Teresa Casey & Anor v Secretary of State for Housing, Communities and Local Government & Anor

HHJ JARMAN KC: Introduction

1. The claimants apply for statutory review of the decision dated 14 February 2024 of a planning inspector appointed by the first defendant, the Secretary of State, dismissing an appeal under section 78 of the Town and Country Planning Act 1990 . The appeal was against the refusal of the second defendant, as local planning authority (the Authority), to grant planning permission for a change of use of a site at Greenacres, Radford Road, Crawley to that of a Gipsy/Traveller site for pitches for six caravans, two static and two touring, with associated operational development.

2. The grounds on which the review proceeds, as granted by Eyre J, may be summarised as: i) The inspector’s risk assessment of flooding was fundamentally flawed because of her mistaken finding that the four touring caravans would be partially sited in Flood Zone 2, whereas the statement of common ground between the parties recorded that the caravans are sited on hard standings to the north of the site outside Flood Zone 2 and in the lower flood risk area Flood Zone 1. ii) The inspector’s conclusions as to the risk to residents from flooding was irrational having regard to the siting of the caravans and without considering the exception test. The conclusions were that given the site lies partly in Flood Zone 2 and at risk of reservoir flooding, the scheme constitutes highly vulnerable development, and there are children and older people on site, substantial weight should be given to the harm associated with flood risk. That would not be reduced by a temporary permission as a severe flooding event could occur at any time. The inspector also concluded that the consideration of alternative sites should have formed part of a sequential testing process, and as there was an absence of evidence in this regard, moderate weight was given to the lack of suitable and available alternative sites.

3. Each of these grounds is resisted by each of the defendants. Background

4. A statement of common ground was put before the inspector, apparently drafted by the Authority, which said this at [6.7] “The site is partly within Flood Zone 2 due to its proximity of Gatwick Stream. Residential development is highly vulnerable and caravans are particularly vulnerable. The caravans are sited within Flood Zone 1 on hardstanding to the north of the site outside of the Flood Zone 2. The caravans are therefore outside the medium flood risk area and a condition could be applied to secure a flood warning and evacuation plan to make the occupation of the site safer for occupants from flood risk.”

5. The inspector did not refer to this in her decision letter (DL). Instead she said the following at DL39, 73 and 74. “39.The appellants have carried out a site-specific Flood Risk Assessment for Planning (Ref: 90552-RadfordRd-Prideaux, April 2021). This states that the appellants will follow the sequential approach to site layout where practically possible and site the two static caravans outside of Flood Zone 2 and wholly within Flood Zone 1. It confirms that four touring caravans will be partially located within Flood Zone 2. However, the appellants’ Flood Risk Assessment makes little attempt to carry out the sequential test itself. …

73. There would be modest harm to the character and appearance of the area. This has only moderate weight as the land could be returned to its previous state after temporary permission has lapsed. The matter of intentional unauthorised development has no more than moderate weight, given that the appellants have sought to obtain planning permission to regularise the scheme and the appellants may not have had access to other safe places to live. Given that the site lies partly in Flood Zone 2 and is at risk of reservoir flooding, the scheme constitutes highly vulnerable development, and there are both children and older adults on site, I consider substantial weight should be given to the harm associated with flood risk. This would not be reduced by a temporary permission as a severe flooding event could occur at any time.

74. It is not possible to grant a permanent permission given the need to safeguard Gatwick Airport’s scope to expand and the associated effects of this expansion on the site both in terms of use and noise, in addition to the flood risk issue. However, it would also not be suitable or proportionate to allow either a temporary or a personal permission, as either option would potentially place the lives, property and livelihoods of the extended family group at risk due to flood risk. A non-temporary personal permission would also not be appropriate given the need to safeguard airport expansion.”

6. To gain some understanding how the inspector may have come to this finding, despite the statement of common ground, reference will need to be made to some of the troubled planning history of the site. The caravans were moved onto the site in April 2021 and hard standings, amenity blocks, sheds, kennels and fencing were built, all without planning permission. The Authority served an enforcement notice some days later, which was appealed. The appeal was dismissed and the notice took effect in August 2022.

