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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Colney Heath Parish Council v Secretary of State for Communities & Local Government & Ors [2009] EWHC 787 (Admin) (22 April 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/787.html Cite as: [2009] EWHC 787 (Admin)

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ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		22/04/2009

Timothy Corner QC :

INTRODUCTION

1. This is an application under section 288 of the Town and Country Planning Act 1990 to quash a decision dated 9^th January 2008 by the Secretary of State for Communities and Local Government ("the Secretary of State") allowing an appeal by Mr Peter Robb against the refusal of planning permission by St Albans City Council for stationing of one mobile home, three touring caravans with residence for a gypsy family-change of use to residential, on land at Nuckies Farm, Coursers Road, Colney Heath, St Albans ("the Site").
2. The Secretary of State's decision was taken on his behalf by an Inspector, Mr Clive Hughes, after a public inquiry which sat on 17^th July and from 11^th to 13^th December 2007.
3. The application is brought by the Colney Heath Parish Council ("the Parish Council"). The Parish Council was not represented at the inquiry, and no one gave evidence on its behalf. However, it submitted a letter of representation to the Planning Inspectorate which was dated, erroneously, 31^st June 2007. The letter raised a number of objections. Among the objections were that the Site was on a flood plain, and should not be used as a travellers' site. Further, it was said,

"..By allowing the hardcore [already extant on the site] to stay and any building being placed on the site, the natural flow of the floodwater is affected and the houses further down the river will have increased risk of flooding. …"

4. The single ground of challenge to the Inspector's appeal decision is that the Inspector failed altogether to deal with the issue of the impact of the development on flooding outside the Site, as opposed to the risk of flooding within the Site, despite the fact that the District Council as Local Planning Authority ("the LPA") produced a witness to deal with this matter.
5. In his decision letter, the Inspector identified the main issues at paragraph 7, as follows;

"… the effect of the development on the openness and function of the Green Belt; the effect on the character of the area; and whether introducing residential accommodation onto the appeal site would result in unacceptable risk to life or place an unacceptable burden on emergency services. The final issue is whether the material considerations advanced in support of the development are sufficient to clearly outweigh the harm by reason of inappropriateness and any other harm."

6. At paragraphs 8 onwards the Inspector set out certain matters of background, noting at paragraph 8 that the Site forms part of a

"…larger, wedge-shaped land holding that runs between Coursers Road and the River Colne."

7. At paragraphs 13 onwards the Inspector considered the effect of the development on the Green Belt, concluding at paragraph 15 that

"The development would thus result in harm to the Green Belt in that it would be inappropriate development, would reduce openness, and would conflict with one of the purposes of including land in the Green Belt. Substantial weight must be given to this harm as it would be contrary to Government advice in PPG2 and to Policy 1 of the Local Plan. It is necessary to consider whether there is any other harm before balancing the identified harm against the other material considerations advanced by the appellant."

8. At paragraphs 16 to 19 the Inspector dealt with the effect of the development on the character of the area. His conclusion, at paragraph 19, was as follows;

"Overall, I consider that due to its layout, scale and siting in relation to the road and footpath, the proposed development would have an urbanising effect on the immediate area and that this would be harmful to the countryside character of the area. This would be contrary to Policy 69 of the Local Plan."

9. At paragraphs 20 to 28 of his decision, he dealt with the issue of flooding. He considered that issue against the background of the relevant Government guidance, PPS 25.
10. His conclusions on this issue are set out at paragraphs 27 and 28, which I set out;

"27. Overall I conclude on this issue that while a large proportion of the site falls within Zone 3a, where PPS 25 advises that development of this type should not be permitted, the level of risk is significantly reduced by the site specific factors set out above. In particular, the maximum depth of a 1:100 (+20%) year flood would only be about 0.5m above ground level and the site occupiers should have at least a 10-hour flood warning in which to vacate the site. As their horses graze the land between the appeal site and the river it seems to me to be highly unlikely that the site occupiers would be taken unawares by rising flood water.

" 28. On the other hand, the level of risk is increased due to the personal circumstances of the appellant's family. Due in part to the health and ages of those who would live on the site I do not consider that the mitigating circumstances are sufficient to completely remove the risk that could arise from potential flooding. I conclude that the development would constitute 'highly vulnerable' development as defined in PPS 25. As there has been no sequential test carried out for this proposal; as the development would be 'highly vulnerable' and in accordance with the advice in paragraph D10 of PPS 25, there is therefore no reason to consider the Exception Test. Overall I conclude that there is clear, if limited, conflict with advice in PPS 25."

