Hopkins Developments Ltd v The First Secretary of State & Anor [2006] EWHC 2823 (Admin)

EWHC-Admin
Hopkins Developments Ltd v The First Secretary of State & Anor
[2006] EWHC 2823 (Admin) · 2006-11-10
[1]Mr George Bartlett QC: Introduction This is an application under section 288 of the TCPA 1990. The claimant challenges an inspector's decision dismissing an appeal against the deemed refusal of an application for planning permission for development described as the erection of a concrete plant with associated batching offices and vehicle parking, the erection of a new industrial unit with associated parking and a new parking area for an existing unit. The appeal was conducted by written representations.[2]The application for permission was made in respect of a site, unit 1, on the Porte Marsh Industrial Estate at Calne in Wiltshire, an established and growing industrial estate. The inspector received written representations from the claimant, as appellant, and the North Wiltshire District Council, who had resolved the day after the appeal was made to refuse planning permission. Ninety-five letters of objection had been sent to the council, from residents, the local civic society and local businesses. A number of residential properties, in a road called Oxford road, back onto the site. Recognising that dust was a concern, the claimant had put forward measures to deal with it, and the council's Environmental Health Officer had stated that these satisfied her concerns. The council opposed the appeal on the basis that, although the site was in principle suitable for new class B2 development, the proposed development failed to meet the requirements of policy RE 17 of the adopted North Wiltshire Local Plan (2001) and the guidance contained in PPS23, which requires that new employment development should not have a serious effect on the amenities of the area.[3]Policy RE17 (which is entitled "Employment policy in the towns") provides that businesses, industrial and storage development within the framework of the towns, as defined on the proposals map, will be permitted subject to a number of requirements, among which are:
"2. The design harmonising with the appearance of the surroundings buildings and the character and appearance of the area in general; 3. There being no serious adverse effect on the amenities of the area...; 5. Not giving rise to noise, smell, or other nuisances or pollutants that are likely to have a seriously detrimental effect on any residential or other sensitive properties or areas."
[4]The inspector in para 2 of his decision said that he considered that the main issue in the case was "the effect of the proposal on the amenity of the properties in the locality, particularly due to noise and dust and also due to the visual impact of the new building intended as a noise screen." In his reasons for dismissing the appeal, the inspector dealt with traffic, dust, noise and visual impact. He said that the lorry traffic associated with the proposal would not cause a significant increase in danger from traffic or environmental pollution and the number of additional heavy goods vehicle movements through the industrial estate would be unlikely to be significantly disturbing for those who lived nearby.[5]On dust, the inspector concluded that the site and general surroundings would suffer from a significant increase in dust, which would affect several properties in Oxford Road backing onto the site and would also affect any neighbouring industrial users whose operations depended on relatively dust free air. On noise the inspector said that the noise assessment submitted by the appellant was unclear in certain respects and that the evidence on noise that was before him reinforced his view that the site was unsuitable for the proposal as described. On visual impact he said that in his opinion, the proposed 9m high building would significantly harm the amenities of the occupants of the adjoining houses in Oxford Road and would seriously erode the enjoyment of their rear gardens. He concluded that the proposal would not comply with policy RE 17 due to the effects of dust from the operations and the overbearing nature of the new building, meant as a noise screen, on the rear gardens of adjacent houses in Oxford Road. He therefore dismissed the appeal.[6]For the claimant Mr Peter Wadsley seeks to challenge the decision on the basis that the inspector's conclusions on dust, noise and visual impact are in each case vitiated by errors of law or alternatively that inadequate reasons were given for them. The inspector addressed the dust issue as follows:
"8. The appellants stated that the concrete making process is regulated by the Pollution Prevention and Control Act 1999. Moreover, PPS23 advises that planning authorities should work on the assumption that the relevant pollution control regime will be properly applied and enforced. The assessment supplied by the appellants indicates that the dust sources at the site would be primarily the three stone/sand storage bins at the western corner of the site, the hopper used to deliver materials to the conveyor and the concrete mixer building. The Council does not disagree with that assessment. The mitigation systems proposed would result in covering the storage bins when not in use; designing the bins to avoid the wind whip of particles; enclosing the hopper with a ring-spray misting system and plastic curtains at the point of delivery; and enclosing the concrete mixer and fitting it with an air filtration system. 9. However, although the lorries carrying stone and sand should be sheeted when they arrive, I consider that dust would be released as the loads are discharged into the bins and the hopper. The appellants state that 90% of the aggregate deliveries would be directly to the hopper and that the hopper would be undercover. However, I consider that significant quantities of dust would still be created and find its way to the open air. Dust would also be released when the aggregate was moved to the hopper from the ground bins. Some dust may well be suppressed by sprays, but the particles would then be held in water which, after drying out, would be available to be whipped up by the wind and also trapped in vehicle tyres to move around and out of the site. The proposed landscaping scheme would be unlikely to reduce the dust, especially given the time necessary for the shrubs and trees to grow to a height and thickness where they would begin to become effective. 10. Therefore, I consider that the site and the general surroundings would suffer from a significant increase in dust. This would affect several residential properties along Oxford Road which back onto the site where, for example, dust would cause washing to be soiled if hung out to dry in the rear gardens and where dust would spoil the enjoyment of the rear gardens by the occupiers of the houses. In addition, the dust would also affect any neighbouring industrial users whose operations depend on relatively dust free air. In particular, one nearby occupier, LML Products Ltd, commented that good ventilation is needed for the manufacturing of metal components and so, because of the dust (and noise) it would not be possible to open doors and windows. I accept that the planning system does not exist to protect the private interest of one person against the activities of another, but the basic question is whether the proposal would unacceptably affect amenities and the existing use of land and buildings which ought to be protected in the public interest. In this particular case, I consider that the incompatibility of the proposal with the nearby residential properties and the neighbouring industrial user is a matter of public interest. 11. PPS23 Annex I advises that it is important for planning authorities to consider properly the loss of amenity from emissions in the planning process in its wider context and not just from the narrow perspective of statutory nuisance. Whereas the regulatory controls may enable the proposed development to comply with the pollution prevention regime under the 1999 Act, I consider that the air quality would suffer to the extent that the amenities of the area and those of local residents and land users would be seriously harmed. Therefore, the proposal would be contrary to Policy RE17 of the adopted Local Plan."
[7]Mr Wadsley's submission is that these paragraphs show that the inspector misunderstood the law on pollution control. Had he correctly understood it, Mr Wadsley says, he would have realised that the statutory regime provided sufficient protection for those who might be affected by dust, so that there could be no justification for refusing planning permission because of the effects of dust.[8]The relevant control provisions are contained in the Pollution Prevention and Control Regulations 2000, made under the 1999 Act. The proposed plant would be what is called in the Regulations a Part B installation, and the Regulations apply to it accordingly. The regulator for the purpose of such an installation is the local authority. Regulation 2(1) contains the following definition of pollution:
"'pollution' means emissions as a result of human activity which may be harmful to human health or the quality of the environment, cause offence to any human senses, result in damage to material property, or impair or interfere with amenities and other legitimate uses of the environment;"
Regulation 9 prohibits the operation of an installation other than under and in accordance with a permit. Under regulation 10(2), where application for a permit is made, the regulator must either grant the permit subject to the conditions required or authorised to be imposed by regulation 12 or refuse the permit. Under regulation 12(1) there must be included in a permit for a Part B installation such conditions as appear to the regulator to be appropriate for the purpose of preventing, or, where that is not practicable, reducing emissions into the air, taking into account, in particular, the general principles set out in regulation 11(2).[9]Regulation 11 provides:
"(1) When determining the conditions of a permit, the regulator shall take account of the general principles set out in paragraph (2)... (2) The general principles referred to in paragraph (1) are that installations and mobile plant should be operated in such a way that - (a) all the appropriate preventative measures are taken against pollution, in particular through application of the best available techniques; and (b) no significant pollution is caused."