7. The claimants also made an application for the necessary planning permission in August 2021 which was refused but granted on appeal by a previous inspector by a decision letter dated 9 December 2022. The flood risk assessment referred to by the present inspector was obtained by the claimants for that appeal. The previous inspector granted permission for a temporary period of three years. She found that the caravans and structures were on land outside of the medium flood risk area, and that a condition could be imposed to secure the submission and approval of a flood warning and evacuation plan. That was necessary because access to and from the site runs through Flood Zone 2. Such a condition was imposed. Condition 1 required that the development should be carried out in accordance with specified approved plans, including a site layout plan dated 20 October 2022. That showed changes which the claimants undertook in response to the Authority’s concerns about flood risk, including the removal of any hard standing in Flood Zone 2.

8. However that decision was quashed by the High Court and remitted for redetermination and that is how the present inspector came to consider the matter. It was not suggested before me that the reasons for quashing the previous decision, which were not put before me, are relevant to my determination.

9. In the run up to the redetermination, the present inspector through the Planning Inspectorate asked the claimants’ planning consultant for comments on various matters, including on relevant plans. In reply dated 8 January 2024, the consultant referred to the amended plan dated 22 October 2022 “as per condition 1 of the 2022 appeal decision.” By an email dated 18 January 2024, the Inspectorate informed the consultant that the present inspector thought that there may be missing a plan “which was revised at some point.” The email continued that this may have been misfiled but requested for ease that the plan “as revised on 20 October 2022” be provided as a matter of urgency. By return the consultant replied attaching “Amended site plan.” That plan did not show the demarcation between the two flood zones affecting the site, but it did show the two southerly touring caravan slightly further north as compared to the original layout plan. It also showed the southern boundaries of the areas of hard standing, or pitches as they were marked on both plans, as further north than on the original layout plan. Broadly, Flood Zone 1 covers the north part of the site, and Flood Zone 2 covers the southern part.

10. No overlay was before the inspector, and such an exercise was not carried out until these review proceeding when the Authority’s principal planning officer, Marc Robinson, exhibited an overlay in a witness statement dated 18 June 2025. He observed that the layout plans do not line up with Ordnance Survey data, but that does not affect the overlay for present purposes, which show all caravans in Flood Zone 1.

11. Without such an overlay, it may be that the inspector believed that the two southerly caravans were or would be located in Flood Zone 2, but that does not explain her failure to have regard to or make reference to [6.7] of the statement of common ground. Policy

12. National flood policy at the time of the hearing before the inspector was set out in the National Planning Policy Framework (NPPF) and Planning Policy Guidance (PPG). NPPF [165] provided that development be directed away from areas of highest flood risk, and at [168] that permission should be refused if there are reasonably available sites appropriate for the proposed development in areas with a lower risk of flooding. PPG [7-027 to 29] sets out the steps to be taken for this sequential test, as it is known.

13. NPPF [170-1] provided that if there are no such sites, a further test known as the exception test may have to be applied. Under that test, development can only be permitted if (a) the development would provide wider sustainability benefits to the community which would outweigh the flood risk and (b) the development would be safe for its lifetime, taking account of the vulnerability of the users, without increasing flood risk elsewhere and, where possible, will reduce flood risk overall. PPG [7-031 and 7-035] provided that the exception test cannot be used unless the sequential test has been passed. That applies in all areas of flood risk from any source (PPG [7-001 and 7-023]). If these test are not met then PPG provides that development should be refused [7-003 and 7-004] and the burden is on the applicant for permission to provide a flood risk assessment (NPPF[173] and PPG [7-020].

