O'Connor v Secretary of State for Communities and Local Government & Anor

A planning decision-maker may disagree with an inspector’s findings of fact only where there is a sound evidential basis. Ignoring material factual findings, or adopting an unreasonable approach to flood-risk evidence, renders the decision unlawful. A local planning authority’s discretion to extend an enforcement-notice compliance period belongs to that authority.

The claimant challenged the Secretary of State’s decision dismissing his planning appeal and upholding an enforcement notice concerning residential gypsy pitches and associated works. The challenges were brought under sections 288 and 289 of the Town and Country Planning Act 1990. The central issue was whether the Secretary of State had lawfully assessed flood risk when departing from the inspector’s recommendation for temporary planning permission. A further issue concerned the power under section 173A(1)(b).

1. Ground 1 succeeded. The Secretary of State wrongly concluded that the inspector had failed to apply the Sequential Test. The inquiry evidence showed that no lawful alternative site was available and that the Council lacked a five-year supply of sites.
2. The inspector had found that most of the site was in Flood Zone 2, that levelling affected the relative risk, and that precautionary measures could make the development safe. The Secretary of State failed to engage with those findings and relied instead on the formal designation of part of the site as Flood Zone 3a. His conclusion was unreasonable and failed to take account of material considerations.
3. The principle identified in Fox Land and Property Limited v Secretary of State for Communities and Local Government and Another [2014] EWHC 15 (Admin), supported by Coleen Properties Limited v Minister of Housing and Local Government [1971] 1 All ER 1049 and Seddon Properties Limited and Another v Secretary of State for the Environment and Another [1981] 42 P&CR 26, was applied.
4. Ground 2 succeeded by agreement because flood risk materially affected the refusal of both permanent and temporary permission.
5. The power under section 173A(1)(b) of the Town and Country Planning Act 1990 was a matter for the local planning authority. The Secretary of State should not have expressed an opinion on its future exercise.

The judgment records no prior judicial decision in the same proceedings. It concerns a claim under section 288 and an appeal under section 289 of the Town and Country Planning Act 1990 against the Secretary of State’s decision dated 16 January 2014.