PP 2009/132

The relationship between planning control and pollution control is fraught with difficulties: see, for instance, EG 9 May 2009, p76. One particular issue is the extent to which the planning decision maker can properly disregard the potential for pollution from development proposals in circumstances where a pollution control permit will also be required. Central government guidance is set out in PPS 23: Planning and pollution control. On its face, however, it contains conflicting statements. In Harrison v Secretary of State for Communities and Local Government [2009] EWHC 3382 (Admin), the local planning authority (LPA) had served an enforcement notice on the appellant. The breach of planning control alleged was the unauthorised change of use of the appellant’s land from agricultural use to a mixed use of agricultural and animal-waste rendering. The LPA’s principal concern was the effect of odour pollution on the occupiers of neighbouring residential properties. The appellant appealed to the secretary of state whose appointed inspector refused the appeal. He concluded specifically that significant doubt arose, on the evidence before him, that the pollution control regime could be relied on to prevent undue amenity harm through offensive odours affecting people living in the vicinity. The appellant appealed to the High Court, under section 289 of the Town and Country Planning Act 1990, against the inspector’s decision. His main ground was that the inspector had erred in his approach to the relationship between the planning regime and the pollution control regime by departing from the advice contained in PPS 23, without giving reasons for doing so. The secretary of state’s contention was that the inspector had not departed from the advice in PPS 23, when that advice was properly interpreted and applied to the particular facts of the appeal. The court dismissed the appeal, holding that the inspector’s approach to the relevant paragraphs of PPS 23 accorded with a fair reading of those paragraphs. They did not simply say that the planning system must assume that pollution issues will not arise because of the existence of a pollution control regime. Tellingly, the judge stated: “Guidance is however broad guidance to be applied sensibly having regard to all the facts in a wide range of different situations. It works on the assumption that an appropriate location is chosen for a particular activity, not that pollution control will make any activity acceptable in any given situation.” John Martin is a freelance writer