11. At paragraphs 29 onwards, the Inspector reviewed "Other material considerations." Paragraph 29 reads as follows;

"The material considerations advanced by the appellant to be balanced against the identified harm include the need for sites generally; the appellant's personal need for a site and the lack of alternative sites; his health needs and the health needs of his family; the education needs of his grand children; and the failure of policy."

12. The Inspector stated at paragraph 30 that he considered the general need for sites locally to be significant. In relation to the personal need of the Appellant, he said at paragraph 33 that:

"I consider that the specific needs of the appellant and his family are severe and immediate. From the evidence before me it appears that there is no realistic prospect of the appellant being able to find an alternative site to buy or rent. The lack of a suitable alternative carries weight in favour of the appellant."

13. The Inspector then dealt with the health needs of the Appellant and his family. He concluded at paragraph 34 that:

"The identified health needs are considerable and carry some weight in favour of the appellant. While there is no evidence to suggest that these needs could only be met from this site, I have no doubt that a settled base would facilitate access to the necessary childcare."

14. In relation to education, the Inspector concluded at paragraph 35 that:

"While the education needs of the children is a factor that weighs in favour of the appellant, I can only give it limited weight as the children do not have any special needs that could only be satisfied at a school close to the appeal site."

15. In relation to policy, the Inspector referred to the "historic failure of the Council to provide any sites [for Gypsies and Travellers] or policy guidance." He continued (at paragraph 36) that:

"While I am optimistic that the emerging policy guidance will, in time, address this matter, the current position is that there appear to be no sites available locally and no policy advice. This weighs in favour of the appellant."

16. At paragraphs 37 to 39 the Inspector carried out what he called a "Balancing Exercise." As part of the harm to be weighed against the benefits he had found, he included harm he had found "to personal safety arising from flood risk" (see paragraph 37). He concluded (also at paragraph 37) that:

"There is conflict with the development plan and with advice in PPG 2 and PPS 25."

17. Against the harm he had identified, the Inspector balanced at paragraph 38 the need for more sites, the lack of alternative sites, the lack of specific policies in the plan, and the likelihood that the appellant and his family would have to continue:

"..its roadside existence if this appeal fails…"

18. The Inspector continued in paragraph 38 to refer to the personal circumstances of the family. He said that limited weight should be given to their health and education needs, and "a little weight to" the fact that the appellant kept his horses on land in his ownership adjacent to the appeal site.
19. The Inspector concluded the balancing exercise at paragraph 39, stating:

"I have balanced these material considerations advanced by the appellant against this harm. However, the identified harm is considerable. I have given substantial weight to the harm to the Green Belt. Notwithstanding the mitigating circumstances I do not consider that the clear advice in PPS 25 can be lightly set aside particularly due to the high vulnerability of the appellant's family. For these reasons, I conclude that the material considerations advanced in this case do not clearly outweigh the harm."

20. At paragraphs 40 to 42 the Inspector considered whether, nevertheless, a temporary permission could properly be granted. He referred to the guidance in circular 01/2006 on temporary planning permissions, and decided that a temporary permission could be granted. The matters he took into account on the debit side included "safety in the event of flooding", to which he referred in paragraph 42. In relation to that matter the Inspector said, again in paragraph 42:

"The harm to safety arising from occupation of the appeal site is limited by its location on the very edge of the flood zone."

21. At paragraph 43, the Inspector considered conditions. As part of that consideration, he said:

"Due to the potential flood risk, the number and position of all mobile homes and touring caravans needs to be specified and agreed prior to their siting. The ground level of the site must not be altered. In order to protect residents and others in the event of flood the appellant must subscribe to the EA Floodwatch scheme. For the same reason details of flood proofing, including tethering, of the mobile homes needs to be approved by the Council. In addition, the emergency escape route should include a gateway from the road to the touring caravan and the boundary fencing needs to be approved to ensure that no floating objects can be washed off or onto the site."

22. In conclusion, the Inspector granted planning permission for the application, subject to conditions limiting the occupation to various members of the Robb family, and limiting occupation to 5 years in any event.
23. There were further conditions, and I should read conditions 6, 7, 8, 9 and 10:

"6 The installation details of the caravans/mobile homes shall be approved in writing by the local planning authority before development is commenced. The details shall include the floor levels of the static mobile homes; the means of elevating the floor levels above the 1:1000 year flood level; the means of tethering the mobile homes and the touring caravans; and details of the screens to be provided to prevent storage under the mobile homes.

