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

HHJ KAREN WALDEN-SMITH SITTING AS A JUDGE OF THE HIGH COURT : Introduction

1. By this Application, the Applicant, Mr Miles Connors, seeks permission to appeal pursuant to the provisions of section 289 of the Town and Country Planning Act 1990 ( TCPA 1990 ) the decision of the Inspector appointed by the First Respondent, the Secretary of State, dated 10th December 2024 (the ‘Inspector’s decision’). The Applicant had challenged the Enforcement Notice issued by Milton Keynes City Council, the Second Respondent, (“the Council”) on 9 December 2021 in respect of the site known as former Brook End Nurseries at Brook End, Crawley, Newport Pagnell, Buckinghamshire, MK16 9HH (“the Site”).

2. The breach of planning control alleged in the Enforcement Notice was that: i) Without planning permission, the unauthorised change of use of the site for the stationing of mobile homes and caravans for human habitation. ii) Without planning permission, the unauthorised operational development in the form of the laying of tarmac and hard surfaces within the site. iii) Without planning permission, the erection of a close board fence and concrete posts to the southern boundary of the site that are over 1 metre in height and adjacent to the highway. iv) Without planning permission, the removal of in excess of 45 metres (approximately) of hedgerow along the southern boundary of the site (between points A and B on the Plan). v) Without planning permission, the installation of a septic tank and waste pipes to the eastern side of the site; and vi) Without planning permission, the installation of wooden poles (approximately 1.5 metres in height) for the purposes of electrical lighting along the eastern boundary of the site (south to north).

3. The requirements of the Notice were to: a) Cease the use of the Land for the stationing of mobile homes and caravans and for human habitation. b) Remove all the mobile homes and touring caravans from the Land. c) Remove the tarmac and all other hard surfaces from the Land. d) Remove the close boarded fence over 1 metre in height and concrete posts adjacent to the highway from the Land so that it measures no more than 1 metre in height. e) Remove the septic tank and associated waste pipes from the Land. f) Remove the wooden poles (approximately 1.5 metre in height) for the purposes of electrical lighting from the Land; and g) Plant a native mixed species hedgerow between points A and B on the Plan, comprising 50% Hawthorn (Crataegus monogyna) and 50% made up of Blackthorn (Prunus spinosa), Field rose (Rosa arvensis), Field Maple (Acer campestre), Hazel (Corylus avellana) and Cherry plum (Prunus cerasifera) within the first available planting season (November to April) after complying with requirement (d) above.

4. The period for compliance with the requirements in the Notice was three months after the date the notice took effect.

5. The Enforcement Notice referred to a number of policies as being relevant to its decision to issue it, including “Policy FR1: Managing Flood Risk”. The Enforcement Notice was accompanied by a document entitled “The reasons for issuing a notice”, which provided as follows: “The unauthorised development has resulted in the change of permeable areas to impermeable areas in an area at high risk of surface water and river water flooding, and the insertion of a septic tank with associated drainage may present flooding issues and contamination of the water environment at this location. The site has not been tested under a site-specific flood risk assessment, nor passed the sequential (and exception) tests contrary to Policies FR1, FR2, FR3 & NE6 of Plan: MK.” The Factual Background

6. The Site comprises 0.9 hectares of what was a former horticultural nursery. A building stands on the Site for which permission was granted in 2001. The site is surrounded by agricultural land to its north, east and west. Opposite on the south side of the road is Rectory Farm, including a children’s day nursery. Further to the east are a few houses, with the village of North Crawley including its church, primary school, pub and grocery shop just over one kilometre away.

7. There are currently 5 static mobile homes on the land and 8 touring caravans, although the deemed application sought permission for 4 pitches (including 4 static caravans) for the current occupiers, who comprise a large related wider family group. The appellant and his family reside on Pitch 1.

8. The Council was first notified over the third weekend of November 2021 that various works had been taking place on the Site at night.

9. A site visit by the Council on 2 December 2021 revealed that the site was being cleared with machinery and a Temporary Stop Notice (a TSN) was issued on 3 December 2021. On 6 December 2021, reports were received by the Council that, in what appears to have been breaches of the TSN, overnight 3 December 2021 mobile homes and touring caravans were moved onto the site and occupied and that further works continued over the weekend of the 4 and 5 December 2021. As a consequence of that information, the Enforcement Notice together with a Stop Notice were served on 9 December 2021. On 17 June 2022, the Council obtained an injunction pursuant to s.187B broadly prohibiting the intensification of the user of the Site. There was no compliance.