14. Similar provision was made in policy ENV8 of the Crawley Borough Local Plan. Legal principles

15. In relation to the application of policy, a claimant seeking to challenge the planning judgment of an inspector faces a particularly daunting task, see R (Newsmith Stainless Ltd) v SSETR [2017] P.T.S.R. 1126 at [8]. Matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State. In Tesco Stores Ltd v SSE [1995] 1 WLR 759 , Lord Hoffman at 780 said: “ The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority. Provided that the planning authority has regard to all material considerations, it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision-making process. This distinction between whether something is a material consideration and the weight which it should be given is only one aspect of a fundamental principle of British planning law, namely that the courts are concerned only with the legality of the decision-making process and not with the merits of the decision. If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State.”

16. It will be irrational if a decision-maker failed to have regard to considerations which the decision-maker was under an obligation to take into account, that is one expressly or impliedly required by policy or legislation to be considered. This is known as type one. Where it is a matter for the decision-maker’s judgment, it may be irrational on the facts to ignore that consideration. This is known as type three, see R (Friends of the Earth Ltd) v Secretary of State for Transport [2021] 2 All ER 967 at [116-121].

17. A decision will be irrational if there was no evidence at all to support an important step in the reasoning or the reasoning involved a serious logical or methodological error, see R (Law Society) v Lord Chancellor [2019] 1 WLR 1649 at [98]

18. In E v SSHD [2004] QB 1044 Carnwath LJ, as he then was, dealt with the circumstances in which a mistake of fact may form a ground of judicial review. That case involved an issue about whether to adduce new evidence. However, there is nothing in the decision to confine it to such cases, see De Smith’s Judicial Review (9 th Ed) at 6-032 to 6-038 and the cases cited therein. At [66] in E , Carnwath LJ said this: “66. In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of CICB . First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been “established”, in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the Tribunal's reasoning”

19. In Wathen-Fayed v SSLUHC [2023] EWHC 92 (Admin) at [122] Timothy Mould KC, as the then was, sitting as a judge of the High Court, considered the approach to the sequential test in Flood Zone 1. He said: “122. Since the site's location within Flood Zone 1 was not determinative of the question whether the sequential test should be applied to the proposed development, it fell to the inspector to decide that question in the exercise of his planning judgment. The inspector made that judgment in DL33. His reasoning in that paragraph reveals the basis on which he did so. Firstly, in accordance with paragraph 162 of the Framework and paragraph 033 of the Practice Guidance, the inspector considered the findings of the SFRA which indicated that the site had the potential for groundwater flooding manifesting itself at the surface of the site. Secondly, he took into account the advice of the FRA that a site investigation would be carried out to establish the groundwater levels on the site; and that the design of the proposed development would respond to the findings of that site investigation. Thirdly, the inspector took account of the position of the Lead Local Flood Authority, which had not raised any objection to the proposed development subject to the imposition of appropriate conditions. Fourthly, he took account of the objectors' contention that the findings of the SFRA and the evidence of surface water flooding at the site constituted a medium degree of flood risk.”

20. In Mead Realisations Ltd v SSLUHC [2024] PTSR 1093 , Holgate J, as the then was, dealt with the approach to sequential tests, albeit in a different context. At [174], he said: “174. A similar analysis applies in the determination of planning applications. Where there is an unmet need, for example a substantial shortfall in demonstrating a 5-year supply of housing land, that shortfall and its implications (including the contribution which the appeal proposal would make to reducing that shortfall) are weighed in the overall planning balance against any factors pointing to refusal of permission (including any failure to satisfy the sequential test). If the total size of sequentially preferable locations is less than the unmet housing need, so that satisfying that need would require the release of land which is not sequentially preferable, that too may be taken into account in the overall planning balance. But these are not matters which affect the carrying out of the sequential test itself. Logically they do not go to the question whether an alternative site is reasonably available and appropriate (i.e. has relevant appropriate characteristics) for the development proposed on the application or appeal site. Instead, they are matters which may, for example, reduce the weight given to a failure to meet the sequential test, or alternatively increase the weight given to factors weighing against such failure”

