisions under section 289. The issues included service of the second enforcement notice, flood-risk and ecological assessment, temporary permission, housing need and removal of the fence.

1. Outcome. The applications under sections 288 and 289 were dismissed. The service of the second enforcement notice was defective because the notices were not addressed on their face to the occupiers as required by section 329(2). That error did not affect the overall result.
2. Under section 176(5), the Secretary of State could disregard the defective service because the evidence supported the inspector’s conclusion that neither the claimant nor the occupiers had suffered substantial prejudice. The occupiers knew of the enforcement proceedings, the inquiry was advertised, several occupiers attended and no occupier complained of prejudice.
3. The inspector was entitled to exclude late evidence concerning alternative flood-compensation areas. The arrangements for post-inquiry evidence were limited, and admitting new proposals would have prejudiced the other parties. He was entitled to conclude that loss of flood-plain storage, without acceptable compensation, increased flood risk and conflicted with Core Strategy Policy CP1(9).
4. Flood-risk and ecological harm were interlinked. The inspector was entitled to consider their combined effect and did not unlawfully double count them. His conclusions on mitigation and habitat were matters of planning judgment.
5. Temporary permission was not required merely because it had been proposed. The inspector had to decide whether the development was genuinely capable of being treated as temporary or required a trial run. The mobile homes’ concrete foundations, services, leases, fencing and suburban character supported his conclusion that it was not.
6. The inspector was entitled to treat the rents as market rents, reject the claim that the development provided intermediate affordable housing, and conclude that a housing-list condition was not viable. The applications therefore failed.

Not stated in the judgment.