10. The Applicant brought his appeal against the Enforcement Notice on 21 December 2021 on grounds (2) (a), (c), (f), and (g) of section 174 of the TCPA 1990 . Section 174 provides that: “(1) A person having an interest in the land to which an enforcement notice relates or a relevant occupier may appeal to the Secretary of State against the notice, whether or not a copy of it has been served on him. (2) An appeal may be brought on any of the following grounds— (a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged; (b) … (c) that those matters (if they occurred) do not constitute a breach of planning control; (d) … (e) … (f) that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach; (g) that any period specified in the notice in accordance with section 173(9) falls short of what should reasonably be allowed.”

11. The appeal against the Enforcement Notice was supported by grounds of appeal contained in a letter dated 21 December 2021. There was no formal statement of case. The grounds of appeal referred to a number of documents that had been submitted to the Council by way of application for planning permission, which the Applicant relied upon in relation to its ground (a) appeal.

12. A public inquiry commenced on 17 October 2023 and closed on 10 September 2024. At the time of the appeal there were five static mobile homes and eight touring caravans on the Site and the Enforcement Notice had therefore not been complied with.

13. The decision of the Inspector was promulgated on 10 December 2024. He upheld the Enforcement Notice save that he removed item (iv), removal of 45 metres of hedgerow, from the items listed as alleged breaches of planning control, and he extended the time for compliance from three to nine months.

14. The Secretary of State contends that permission to appeal, pursuant to the provisions of section 289 of the TCPA 1990 , should be refused both on procedural grounds and on the substance of the application for permission to appeal. Procedural Matters

15. Section 289(1) of the TCPA 1990 provides that where the Secretary of State gives a decision in proceedings on an appeal under Part VII against an enforcement notice the appellant or the local planning authority or any other person having an interest in the land to which the notice relates may, according as rules of court may provide, either appeal to the High Court against the decision on a point of law or require the Secretary of State to state and sign a case for the opinion of the High Court. Section 289(6) of the TCPA 1990 provides that no proceedings in the High Court shall be brought by virtue of this section except with the leave of that Court and no appeal to the Court of Appeal shall be so brought except with the leave of the Court of Appeal or of the High Court.

16. As the Inspector’s decision was promulgated on 10 December 2024, the application for permission to appeal pursuant to the provisions of section 289 of the TCPA 1990 needed to be made on or before 7 January 2025 in order to comply with 54DPD para 6.1. The application must be in writing and set out the reasons why permission should be granted and, if the time for applying for permission has expired, must include an application to extend time for applying and the reasons why the application was not made in time (54DPD para 6.2).

17. Before filing an application, the applicant must serve a copy of the application on the persons referred to in paragraph 6.11 of the practice direction, with the draft appellant’s notice and a copy of the witness statement or affidavit to be filed with the application. The persons to be served pursuant to paragraph 6.11 are the Secretary of State, the local planning authority who served the notice or gave the decision with respect to a section 289(1) appeal, anyone with an interest in the land, with respect to a section 289(2) appeal, and any other person on whom the notice to which those proceedings related was served (54DPD 6.11).

18. The application is to be filed in the Administrative Court Office (ACO) with (a) a copy of the decision being appealed; (b) draft appellant’s notice; (c) a witness statement or affidavit verifying any facts relied on; and (d) a witness statement or affidavit giving the name and address of and the place and date of service on each person who has been served with the application. If any person who ought to be served has not been served, the witness statement or affidavit must state that fact and the reason why the person was not served.

19. The Applicant in this matter purported to serve on the Secretary of State the appellant’s notice and a short witness statement of Tahseen Choudhry. This was not a witness statement of fact in accordance with the practice direction. This is acknowledged in the witness statement itself that the witness statement of fact will be filed on it is suggested that will be filed on 20 January 2025, 13 days after the deadline for filing the application.

20. The Applicant therefore failed to comply with the provisions of practice direction 54D 6.3 by failing to serve a copy of a witness statement of fact on the Secretary of State before the filing of the application, and also failed to comply with the provisions of practice direction 54D 6.4(c ) by failing to file at the ACO the witness statement of fact.