7 Prior to the first occupation of the site the occupants of the site shall subscribe to the Environment Agency's "Floodwatch" flood warning system. This subscription shall be continuously maintained throughout the residential occupation of this site.

8 Details of the boundary fencing shall be submitted to and approved in writing by the local planning authority. The submitted details shall include details of a pedestrian gate adjacent to the proposed residential touring caravan to ensure its occupants have a dry escape route to Coursers Road in the event of flooding. The approved fencing and gate shall be constructed prior to the first occupation of the site and shall be retained thereafter for the duration of the development.

9 The ground levels of the site shall not be altered without the prior written approval of the local planning authority.

10 No commercial activities shall take place on the land without the prior written permission of the local planning authority."

EVIDENCE ON FLOOD RISK OUTSIDE THE SITE

24. I turn to the issue of flood risk outside the site, which is the subject of this challenge. Although the Parish Council did not give evidence at the inquiry, the LPA did, and it produced a witness from the Environment Agency, Mr Trevor Brawn, to deal with flooding. It is plain from Mr Brawn's proof of evidence that his case was that not only would the development result in a risk from flooding to those resident on the site, it would also increase the risk of flooding elsewhere. I set out paragraphs 8.1 and 8.2 of his conclusions:

"8.1 The proposed development would increase the number of people residing within the floodplain and therefore at risk from flooding. The site could not be protected from flood risk without increasing the risk of flooding to other people and property and this would be unacceptable.

8.2 The proposed development will result in a loss of floodplain storage at the site and will also obstruct flood flows and, as a result, will increase the risk of flooding elsewhere. Whilst losses of floodplain storage may be relatively small, the cumulative effect of such losses can be very significant and should be resisted for that reason."

25. Mr Robb called evidence from an expert, Mr Ian Walton, to counter that of Mr Brawn. Mr Walton's evidence was that the proposed development would be safe for the occupants and would not increase the risk of flooding to others.
26. A number of the issues that had concerned Mr Brawn were resolved by the submission of Mr Walton's evidence.
27. A Draft Statement of Common Ground on flooding matters was prepared by Mr Brawn and Mr Walton. Although it is headed "Draft" I understand that it reflected the views of the respective experts, and was submitted as such to the Inspector. I shall therefore refer to it as the Statement of Common Ground.
28. The Statement of Common Ground set out what was and what was not agreed. It was agreed, for instance, that the mobile home raised on piers would remain free from flooding even during the 1 in 1000 year event modelled by the Appellant's expert.
29. However, other matters were not agreed. Most significantly, among the matters not agreed were stated to be the following:

"1. The proposed development will not significantly reduce floodplain storage or obstruct flood flows and therefore will not increase flood risk to others.

2. The proposed development will be safe.

3. The installation of a mesh screen around the perimeter of the static mobile homes between ground level and the underside of the elevated floor will prevent the storage of material beneath the mobile home………

5 The proposed boundary treatment of a robust permeable fence will prevent floating objects within the site being washed off the site.

6. Touring caravans on the site not used for residential accommodation will be securely tethered to prevent them being washed away by floodwaters. However, if they were to be washed away, they would be retained on site by the proposed boundary treatment."

30. After the matters not agreed had been listed, the Statement of Common Ground went on to list suggested planning conditions:

"Condition: The floor level of the static mobile homes shall be approved in writing by the Local Planning Authority before development is commenced.

Reason: To ensure the safety of the mobile homes

Condition: The installation details of the static mobile homes shall be approved in writing by the Local Planning Authority before development is commenced. The details shall include the means of elevating the floor level, the means of tethering the static mobile home and details of the screen to be provided to prevent storage of materials beneath the static mobile home.

Reason: To ensure the proposed development will be safe and will not increase the flood risk to others.

Condition: The occupants of the site will subscribe to the Environment Agency's 'Floodwatch' flood warning system.

Reason: To ensure the safety of the occupants of the site.

Condition: Details of the boundary fence shall be approved in writing by the Local Planning Authority before development is commenced.

Reason: To ensure no floating objects can be washed off the site in times of flood.

Condition: The means of tethering the touring caravans shall be approved in writing by the Local Planning Authority before development is commenced.

Reason: To ensure the touring caravan are prevented from being washed away during times of flood."