21. If the inspector would inevitably still have come to the same conclusion had the inspector not made the undisputed error, the decision should not be quashed, see Simplex GE (Holdings) Ltd v Secretary of State for the Environment [2017] PTSR 1041 (CA) at 1060C. Holgate J in R (oao Weston Homes plc) v SSLUHC [2024] EWHC 2089 (Admin ) referred to the test as being whether it is possible for the court to say that without the error "the decision would inevitably have been the same." The first ground

22. I now consider in turn the two grounds with permission. Mr Grant, for the Secretary of State, made submissions in relation to the mistake as to the siting of the caravans, which submissions were adopted by Mr Stemp for the Authority. They submitted that this was not a mistake as to existing fact or one that was uncontentious or objectively verifiable. Despite the statement of common ground, it was submitted that the inspector was not bound to accept that statement and it was not clear from the information before the inspector that the caravans in the revised layout plan were wholly in Flood Zone 1. There was no overlay then to show this as objectively verifiable fact. Mr Grant accepted that Mr Robinson’s overlay “may” show such a position but submitted that was not before the inspector and was still not clear. Mr Stemp said that the Authority did not resile from the statement of common grounds and accepted “to a point” that there was a mistake but that the position was not clear.

23. I do not accept those submissions. In my judgment the statement of common ground at [6.7] was clear, and the inspector’s finding, which was at odds with that statement, was also clear. The inspector did not reject the statement of common ground, or give any reason for rejecting it. The statement of common ground was an uncontentious fact before the inspector. Alternatively the position of where the caravans were, or were to be sited if permission were granted, was objectively verifiable.

24. The defendants also submitted that any confusion was caused by the claimants, in not providing clear plans with or without overlays to show the siting of the caravans wholly in Flood Zone 1. Again I do not accept those submissions. There was no need for the claimants to do that given the clear agreement in the statement of common ground.

25. In my judgment the siting of the caravans was clearly a material factor in the assessment of the risk to people or property by flooding. The defendants submitted that even if the caravans were sited wholly in Flood Zone 1, then risks remained to residents including children and vulnerable adults and property from flooding of the remainder of the site, not just when occupying the caravans, and from access to and from the site being in Flood Zone 2. But the inspector did not proceed on that basis. In my judgment it is clear from the decision letter read fairly as a whole that she proceeded on the basis that some of the caravans were partially in Flood Zone 2, thereby increasing the risk of flooding to those caravans.

26. They also submitted that had this error not been made the outcome would inevitably have been the same. Mr Grant took me through the various findings of the inspector, the vast majority of which were not infected by the error and would not change. However he accepted, as he had to, that the assessment of risk “may change” but he submitted only in minimal way. I do not accept it was minimal. It was a matter which was material to the assessment of risk and that assessment is for the decision maker not this court.

27. The first ground in my judgment is made out. That is sufficient in my judgment for the decision to be quashed. I do not come to that conclusion lightly given the troubled planning history of this site. But the mistake was fundamental to the inspector’s evaluation of the planning balance. The second ground.

28. For the sake of completeness I shall deal with this ground, even though I have already determined that the decision must be quashed. The mistake is also relevant to the second ground, and to that extent the ground is made out for similar reasons. The high threshold of irrationality is, in that way, made out. The ground however involves the further issue of to what extent the inspector ought to have considered the exception test.

29. Mr Cottle accepted that national policy required a sequential test to be carried out and specified that the exception test need not be carried out unless the sequential test had been. However, he submitted that the underlying policy was the core requirement of safety, and that it was irrational of the inspector not to make findings on safety. He accepted this is type three material consideration. Mr Grant accepted that the relevant methodology in NPPF and PPG is aimed at managing safety but submitted that the first stage in the methodology was the avoidance of development in Flood Zones. It was therefore a matter for the inspector how to deal with the issue of safety.

