Miles Connors v Secretary of State for Housing, Communities and Local Government & Anor

An application for permission to appeal under Town and Country Planning Act 1990, section 289, must comply with the procedural requirements of Practice Direction 54D. Those requirements are substantive conditions for bringing the application, rather than mere formalities. Where the application is invalidly made and no proper application for an extension or relief from sanctions is advanced, the court has nothing to determine.

On the merits, an inspector is entitled to assess flood risk by considering all relevant evidence, including surface-water flood maps, and need not treat an Environment Agency flood-zone map as determinative. The sequential test concerns flooding from any source. A disagreement with the inspector’s planning judgment does not establish an arguable error of law.

The applicant sought permission under section 289 of the Town and Country Planning Act 1990 to appeal the Secretary of State’s decision dated 10 December 2024. The inspector had upheld an enforcement notice issued by Milton Keynes City Council concerning the use of a former horticultural nursery for mobile homes and caravans, associated hardstanding, fencing, drainage and lighting. The inspector removed the alleged hedgerow breach and extended the compliance period from three to nine months.

The application was lodged after alleged failures to comply with Practice Direction 54D, including failures concerning witness statements and service. The proposed grounds concerned procedural compliance, flood risk, the sequential and exception tests, the compliance period, hedgerow removal and protected species.

1. Procedural validity. The application was not properly brought. It failed to comply with Practice Direction 54D, including the requirements to serve and file compliant witness statements and to provide a proper witness statement of service. The procedural requirements were not mere formalities. In the absence of a valid application, there was no application before the court for determination.
2. Extension of time and relief. The explanation that the witness statements were delayed by the Christmas holiday period was inadequate. No proper application for relief from sanctions had been made. Any application for an extension of time should have complied with the applicable procedural requirements and the approach in Denton v TH White [2014] EWCA Civ 906 and R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633.
3. Flooding grounds. Even if the application had been valid, none of the flooding grounds was arguable. The inspector was entitled to prefer current surface-water flood evidence over the Flood Map for Planning, to consider evidence of actual flooding, and to give limited weight to the applicant’s evidence because of its deficiencies. The sequential test applies to flood risk from any source. The parties had not agreed that the sequential test was passed. The inspector was entitled to conclude that the site was in Flood Zone 3a/b, that the sequential test was not met and, alternatively, that the exception test would not have been met.
4. Other grounds. The hedgerow ground was unarguable because the inspector had removed the hedgerow matter as a breach of planning control and had properly considered biodiversity loss. The protected-species ground was also unarguable: the inspector had identified deficiencies in the evidence concerning great crested newts and bats, including the absence of field surveys and adequate assessment of external lighting.
5. Permission to appeal was refused. The court held that the appeal had not been brought in accordance with Practice Direction 54D and could not succeed in any event.

• Inspector appointed by the Secretary of State: On 10 December 2024, the enforcement notice was upheld, subject to removal of the hedgerow allegation and extension of the compliance period from three to nine months.
• High Court (Administrative Court): Permission to appeal under section 289 of the Town and Country Planning Act 1990 was refused. The application was procedurally invalid and, alternatively, disclosed no arguable point of law.