31. At one point in his submissions Mr Masters, counsel for Mr Robb before me and at the inquiry, suggested that the modelling carried out by Mr Walton had resolved all possible concerns of Mr Brawn in relation to flood storage. However, the Statement of Common Ground shows that Mr Brawn still had concerns. His rebuttal proof of evidence suggests why that was so. At paragraph 3.6 of his rebuttal he notes, in relation to Mr Walton's proof of evidence:

"Paragraph 7.3 states that there are no proposals to erect any other permanent structures or to store materials on the site. Even if there was a planning condition to restrict such use on the site, previous experience would suggest that this restriction will not be adhered to and an increased flood risk would result from a reduction in area for floodwater storage and would also have an impact on overland flood flows. Both would lead to an increased risk of flooding on the site and to surrounding property in the vicinity of the site."

THE CHALLENGE

32. The Parish Council's case is that the Inspector's decision failed to recognise, let alone address, the evidence presented by the LPA concerning the impact of the development on flooding outside the Site, as opposed to the risk of flooding within the Site. The Parish Council draw attention to the evidence of Mr Brawn, in his proof of evidence and rebuttal, and to the fact that in the Statement of Common Ground he maintained his refusal to agree that the proposal would "not significantly reduce floodplain storage or obstruct flood flows and therefore will not increase the flood risk to others."
33. The Parish Council says that the Inspector failed to mention this issue in his decision letter. He did not refer to the evidence of either the LPA or Mr Robb on the matter. He did not indicate whether he preferred the evidence of one party or the other, and what his overall conclusion on the matter was. His decision did not explain how his conclusion on this particular matter contributed to his overall decision. As a consequence, the Inspector erred in law in failing to take account of a material consideration and/or failing to give any or any adequate reasons for his decision.
34. The issue of off-site flooding, says the Parish Council, was a principal controversial issue. It was one of the Parish Council's principal reasons for objection to the development. Given that it was a principal controversial issue, the Inspector had a duty not only to take it into account, but also to deal with it in his reasons; see eg South Bucks DC v Porter (no 2) [2004] 1WLR 1953, at paragraph 36.
35. Further, says the Parish Council, it has been substantially prejudiced by the Inspector's failure. The decision in this case was a marginal one. There was at the very least a real possibility that the Inspector would not have granted a temporary planning permission had he addressed his mind to the issue of flood risk to land outside the Site.
36. The challenge is not defended by the Secretary of State. The Secretary of State has signed a draft consent order submitting to judgement. In that order it is stated that:

"The Defendant concedes that the Inspector erred in failing to provide an adequately reasoned decision."

37. The defence to the challenge is presented on behalf of Mr Robb, who was joined as Third Defendant by order of Mr Justice Sullivan on 4^th November 2008.
38. Mr Robb's case can be summarised as follows.
39. First, it is said that there was no need for the Inspector to deal with the issue of off-site flooding, because by the end of the inquiry, it had ceased to be a principal controversial issue. Secondly, it is said that in any event the decision letter does adequately deal with the point. Thirdly, it is submitted that in any event the Parish Council has suffered no prejudice and therefore the decision should not be quashed.
40. So far as the need for the Inspector to deal with the issue of off-site flooding is concerned, Mr Masters, for Mr Robb, said that by the end of the inquiry the issue of off-site flooding had ceased to be a controversial issue, because Mr Brawn had conceded that his concerns could be met by the imposition of conditions. He relied on a witness statement of Mr Walton, submitted on 18^th December 2008. In that statement Mr Walton said:

"12 My recollection of the Inquiry is that the matters that were in dispute as set out in the Statement of Common Ground were discussed at great length before the Inspector. In particular, I recall that Mr Brawn of the Environment Agency was cross-examined on these very issues for approximately two and a half hours.

13 I further recall that Mr Brawn of the Environment Agency had reluctantly to concede under cross examination that the suggested conditions would adequately mitigate the risk of off-site flooding that might result from the proposed development."