21. The Applicant further failed to comply with the provisions of practice direction 54D 6.4(d) by failing to file a compliant witness statement of service. The witness statement of Ms Choudhury, her second dated 6 January 2025 merely makes the following assertion: “I confirm that the Draft Appeal and documents have been served by email on 1 st and by email on the 2 nd Respondents on 6 January 2025”

22. Counsel for the Applicant has referred to this part of the Secretary of State’s response as “nitpicking” and that there had not been a serious breach. Indeed, he said that his instructing solicitors had done “very well to get the application in when they did”. That unfortunately shows a fundamental lack of understanding of the importance of compliance. His submission is, in effect, that no harm has been done and any breach is one that should simply be ignored by the court. That is, of course, not the way in which the court views the Civil Procedure Rules or the Practice Directions within the CPR. These are not mere formalities. The Applicant needed to comply with the Practice Direction in order to bring the application before the court. His failure to do so means that the application has not been brought and cannot be considered (see Wenman v Secretary of State for the Environment [1995] JPL 1030; and Epic Capital UK Limited v Secretary of State for Levelling Up, Housing and Communities [2024] EWHC 588.

23. On 20 January 2025, 13 days after the deadline for filing and serving the application had lapsed, the Applicant purported to file and serve two witness statements of fact. The Court does have the power to extend or shorten time for the compliance with any rule or practice direction. Any application for an extension of time for bringing the application for permission to appeal under section 289 of the TCPA is to be made in the application pursuant to practice direction 54D 6.2(b).

24. The explanation that the witness statements were not ready with the attempt to file the application for permission was “Due to the Christmas holiday period and offices being closed” is a woefully inadequate explanation and fails to recognise the importance of compliance with the practice direction. As Eyre J. set out in R (Ibrar) v Dacorum BC [2023] JPL 668: “It is significant that there are special rules governing s.289 appeals. Those are rules which derive from the Rules of Court and which are there because of the context of the need for expeditious resolution of these matters. In particular, there is a need for expedition where there is an enforcement notice requiring compliance on pain of criminal sanctions. Thus, PD 54D, para.6.1, provides a time limit of 28 days. Similarly, the application for permission is to be determined at a hearing. There is no equivalent of the paper consideration followed by an opportunity to renew which would apply to judicial review. That is a reflection of the need for expedition and also of the importance of the matter. Paragraph 6.5 of the Practice Direction provides that the permission hearing is to be heard within 21 days of the filing of the appeal unless the court orders otherwise: again an indication of the expedition with which matters are to be addressed”.

25. The failures of the Applicant to comply with the provisions of the practice direction means that there is not any valid application for permission before the court for determination. The Applicant has failed to bring any application for relief, which would require compliance with the steps set out in Denton v TH White [2014] EWCA Civ 906 and R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633 . In the circumstances, there is nothing for the Court to determine. Content of the Late Witness Statements

26. If, contrary to the determinations above, the witness statements dated 20 January 2025 could support an extant application for permission, there are unfortunately fundamental problems with those statements.

27. First, the witness statement of Brian Wood, who proclaims himself to be neither an expert in flood risk or ecology, sets out submissions with respect to the decision of the Inspector which do not assist in an appeal on the law pursuant to section 289 as that requires an appeal on law based upon the material available to the Inspector when making his decision (see, for example, Newsmith Stainless Ltd v Secretary of State for the Environment, Transport and Regions [2017] PTSR 1126 , [2001] EWHC Admin 74 ). Consequently, paragraphs 3, 4 and 5 (on pages 5 to 17) would not assist in any appeal. Similarly, the witness statement of Tom Quigg is purely a criticism of the Inspector’s reasoning and would not assist in any appeal. Skeleton Argument

28. With respect to the skeleton argument, the Secretary of State points out that the skeleton argument was not filed either with the Applicant’s application for permission to appeal, or within 20 days as the application said that it would.

29. While this is a failure on the part of the Applicant, it is not something which is fundamental to the bringing of the application and, had there been a properly made application and good grounds for bringing the appeal, then this would not have been an issue. The Applicant’s Contentions

30. I am satisfied that the Applicant’s failures to comply with the provisions of Practice Direction 54D are such that the application has not been properly made and that there is no basis upon which permission could be granted by this Court.

31. However, for completeness and to ensure that the Applicant understands what the position would have been had there been a properly made application, I will deal with the points raised on the Applicant’s behalf. The Enforcement Notice

32. The Enforcement Notice identified six breaches of planning control – one of which was deleted by the Inspector. The requirement to remedy within 3 months was extended to 9 months by the Inspector. The Grounds

33. The Grounds of Appeal/Details of Claim do not clearly articulate the grounds upon which this appeal is brought and no grounds are clearly particularised. The summary contained within the response and skeleton argument of the Secretary of State accurately reflect the grounds of any appeal – albeit that matters were expanded upon during the course of oral submissions.

