Planning permission — Waste transfer facility — Factory manufacturing cocoa products near appeal site — Impact on existing business — Inspector finding against applicants — Applicants’ appeal to High Court allowed
The local planning authority refused to grant permission for a waste transfer facility on land to the north west of Dalton Street, Stoneferry, Hull. A principal objector was British Cocoa Mills (Hull) Ltd (“BCM”), which had a factory manufacturing cocoa products about 250m from the appeal site. The only issue on appeal related to the potential impact of the applicants’ proposed use of the site on BCM’s existing business. The appeal site, surrounded largely by industrial premises, was the beneficiary of a grant of outline planning permission in September 1991 for the development for business, general industrial and storage/distribution purposes.
The application concerned the facility for the collection, bulking up and transfer of liquid and containerised industrialised wastes to final disposal facilities. The refusal was on grounds that it could prejudice the operation of food processing in the event of malodorous emissions. Apart from the substantial dewatering of acqueous wastes, no treatment of waste was intended on the site. Waste was to be brought to the site, temporarily held in tanks or in a storage building and then bulked up into loads to be transported to a final disposal point. There was no such facility in the county’s waste disposal provisions. BCM was concerned about tainting if there was an escape of chemical substance into the atmosphere and stressed, in evidence, that it was not realistic to seal such an operation hermetically. The applicants maintained that they proposed a fully enclosed drum unloading/loading enclosure as a means of reducing the risk of drum handling spillages; and argued that even without such a procedure the potential frequency and likely magnitude of an incident was such that the potential for an unacceptable consequence was so low as to be negligible. The inspector dismissed the appeal considering that the risk of harm to the cocoa factory represented an overriding objection to the proposal.
Held The applicants’ appeal was allowed.
1. Probabilistic risk assessment was not a precise science or art form and the evidence before the inspector was extremely incomplete. A decision maker took into account only part of the evidence when evaluating the merits of a proposal and provided that he made clear that he understood that part of the evidence, he was entitled to disregard it if he found other parts of the evidence of greater value in assisting him to his final conclusion. However, he had to provide clear and intelligible reasons for why he had set evidence to one side.
2. There had been no evidence at all that a tainting incident would sooner or later be “likely to occur” as the inspector indicated.
3. He had made no effort to estimate the likely frequency of the worst case scenario. If he had started by making his own assessment of the risk in the original plan and then estimated the extent to which that risk would be reduced by the covered enclose, and then assessed the risk of the worst case scenario on that hypothesis, it would have been possible to judge whether he had reached a conclusion that was open to him on the evidence. But he had done none of those things.
4. The court could not understand the inspector’s thought processes whereby he unambiguously concluded that malodorous emissions would materially and adversely affect BCM’s factory.
Gerard Ryan QC and Suzanne Ornsby (instructed by Edwards Geldard) appeared for the applicants; Richard Drabble (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment; Richard Phillips QC and Jonathan Milner (instructed by Rollit Farrell & Bladon) appeared for BCM; the local planning authority, Humberside County Council, did not appear and were not represented.