41. Mr Masters said that because Mr Brawn had conceded that conditions would adequately deal with the off-site flooding issue, the Inspector had only to consider imposition of appropriate conditions to deal with this matter, which he did. Mr Masters referred to conditions 6-10, and said that they would all achieve some aspect of mitigation of off-site flooding risk.
42. Secondly and in any event, Mr Masters said, the Inspector adequately dealt with the issue of off-site flooding, quite apart from the conditions to which I have just referred. Mr Masters relied on paragraph 7, which identifies "risk to life" as a main issue. Risk to persons off the site is included within that, he argued. He relied on paragraphs 17 and 18, which refer directly, he said, to raising the level of the mobile home to deal with flood storage issues. Further, Mr Masters drew attention to paragraph 21, which, he said, records that the mobile home would be raised above the maximum flood level on piers such that the mobile homes themselves would remain free from flooding even during a 1/1000 year event.
43. He then took me to paragraph 26 of the decision, in which the Inspector found that the health and age of the proposed occupiers of the mobile homes was a concern that would increase the risk "to them and others." He reminded me that the balancing exercise at paragraph 37 refers to issues of "personal safety arising from flood risk", and that paragraph 42 refers to the "harm to safety arising from occupation of the appeal site…..." Finally, Mr Masters referred to paragraph 43, in which the Inspector makes clear that he is imposing conditions at least in part "in order to protect residents and others….."
44. Mr Masters' third submission was that in any event, there was no prejudice to the Parish Council. If the issue of off-site flooding had not been taken into account, the Parish Council must show that there was a real possibility that the consideration of the matter would have made a real difference to the decision. There was no such possibility, said Mr Masters, once it had been established that the mobile home could be raised to a level above even the 1/1000 year flood level. Insofar as the Parish Council's challenge was a reasons challenge, Mr Masters relied on Lord Bridge in Save Britain's Heritage v Secretary of State [1991] 1WLR 153, as quoted in the South Bucks case (already cited) at paragraph 29 for the proposition that it is for the applicant "to satisfy the court that he has been substantially prejudiced by the failure to give reasons".

CONCLUSIONS

45. To begin with, was the issue of off-site flooding one with which, subject to the effect of Mr Brawn's answers in cross examination, the Inspector had to deal? I am in no doubt that it was, and, indeed, Mr Masters did not seriously contend to the contrary. It has long been established (see eg In re Poyser and Mills Arbitration [1964] 2 QB 467, quoted in the South Bucks case at paragraph 27) that a decision letter need only express its conclusions on the "principal important controversial issues." This was such an issue.
46. Next, was the Inspector absolved from dealing with that issue save by the imposition of conditions, as a result of any concessions made by Mr Brawn in cross examination? I am not satisfied that he was.
47. In effect, I was invited to accept that the issue of the acceptability of the development in terms of off-site flooding had been resolved during cross examination, by Mr Brawn's agreement that the imposition of conditions would satisfy his concerns. However, the evidence in relation to what Mr Brawn said in cross examination was somewhat unsatisfactory.
48. The only direct evidence of Mr Brawn's agreement to that position was from Mr Walton. It is true, as Mr Masters pointed out, that no one produced a statement to contradict Mr Walton. A statement by Mr Brawn dated 17^th March 2009 was submitted to me, in which Mr Brawn does not deal with the allegation in paragraph 13 of Mr Walton's statement. Further, as Mr Masters pointed out, Cllr Brazier, who submitted the Parish Council's statement in these proceedings, and who was present at the inquiry, did not provide a further statement contradicting paragraph 13 of Mr Walton's statement.
49. Nevertheless, I still find it unsatisfactory to have to rely on Mr Walton's statement in order to find that what was in the written evidence before the inquiry a principal controversial issue was no longer such an issue by the time the inquiry ended. After all, Mr Walton's statement was dated 18^th December 2008. It related to cross examination which took place in December 2007. Recollection of what was said is notoriously hard over that length of time. An illustration of that point is to be found in Mr Robb's Defence, dated 25^th November 2008, and settled by Mr Masters, who appeared for Mr Robb at the inquiry. Although Mr Masters relied on the concession contained in Mr Walton's statement in the hearing before me, the concession cannot have been in the forefront of his mind when he settled the Defence, because there is no reference to it there.
50. I do not know why Mr Brawn and Mr Brazier did not submit statements accepting or contradicting paragraph 13 of Mr Walton's statement. It may be, for all I know, that they simply could not remember whether what he said was correct.
51. There was no evidence of Mr Brawn's alleged concession that was contemporaneous with the inquiry. Mr Masters relied on the closing submissions made by him and by counsel to the inquiry. Although these are not evidence, they do have value as a report of what the relevant advocates were saying had or had not been agreed or conceded. However, I was not able to find in Mr Masters' submissions an unequivocal claim that Mr Brawn had conceded that the issue of off-site flooding could be dealt with adequately by conditions. Further, although Mr Masters claimed that an acknowledgement of such a concession could be found in the submissions for the LPA, I could not discern it. Indeed, the main passage relied on by Mr Masters contained a warning by counsel for the LPA (at paragraph 4.14(viii) of his submissions);

"I add another warning. The Appellant seeks to rely upon some answers given by Mr Brawn in terms of the degree of risk. We have no problem with that provided the question that was being asked is remembered-at one point e.g. the questions were expressly on the basis of the safety of the mobile home structures themselves. However, that is only one aspect. None of this can deflect from the very obvious risks AND most importantly the clear risk based sequential test in PPS 25 with which these proposals conflict."