Under regulation 15(1) a regulator is required periodically to review the conditions of permits and may do so at any time. It is the duty of the regulator under regulation 23 to enforce compliance with any conditions imposed, and for this purpose he may serve an enforcement notice (under regulation 24) and a suspension notice (under regulation 25).[10]Mr Wadsley says that the effect of these provisions is that there is a comprehensive regime for preventing pollution and enforcing against it. In issuing a permit a regulator must impose conditions to ensure that the plant is operated in such a way that no significant pollution is caused; and pollution includes emissions which impair or interfere with amenities. Thus with the pollution control regime in place it would not be possible for the plant (in the words of policy RE17) to have "a serious adverse effect on the amenities of the area" (paragraph 3) or to give rise to "pollutants that are likely to have a seriously detrimental effect on any residential or other sensitive properties" (paragraph 5). Had the inspector appreciated the wide range of controls available to the council, says Mr Wadsley, he would necessarily have concluded that they could control the problems that he identified in paragraphs 10 and 11 of his decision. Since the inspector accepted the policy stance in PPS23 that the pollution control regime would be properly applied and enforced he should have concluded that the council would be able to, and would, control effectively the problems he identified, and thus there was no basis for dismissing the appeal on the issue of dust. In any event, Mr Wadsley says, the inspector gave no reasons for rejecting the EHO's acceptance of the mitigation measures or to explain why he considered that the amenities of those living nearby would be seriously harmed despite the comprehensive controls provided by the Regulations.[11]The relationship between the planning and pollution control regimes has been the subject of consideration by the Court of Appeal in Gateshead Metropolitan Borough Council v Secretary of State for the Environment (1994) 71 P & CR 350 and R v Bolton Metropolitan Borough Council, exp Kirkman [1998] JPL 787. They establish the proposition that the impact of air emissions from a proposed development is capable of being a material planning consideration but in considering that issue the planning authority is entitled to take into account the pollution control regime. Thus in appropriate cases planning authorities can leave pollution control to pollution control authorities, but they are not obliged as a matter of law to do so. PPS23 reflects this. It says:
"8. Any consideration of the quality of land, air or water and potential impacts arising from development, possibly leading to an impact on health, is capable of being a material planning consideration, in so far as it arises or may arise from any land use... 10. ...The planning system should focus on whether the development itself is an acceptable use of the land, and the impacts of those uses, rather than the control of processes or emissions themselves. Planning authorities should work on the assumption that the relevant pollution control regime will be properly applied and enforced. They should act to complement but not seek to duplicate it."
[12]It is clear that the inspector had in mind this passage from paragraph 10. It was relied on by the appellant, and the inspector recorded this at paragraph 8 of his decision. MrWadsley, however, points to the first sentence of paragraph 11 of the decision, where the inspector said:
"PPS23 advises that it is important for planning authorities to consider properly the loss of amenity from emissions in the planning process in its wider context and not just from the narrow perspective of statutory nuisance."
[13]The reference is to paragraph 1.8 of Annex 1 to PPS23, and this begins:
"With reference to pollution that causes statutory nuisance..."
