Local residents who have concerns about a proposed housing development on a site formerly used to dispose of cattle suffering from ‘mad cow disease’ have won a High Court battle.
Developer Trevor Heathcote LLP wants to build a 20-home housing estate on land at Thruxted Mill in Godmersham, near Canterbury. The site was originally used as a sawmill, but during the 1990s it became an animal rendering site, and was one of just four locations in the UK used to dispose of the caracasses of cattle infected with bovine spongiform encephalopathy (BSE).
Clean-up of the land, which is also infected with asbestos and arsenic, is likely to cost the developer more than £1.5m. Even so, both the council and the Secretary of State agreed that the development could go ahead without an Environmental Impact Assessment (EIA).
However, in a ruling handed down on Friday, planning judge Mrs Justice Lang disagreed, ruling that not enough investigation had been done into the harmfulness of any residue left from diseased cattle to justify going ahead without an EIA.
The council had decided in its screening opinion that “the redevelopment of the site for residential use is not likely to have any significant adverse effects on the environment as any likely significant adverse effects on the environment can be overcome either through the imposition of conditions or at the reserved matters stage.”
This is because “contamination of the site is to be remediated to a standard acceptable for residential development,” and “specialist advice” can be sought to deal with any contamination from BSE-infected carcasses.
“This is a matter that will be dealt with fully and in detail through the suggested conditions. The Council’s Environmental Services Section raise no objection subject to the imposition of such conditions.”
The Secretary of State also backed the council’s decision.
But in her ruling, Lang J said the decision was “vitiated by a legal error” and the error “in this case has important and legal consequences – it is not merely a procedural error – and therefore it must be quashed.”
She ruled that in this case the legal error was the same as in Gillespie v First Secretary of State, which found that a planning authority can’t rely on conditions and undertakings as an alternative for the EIA process if there hasn’t been sufficient investigation.
“Applying the principles established in the case law, a screening authority must have sufficient evidence of the potential adverse environmental impacts and the availability and effectiveness of the proposed remedial measures, to make an informed judgment that the development would not be likely to have significant effects on the environment, and that therefore no EIA is required,” the judge said in her ruling.
The difficulty, she said, in this situation is that there was only limited evidence about the nature of contamination from BSE-infected carcasses.
And little was known about the “hazards which any such contamination might present for the homes and gardens to be constructed on the site; and any safe and effective methods of detecting, managing and eliminating any such contamination and hazards.”
As such, she ruled that an EIA was required, and quashed the planning authorities’ decision to go ahead without one.
Camilla Swire v Secretary of State for Housing, Communities and Local Government (1) Ashford Borough Council (2) Trevor Heathcote LLP
Planning Court (Lang J) 22 May 2020
