Proposed new airport terminal — Public inquiry — Neighbouring kennel concerned about possible dust pollution during construction — Inspector accepting that dust potentially harmful, but refusing to impose monitoring condition — Whether inspector’s decision perverse or irrational — Section 288 of Town and Country Planning Act 1990 — Claim dismissed
The claimant owned and operated a quarantine kennel situated close to the site of a proposed new terminal at Heathrow airport. It attended a public inquiry into the proposed terminal, which was held between 1995 and 1999. Although the claimant did not object to the grant of planning permission, it expressed concern that the construction process would produce a heavy concentration of dust particulates. Evidence was adduced regarding the projected incidence on the site of particulates PM10, but no corresponding evidence was provided regarding particulates PM2.5 and nitrogen dioxide (NO2), despite the parties’ agreement that they could be injurious to the health of both humans and animals at the kennel. The claimant therefore asked for a condition to be attached to the planning permission, whereby the level of pollution would be monitored and, in the event of a threshold level being exceeded, the construction work would be halted.
In 2001, the inspector published his decision letter and granted planning permission for the new terminal and associated developments. His decision letter noted that the probable release of these particulates was potentially harmful, but he failed to impose conditions for monitoring the levels. The claimant maintained that the inspector had acted perversely or irrationally in agreeing with their analysis but subsequently failing to recommend monitoring and the imposition of conditions. It challenged his decision pursuant to section 288 of the Town and Country Planning Act 1990.
Held: The claim was dismissed.
The size of the inquiry meant that the inspector’s letter was extremely long and divided into detailed chapters. Chapter 28 dealt with the environmental issues, which were complex, and it was important to appreciate the narrow focus of the challenge presented by the claimant in the overall scale of the inquiry. Evidence adduced regarding particulates PM2.5 and NO2 was based upon studies conducted within the USA, and was not specific to the site in question. Planning guidelines in Circular 11/95 called for precision and clarity when imposing threshold tests. Since the inspector was not in possession of clear and precise evidence, it was impossible for him to impose appropriate monitoring levels and conditions despite recognising the need for them. In such circumstances, the inspector’s decision was neither irrational nor perverse.
Anthony Dinkin QC and Robert Lewis (instructed by Peacock & Co) appeared for the claimant; Richard Drabble QC and John Litton (instructed by the Treasury Solicitor) appeared for the first defendant; Guy Roots QC and Reuben Taylor (instructed by CMS Cameron McKenna) appeared for the second defendant, BAA plc.
Vivienne Lane, barrister