While on the face of it the fact that the inspector referred to the quite different regime of statutory nuisance is surprising, it does not seem to me to be sufficient to point to the conclusion that, when in the next sentence of paragraph 11 the inspector referred to the pollution control regime under the 1999 Act, he was confusing the two regimes. In any event I do not see that, in the ultimate analysis, this point could be determinative in view of the way in which the inspector was asked to consider the proposed mitigation measures and the fact that he did so and reached a conclusion that was based upon them. As appellant the claimant had placed reliance on the fact that the mitigation measures, which it described in its representations in the appeal, had satisfied the EHO. Thus the inspector could assume, as he was being asked to assume, that these were the measures that would be applied under the pollution control regime. He considered them, and in paragraph 9 he explained why, despite them, he took the view that there would be significant dust emissions from the proposed plant. His conclusion in paragraph 11 that the amenities of the area and of local residents and land users would be seriously harmed by dust was based on this assessment. Thus he did what paragraph 10 of PPS23 said that he should do - he focussed on whether the development itself was an acceptable use of the land and the impacts that it would have, rather on than the control of the processes or emissions themselves. In approaching the matter in this way, in my judgment, he acted in accordance with the law.[14]The alternative way in which Mr Wadsley puts his case in relation to dust is to say that, in view of the existence of the pollution control regime, the conclusion that dust would cause serious harm to the amenities was Wednesbury unreasonable. Under the 2000 Regulations the council in issuing a permit would have to impose conditions to ensure that the plant was operated in such a way that no significant pollution was caused; and pollution includes emissions which impair or interfere with amenities. It was therefore not open to the inspector to conclude, assuming, as he had to assume, that the pollution control regime would be properly applied and enforced, that dust emissions from the plant would or might seriously impair the amenities of the area.[15]This is an argument that is superficially attractive. But it is dependent on the underlying assumption that, in relation to the likely impact of pollutants to which the 2000 Regulations apply, primacy must be accorded to the judgment of the regulator above that of the planning authority. I can see no basis for such an assumption, and it does not appear to me that the passage from paragraph 10 of PPS23 that I have quoted above provides support for it. It would effectively mean that, unless it was clear to the planning authority that the plant could never achieve a permit (cf Gateshead per Glidewell LJ at 359), the potential impact of pollutants could never enter into its consideration of whether planning permission should be granted. The thrust of paragraph 10 is that planning authorities should focus on the impacts rather than the control of emissions, not that they must subordinate their judgment on the impacts to those of the pollution control authority. I therefore reject Mr Wadsley's contention that it was not open to the inspector to conclude that the impact of dust would be seriously adverse.[16]I also reject the contention that in this respect the inspector failed to give adequate reasons for his decision. In my judgment he explained as fully as was appropriate in a decision of this nature what he considered to be the likely sources of dust with the mitigation measures in place and the effect that the dust would have, so that his conclusion that there would be serious harm to amenity could be understood.[17]Although the grounds of application contended that the inspector's conclusions on noise left material considerations out of account or alternatively were Wednesbury unreasonable, Mr Wadsley recognises that the inspector did not find that noise was a breach of policy RE 17 or constituted a reason for dismissing the appeal. It is clear from the decision that it was not noise but dust and visual impact that caused the inspector to conclude that planning permission should be refused. At paragraph 14 he put the matter no higher than to say that the evidence on noise reinforced his conclusion that the site was unsuitable for the proposal; and at paragraph 17 he made clear that he was dismissing the appeal because the proposal did not comply with policy RE 17 due to the effects of dust and the overbearing nature of the proposed building. In these circumstances there is no need for me to consider the contentions on noise. Even if the claimant were right on this, it would not affect the success or failure of the challenge.[18]On visual impact Mr Wadsley says that the inspector erred in law in that he misinterpreted policy RE17. The second requirement of the policy was that the design should harmonise with the appearance of surrounding buildings and the character and appearance of the area in general. The inspector's concern was in relation to the height of the proposed building, but that, says Mr Wadsley, was not a matter of design within the meaning of the policy. I need only say that I cannot accept this contention for the reason that the paragraph 3.28 of the supporting text of policy RE17 explicitly states that height is a design consideration. It says:
"Employment development within towns will nearly always be located close to residential property and particular care needs to be taken in protecting the amenities of such areas...Design considerations relating to the development would include such matters as height, mass, external appearance, landscaping and lighting of buildings."
[19]This ground also fails, therefore, and the application must be refused.

Cited in 2 later judgments