De Souza v Secretary of State for Communities and Local Government & Anor

A challenge to a decision on a ground (a) enforcement notice appeal lies under section 289 of the Town and Country Planning Act 1990, not section 288, where planning permission has been refused. The deemed planning application under section 177(5) concerns the matters alleged in the enforcement notice as constituting the breach. An asserted permission for part of the site is therefore irrelevant where the alleged breach extends across the whole site. Whether local plan policies are inconsistent with the National Planning Policy Framework may involve evaluative planning judgment, particularly in the context of the development concerned. A flood risk objection may be raised on a ground (a) appeal, and permission may properly be refused where no satisfactory flood risk assessment establishes that the risk can be addressed.

Test Valley Borough Council issued an enforcement notice concerning the unauthorised use of countryside land for open storage and the siting of storage containers. Following a public inquiry, the Inspector dismissed the statutory appeals, amended the notice, and refused the deemed planning application.

Gilbart J refused permission to appeal on certain grounds but directed that the ground (a) challenge be listed as a section 288 application. The claimant challenged the Inspector’s refusal of planning permission, arguing that an existing permission covered part of the site, that the enforcement notice had limited scope, that the local plan conflicted with the National Planning Policy Framework, and that flood risk could be addressed by condition.

1. Jurisdiction. The court treated the hearing as an adjourned application for permission to appeal. A challenge to refusal of a ground (a) appeal and to refusal of the deemed planning application fell under section 289 of the Town and Country Planning Act 1990. Section 288 did not apply because section 284(3)(e) concerned decisions granting, not refusing, planning permission. Gilbart J had no jurisdiction to direct a section 288 hearing.
2. Existing permission. The ground (a) appeal and deemed application related to the breach alleged across the whole red-line enforcement site. Since the ground (c) challenge had failed, the premise was that the use of any part of that site constituted a breach. An alleged permission for open storage on part of the land was therefore irrelevant to the ground (a) assessment.
3. Planning policies. The Inspector had considered the limited physical scope of the notice and the site’s relative inconspicuousness. Differences in wording did not establish inconsistency between policy SET 03 and the National Planning Policy Framework. Consistency could depend on evaluation of the policies’ objectives in relation to the particular development. That was a matter for the Inspector’s reasonable planning judgment, and no error of law was shown.
4. Flood risk. The site was in Flood Zone 3. The Inspector was entitled to treat the Environment Agency’s dissatisfaction with the flood risk assessment as showing that there was no certainty that the development would comply with the applicable policies. A condition could not be assumed to resolve the problem where a satisfactory assessment and mitigation had not been demonstrated. The proposed condition was not a Grampian condition, since it would permit continuation of the use pending possible later enforcement.
5. The claimant had produced no adequate evidence supporting the alleged procedural unfairness. The Inspector’s decision would in any event have been the same without the residential amenity issue. None of the grounds was arguable, and permission to appeal was refused.

High Court (Administrative Court): Gilbart J refused permission to appeal on grounds (c), (d) and (g), and directed that the ground (a) challenge be listed as a section 288 application. Permission to appeal to the Court of Appeal was refused on jurisdictional grounds in line with Walsall Metropolitan Borough Council v Secretary of State for Communities and Local Government [2013] EWCA Civ 370.

High Court (Administrative Court): Ouseley J held that the matter fell within section 289, not section 288, treated the hearing as an adjourned permission application, and refused permission to appeal.