52. All of the above shows how important it was for the Inspector to make a judgement on the issue of off-site flooding, and to draw conclusions on the basis of the evidence. It was for him to decide what was the effect of the cross examination he had heard, and to decide whether, as Mr Brawn had said in his written evidence, the appeal proposal would present an unacceptable risk of off-site flooding, or whether any possible risk could be satisfactorily dealt with by condition.
53. In my judgement the issue of off-site flooding was throughout the inquiry a main issue which the Inspector not only had to take into account but also to deal with expressly in his decision letter. It did not cease to be a main issue because of the cross examination of Mr Brawn, whatever its effect. It was for the Inspector, who heard the witnesses, to draw conclusions from that cross examination, and then draw conclusions on the issue itself. It is not appropriate for the court to seek to do so, particularly so long after the inquiry took place.
54. Next, if the Inspector had to deal with the issue of off-site flooding, is it right that he did, in fact, deal with it adequately? I find that he did not. I accept, of course, the effect of the cases cited to me by Mr Masters, to the effect that planning appeal decision letters are not to be read on the basis that the Inspector is writing an examination paper, and that one has to look not at the minutiae but at the real sense and basic content of the decision to which he had come-see eg ELS Wholesale (Wolverhampton) Limited v Secretary of State (1987) 56 P&CR 69, at page 78.
55. However, it seems to me that the Inspector did not deal with the issue at all, in any real sense. Paragraph 7 of the decision letter simply raises the issue of "risk to life", entirely generally. Paragraphs 17 and 18 do, as Mr Masters says, refer to raising the level of the mobile home. But the point was that Mr Brawn was saying that there would be risks of off-site flooding, even with the mobile home being raised. What is missing is any conclusion by the Inspector as to whether that was correct or not. The same is true in respect of Mr Masters' reference to paragraph 21 of the decision. As to paragraph 26, the Inspector is not in my view dealing in that paragraph with the risk to others in the sense of other persons on land outside the Site. He is finding that the particular vulnerability of Mr Robb's family would put not only themselves at risk but also others, which I take to be the emergency services, whose members would have to rescue them in the event of a flood. I remind myself that the burden on the emergency services was one of the main issues identified by the Inspector in paragraph 7. Paragraph 42 refers, it is true, to the harm to safety arising from the occupation of the Site, but it still does not deal with whether as Mr Brawn said the development would lead to an unacceptable risk of off-site flooding.
56. Paragraph 43 of the Inspector's decision refers to conditions. I accept that some of the conditions are intended to deal with the possibility of off-site flooding. It seems to me that as Mr Masters said elements of conditions 6 to 10 could be said to do that. Further, those conditions are clearly based on the conditions in the Statement of Common Ground. However, that does not enable Mr Robb to defeat the Parish Council's challenge. In the light of the case made by Mr Brawn, the Inspector was obliged to grapple with the issue whether despite the imposition of conditions, the risk of off-site flooding would still make the development unacceptable. He did not deal with that issue.
57. I therefore find that the Inspector failed to deal with a principal controversial issue, namely off-site flooding, and that this raises the inference that he failed to take account of the issue.
58. Finally, has the Parish Council suffered prejudice thereby? In my judgement it has. In the terms of the tests enunciated by Glidewell LJ at pages 352-353 in Bolton MBC v Secretary of State (1990) 61 P&CR 343, I am of the clear view that there is a real possibility that consideration of this issue would have made a difference to the decision. In reaching that conclusion I do not have to find, as Mr Pike urged me to do, that the decision in this case was marginal. It seems to me that this was an issue important enough to make a difference to the outcome even of a planning appeal that could not be so described. At the very least, having regard to the guidance given by Lord Brown of Eaton-Under-Heywood at paragraph 36 of the South Bucks case, the Parish Council as unsuccessful opponents of the development needed to know how the approach underlying the grant of permission in this case might impact on future applications. The Inspector's approach in this case does not equip the Parish Council with that knowledge.
59. Accordingly, I find that the Parish Council's challenge succeeds, and that the Inspector's decision must be quashed.