Planning appeal — Concrete plant — Inspector finding dust from plant causing serious harm to local amenity contrary to PPS 23 Whether inspector entitled to reach that conclusion in light of regulatory regime for emissions under Pollution Prevention and Control Act 1999 — Claim dismissed
The claimant appealed to the first defendant against a deemed refusal of planning permission by the second defendant council for the erection of a concrete plant on a site situated within an established industrial estate. A number of residential properties backed onto the application site and many local residents and businesses had objected to the claimant’s proposals. They had raised concerns as to dust, but the second defendants’ environmental health officer had been satisfied with the claimant’s proposed measures to deal with the problem. However, the second defendants opposed the claimant’s appeal on the ground that, although the site was, in principle, suitable for new class B2 development, the proposals failed to meet the requirements of local plan policy and the guidance in PPS 23, which required that new employment development should not have a serious effect upon the amenities of the area.
The inspector dismissed the appeal largely on the ground of amenity concerns relating to the problem of dust generated by the plant. He considered that the level of dust would increase significantly and that this would despite the claimant’s proposed mitigation measures and the regulatory requirements of the Pollution Prevention and Control Act 1999, seriously harm the amenity of local residents and land users, contrary to planning policy. In that regard, he noted that PPS 23 required a consideration of loss of amenity from emissions in a wider context, and not merely from the narrow perspective of statutory nuisance.
The claimant brought proceedings, under section 288 of the Town and Country Planning Act 1990, to challenge the inspector’s decision. It contended that the inspector had misunderstood the law on pollution control and that the statutory regime provided sufficient protection for those who might be affected by dust so that planning permission could not be refused on that ground.
Held: The claim was dismissed.
The relationship between the planning and pollution control regimes was such that the effect of air emissions from a proposed development could be a material planning consideration, but in considering that issue a planning authority were entitled to take into account the pollution control regime. Consequently, planning authorities could, in appropriate cases, leave pollution control to the pollution control authorities, but were not obliged, as a matter of law, to do so: Gateshead Metropolitan Borough Council v Secretary of State for the Environment [1994] 1 PLR 85 and R v Bolton Metropolitan Borough Council, ex parte Kirkman [1998] JPL 787 applied. PPS 23 reflected that approach, and the inspector had borne in mind its guidance on that matter. He had not confused the different regimes of pollution control and statutory nuisance. The claimant had relied upon the fact that its proposed mitigation measures had satisfied the council’s environmental health officer, and the inspector had therefore been entitled to assume that those were the measures that would be applied under the pollution control regime. He had explained why he considered that, despite those measures, there would be significant dust emissions and, in applying PPS 23, he had focused, as he was required to do, upon whether the development was an acceptable use of the land and upon the effect that it would have, rather than upon the control of the processes or emissions.
Nor did the existence of the pollution control regime render Wednesbury unreasonable the inspector’s conclusion that the dust would cause serious harm to the amenities of neighbours. Such a submission assumed that, in relation to the likely effect of pollutants, primacy had to be accorded to the judgment of the regulator above that of the planning authority. Such an approach would mean that the potential effect of pollutants could not enter into a planning authority’s consideration unless it was clear that the plant would never be given a permit under the pollution control regime. PPS 23 did not require planning authorities to subordinate their judgments upon the effect of emissions to those of the pollution control authority.
Peter Wadsley (instructed by Tyler Law Solicitors, of Gillingham) appeared for the claimant; Charles Bourne (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendants did not appear and were not represented.
Sally Dobson, barrister