34. The grounds can therefore be summarised as follows: i) Ground 1 : The Inspector wrongly rejected the Appellant’s flood risk evidence in the absence of any contradicting evidence from the Council and/or the Environment Agency (“the EA”) because it had not been reviewed by the EA. Alternatively he gave inadequate reasons for departing from the EA’s flood zone classification of the “residential part” of the Site. ii) Ground 2 : The Inspector wrongly “look[ed] behind” the parties’ agreement in the flooding statement of common ground that the sequential test was passed because there were no other sequentially appropriate sites. iii) Ground 3 : The Inspector wrongly applied the exception test to “surface water issues”; alternatively, should have found that it was passed. iv) Ground 4 : The Inspector failed to consider extending the compliance period and/or granting a temporary consent in order that the EA might review the Appellant’s flood risk evidence. v) Ground 5 : The Inspector wrongly concluded that permission was required pursuant to the Hedgerow Regulations 1997/1160 for removal of the hedgerow bounding the Site in circumstances in which the parties had agreed that its removal was justified. vi) Ground 6 : The Inspector failed to take account of the impact on protected species of the “lawful fall-back” use of the Site, measured against which the Appellant’s use would not have given rise to “any unacceptable adverse effect[s]”. Flooding

35. The major issue in the application for permission to appeal related to flooding and that is the issue raised in four of the identified grounds of appeal. At the oral hearing, Counsel for the Applicant focussed upon the issue of flooding and relied upon a case that had not been referred to in the grounds, or in the skeleton argument and had only been filed after court hours the day before the hearing. Unfortunately, as a copy had not been brought to court by the Applicant’s Counsel it was not before me at the oral hearing.

36. Subsequent to the hearing, I have now familiarised myself with R (Substation Action Save East Suffolk Ltd) v Secretary of State for Energy Security and Net Zero (1) East Anglia One North Ltd (2) and East Anglia Two Ltd (3) [2024] EWCA Civ 12 .

37. The Inspector considered the issues surrounding flood risk within paragraphs 28 to 50 of the decision letter and concluded that there was a serious risk of flooding and that was the determinative issue in the appeal. In my judgment, he cannot properly be impugned with respect to his decision or the steps he took to reach that conclusion.

38. The submissions on behalf of the Applicant were that Inspector had erred in determining the flood risk on the basis that the sequential test for flooding is with respect to all flooding and not just fluvial (i.e. from rivers and streams) and that he misunderstood the distinction as set out in the aforementioned Substation Save East Suffolk case.

39. The Substation Save East Suffolk case concluded that an application for development consent is not required to demonstrate that whenever there is a risk of flooding from surface water that are no other sites reasonably available where the proposed development could be located in an area of lower surface water flood risk. The risks of flooding from surface water are to be taken into account when deciding whether to grant development consent and that raises issues of planning judgment. It is not a case that assists the Applicant in the circumstances of this case.

40. The national guidance and the planning practice guidance (PPG) on “Flood risk and coastal change” provides a number of principles with respect to flooding: i) That development should be directed away from areas at risk of flooding; ii) That if the development cannot be directed away from areas at risk of flooding then if the development is outside Flood Zone 1 (defined in table 1 of the PPG) then there is a sequential test to be applied in order that the development is steered towards lower-risk areas; iii) That if as a consequence of the sequential test being applied, a highly vulnerable development cannot be located in a lower risk area and the development will be in Flood Zone 2, then the exception test is to be applied and in order to satisfy that exception test it is necessary for the development to provide “wider sustainability benefits to the community” and that will be safe for its lifetime taking into account the vulnerability of its user.

41. These principles arise from the National Planning Policy Framework (20 December 2023), which sets out as follows: “165. Inappropriate development in areas at risk of flooding should be avoided by directing development away from areas at highest risk (whether existing or future). Where development is necessary in such areas, the development should be made safe for its lifetime without increasing flood risk elsewhere.

168. The aim of the sequential test is to steer new development to areas with the lowest risk of flooding from any source. Development should not be… permitted if there are reasonably available sites appropriate for the proposed development in areas with a lower risk of flooding. The strategic flood risk assessment will provide the basis for applying this test. The sequential approach should be used in areas known to be at risk now or in the future from any form of flooding.