30. The inspector dealt with the issue of alternative sites at DL61 as follows: “61. Both main parties confirmed at the hearing that there were no known alternative sites. However, the appellants have a stated preference for private sites where they can live as a single extended family group. The appellants are not likely to be looking for sites elsewhere given their occupation of this site. There are no existing public sites in Crawley, the borough is highly constrained, and other sites in adjoining Council areas are in significant demand. With the exception of Broadfield Kennels, the Council had no other sites come forward as part of the ELP call for sites process. Though the consideration of alternative sites should have formed part of the sequential testing process, I have already highlighted that there is an absence of evidence in this regard. I therefore afford moderate weight to the lack of suitable and available alternative sites.”

31. She then went on to deal with the personal circumstances of the occupiers in detail, noting such issues as age, vulnerability, health and healthcare, and schooling. She referred to Article 8 of the Human Rights Act 1998 , section 149(1) of the Equality Act 2010 , and Article 3 of the United Nations Convention of Rights of the Child. She came to this conclusion: “69. I afford the personal circumstances of the appellants’ extended family significant weight. With regard to the best interests of the children specifically, a settled base without overcrowding would be in the best interests of all the children in terms of their mental health and physical well-being, personal development, engagement with their friends, and access to education. As such, the best interests of the children have significant weight in my decision.”

32. At DL70-76 the inspector carried out the planning balance. I have already set out DL73 and 74. The remainder said this: “70. Notwithstanding that the proposal would be contrary to the development plan, it is necessary to consider whether there are material considerations which would warrant a decision other than in accordance with the development plan.

71. There are several considerations in favour of the proposal. These include significant weight given to the provision of two pitches, significant weight to the personal circumstances of the extended family, significant weight to the best interests of the children, and moderate weight to alternative sites.

72. The matters in respect of the safeguarding of land for Gatwick Airport expansion and the living conditions of occupiers are neutral in the planning balance as the scheme is not harmful to either of these main issues, subject to the imposition of a temporary planning permission. ..

75. Having regard to paragraph 55 of the Framework and PPTS paragraph 28, I have considered whether any conditions would render otherwise unacceptable development acceptable, with particular regard to temporary permission. However, it has not been demonstrated that this would be the case.

76. Having had regard to all material considerations, the benefits associated with the proposal do not outweigh the harms I have identified. Accordingly, the identified harms can only be adequately addressed by my dismissal of the appeal. Interference with the human rights of the appellants and their extended family is therefore necessary and proportionate. I have had due regard to the PSED and found that the development would provide the opportunity to advance its aims, but this must be set against my findings on flood risk and the safety of the site’s occupiers. Dismissal of the appeal therefore represents a proportionate response in this instance.”

33. The inspector did therefore refer briefly to safety in weighing up the planning balance. The focus was very much upon flood risk, and her assessment of this was contaminated by the mistake which I have found under the first ground. On the particular facts of this case, and on the particular findings made by the inspector, in my judgment the high threshold of irrationality has been made out in respect of the failure to assess the detail of the safety issues and weigh them in the balance. This was particularly so having regard to the fact that the caravans were, or were to be, sited in Flood Zone 1, and having regard to the inspector’s attribution of moderate weight to the lack of alternative sites, even though a formal sequential test had not been carried out. This called for not just an assessment of the flood risk, but of the safety of the occupiers in the event of a flood, having regard to such matters as access to and from the site in such an event. That does not necessarily mean that the exception test should have been applied in its full rigour. That would be a matter for the decision maker. However, it seems to me that the safety aspect of it should have been fully assessed and put into the balance.

34. In this regard also, I am not satisfied that even if it had, the result would inevitably have been the same, for substantially the same reasons as already given. Conclusion

35. Accordingly the decision under challenge is quashed and the appeal must be remitted once again for redetermination. I do not come to this conclusion lightly, given that this will be the second redetermination, but I see no alternative.

36. I am grateful to counsel for their assistance. They helpfully agreed that any consequential matters which cannot be resolved between the parties can be determined on the basis of written submissions. A draft order, agreed as far as possible, together with any such submissions, should be filed within 14 days of hand down of this judgment.