169. If it is not possible for development to be located in areas with a lower risk of flooding (taking into account wider sustainable development objectives), the exception test may have to be applied. The need for the exception test will depend on the potential vulnerability of the site and of the development proposed, in line with the Flood Risk Vulnerability Classification set out in Annex 3. Annex 3 contains the “Flood risk vulnerability classification”. Which included “Caravans, mobile homes and park homes intended for permanent residential use” in the “HIGHLY VULNERABLE” category.

170. The application of the exception test should be informed by…a site specific flood risk assessment. To pass the exception test it should be demonstrated that: a) the development would provide wider sustainability benefits to the community that outweigh the flood risk; and b) the development will be safe for its lifetime taking account of the vulnerability of its users, without increasing flood risk elsewhere, and, where possible, will reduce flood risk overall.

171. Both elements of the exception test should be satisfied for development to be allocated or permitted.” And from the PPG which provides as follows: “The [sequential] approach is designed to ensure that areas at little or no risk of flooding from any source are developed in preference to areas at higher risk. This means avoiding, so far as possible, development in current and future medium and high flood risk areas considering all sources of flooding including areas at risk of surface water flooding.” “The Sequential Test… will not be required where… The site is in an area at low risk from all sources of flooding…” “The absence of a 5-year land supply is not a relevant consideration for the sequential test for individual applications.” “The Exception Test should only be applied… if the Sequential Test has shown that there are no reasonably available, lower-risk sites, suitable for the proposed development, to which the development could be steered.” “Examples of wider sustainability benefits to the community could include: The re-use of suitable brownfield land as part of a local regeneration scheme; An overall reduction in flood risk to the wider community through the provision of, or financial contribution to, flood risk management infrastructure; The provision of multifunctional Sustainable Drainage Systems that integrate with green infrastructure, significantly exceeding National Planning Policy Framework policy requirements for Sustainable Drainage Systems;”

42. Further, Table 1 defines Flood Zone 1 (“FZ1”) as “Land having a less than 0.1% annual probability of river or sea flooding”, FZ3a as “Land having a 1% or greater annual probability of river flooding”, and FZ3b (the functional floodplain) as “land where water from rivers or the sea has to flow or be stored in times of flood… Functional floodplain will normally comprise land having a 3.3% or greater annual probability of flooding, with any existing flood risk management infrastructure operating effectively”. Table 2 makes it clear that highly vulnerable development in FZ1 need not satisfy the exception test, and that such development should not be permitted in FZ3a/b, without reference to the exception test. Ground 1

43. The Applicant contends that the Inspector erred in concluding that the Site was at significant risk of flooding. He contends that the Inspector ought to have accepted the Appellant’s contrary evidence which coincided with the Flood Map for Planning produced by the Environment Agency.

44. The Inspector made it clear in paragraph 33 of the Decision Letter that he understood the policy context. He acknowledged that the Flood Map for Planning compiled by the Environment Agency showed the residential part of the Site as being in Flood Zone 1 and noted the Council’s assertion that it was in Flood Zone 3. The Inspector went on to note that the surface water flooding maps made it clear that there was a high risk of flooding, and concluded that those maps were more accurate than the Flood Map for Planning because “they use a more up to date digital terrain model, which is more likely to accurately reflect actual ground levels today than when they were first used for flood mapping”: He also noted that an email from the Environment Agency confirmed that position. He therefore did not consider the Flood Map for Planning as being determinative of the issues, which is a decision that he was properly able to make. Having set out why he did not consider the Flood Map for Planning as determinative, the Inspector went on to consider the further evidence including the Council’s evidence that the Site had in fact flooded on a number of occasions, and the Applicant’s evidence to the contrary. He plainly took that evidence into account as he had concluded that he could not attribute “significant weight” to that evidence, because it had not been reviewed by the Environment Agency and because it contained a number of deficiencies.

45. Ground 1 is therefore not arguable. The Inspector took into account the Applicant’s evidence and rejected that evidence for clear and logical reasons. While the Applicant disagrees with the Inspector’s determination that does not mean that he could not come to the conclusions he did. Ground 2

46. The substance of Ground 2 is that the parties had agreed that the sequential test was passed, and the Inspector should not have “look[ed] behind this agreement”.

47. The parties did agree by way of statement of common ground that the Council did not have available alternative sites. “These are sites that either benefit from an existing planning permission, and contain vacant pitches, or are allocated and deemed readily available sites which may not currently benefit from planning permission”. It was, however, a matter in dispute between the parties as to “Whether or not there is other land ‘readily available’ and deemed a ‘reasonable alternative’ which has been presented to demonstrate that the Sequential Test would be passed”.

48. It is noted that the Applicant’s counsel did not expand upon Ground 2 within the oral hearing. He seemed to consider that he would have a longer period of time to expand his oral submissions, despite the case being given a 1 hour listing and there being no application for an extension of the usual hour listing. Taking that into account, I do not accept the Respondent’s position that Ground 2 may not have been proceeded with. I take it that it was not abandoned, however given that the parties had not agreed that the sequential test was passed, Ground 2 is in any event unarguable. Ground 3

49. By Ground 3 the Appellant complains about the Inspector’s treatment of the exception test.

50. The Inspector had concluded, as he was entitled to, that the site was in Flood Zone 3 a/b and he went on to apply the sequential test and determined that it was not met on the evidence. He noted that it was therefore not necessary to consider the exception test but, had it been necessary, he concluded that the exception test would not have been met. In those circumstances, Ground 3 is unarguable. It does not add anything to Ground 1 in any event, but fundamentally the Inspector concluded that the test was not met and that was a conclusion he was entitled to reach. Again, the fact that the Applicant’s Counsel did not expand on this ground orally does not indicate, in my judgment, that the ground had been abandoned – it was more a timing issue. However, it is not an arguable ground. Ground 4

51. By Ground 4 the Applicant complains that the Inspector had failed to extend the compliance period of three months or grant a temporary consent in order that the Environment Agency could review the flood risk evidence of the Applicant.

52. The Inspector did increase the compliance period from three months to nine months, although he had not been asked to do so at the Inquiry.

53. The Inspector also considered the potential of granting a temporary consent, again even though he had not been asked to do so, but concluded that it would not be acceptable to grant a temporary consent given the flood risk to the site, as he found it to be.

54. As has been pointed out by the Respondent, the Applicant could re-apply for planning permission if the Environment Agency were to approve the flood risk evidence presented by the Applicant.

55. Ground 4 is therefore not arguable.

56. The Applicant concentrated on the flooding issue at the oral hearing, and sought to rely upon Substation Action Save East Suffolk . Grounds 2, 3 and 4 were not expanded upon and, while not abandoned, there is no arguable case on these grounds. The Applicant was relying most heavily on Ground 1, but for the reasons set out above, this is a disagreement with the Inspector’s conclusions which were properly reached and it is not arguable that his conclusion can be impugned in an appeal. There was no “lack of understanding” on the part of the Inspector. Permission is therefore not given on ground 1, 2, 3 and 4. Biodiversity

57. Ground 5 contains a bare assertion that permission was not required for the removal of the hedgerow. The Council accepted that the removal of the hedgerow did not amount to a breach of planning control and the Inspector removed the allegation from the Enforcement Notice. The removal of the hedgerow required permission under the Hedgerow Regulations and the Inspector properly dealt with the loss of biodiversity with the unnecessary removal of 45 metres of the biodiverse hedgerow. The hedgerow was not the only loss, and the Inspector was also concerned about the loss of bramble scrub.

58. The material conclusion with respect to biodiversity was that both parties agreed that there would be significant biodiversity net loss: the Appellant asserted a loss of 39.4% and the Council asserted a loss 68.3%. The Applicant did not put forward any basis upon which the agreed loss of biodiversity could be compensated.

59. The loss of biodiversity is contrary to policy. Ground 5 is not arguable. Protected Species

60. Ground 6 is the allegation that the Inspector did not take account of the impact of the lawful fall-back use of the Site, which he should effectively have used as a base level from which to measure the adverse effects of the Applicant’s use.

61. The Inspector properly dealt with protected species, and in particular great crested newts and bats in his decision letter. He noted that the Site fell within an amber risk zone, indicating the likely presence of great crested newts, and he criticised the failure to undertake any field work surveys. He identified the Council’s concern that the external artificial lighting could adversely affect bats, and criticised the Appellant’s evidence for failing to report on the baseline situation, for failing to conduct bat surveys throughout the year, and for not acknowledging the consequences of the external lighting. These were all justifiable criticisms and he was entitled to find a breach of policy.

62. Ground 6 is not arguable. Conclusion

63. I find that this appeal was not brought within the requirements of the Practice Direction to CPR part 54 and is therefore not before the court.

64. Even if the appeal had been brought properly this is not an appeal that can succeed and permission is refused.