QUEENS BENCH DIVISION
Strand. London, WC2A 2LL
B e f o r e :
(Sitting as a Deputy High Court Judge)
|HOPKINS DEVELOPMENTS LIMITED
|(1) THE FIRST SECRETARY OF STATE
(2) NORTH WILTSHIRE DISTRICT COUNCIL
Charles Bourne (instructed by Treasury Solicitor) for the Defendant
Hearing date: 2 November 2006
Crown Copyright ©
Mr George Bartlett QC: Introduction
"2. The design harmonising with the appearance of the surroundings buildings and the character and appearance of the area in general;
3. There being no serious adverse effect on the amenities of the area...;
5. Not giving rise to noise, smell, or other nuisances or pollutants that are likely to have a seriously detrimental effect on any residential or other sensitive properties or areas."
"8. The appellants stated that the concrete making process is regulated by the Pollution Prevention and Control Act 1999. Moreover, PPS23 advises that planning authorities should work on the assumption that the relevant pollution control regime will be properly applied and enforced. The assessment supplied by the appellants indicates that the dust sources at the site would be primarily the three stone/sand storage bins at the western corner of the site, the hopper used to deliver materials to the conveyor and the concrete mixer building. The Council does not disagree with that assessment. The mitigation systems proposed would result in covering the storage bins when not in use; designing the bins to avoid the wind whip of particles; enclosing the hopper with a ring-spray misting system and plastic curtains at the point of delivery; and enclosing the concrete mixer and fitting it with an air filtration system.
9. However, although the lorries carrying stone and sand should be sheeted when they arrive, I consider that dust would be released as the loads are discharged into the bins and the hopper. The appellants state that 90% of the aggregate deliveries would be directly to the hopper and that the hopper would be undercover. However, I consider that significant quantities of dust would still be created and find its way to the open air. Dust would also be released when the aggregate was moved to the hopper from the ground bins. Some dust may well be suppressed by sprays, but the particles would then be held in water which, after drying out, would be available to be whipped up by the wind and also trapped in vehicle tyres to move around and out of the site. The proposed landscaping scheme would be unlikely to reduce the dust, especially given the time necessary for the shrubs and trees to grow to a height and thickness where they would begin to become effective.
10. Therefore, I consider that the site and the general surroundings would suffer from a significant increase in dust. This would affect several residential properties along Oxford Road which back onto the site where, for example, dust would cause washing to be soiled if hung out to dry in the rear gardens and where dust would spoil the enjoyment of the rear gardens by the occupiers of the houses. In addition, the dust would also affect any neighbouring industrial users whose operations depend on relatively dust free air. In particular, one nearby occupier, LML Products Ltd, commented that good ventilation is needed for the manufacturing of metal components and so, because of the dust (and noise) it would not be possible to open doors and windows. I accept that the planning system does not exist to protect the private interest of one person against the activities of another, but the basic question is whether the proposal would unacceptably affect amenities and the existing use of land and buildings which ought to be protected in the public interest. In this particular case, I consider that the incompatibility of the proposal with the nearby residential properties and the neighbouring industrial user is a matter of public interest.
11. PPS23 Annex I advises that it is important for planning authorities to consider properly the loss of amenity from emissions in the planning process in its wider context and not just from the narrow perspective of statutory nuisance. Whereas the regulatory controls may enable the proposed development to comply with the pollution prevention regime under the 1999 Act, I consider that the air quality would suffer to the extent that the amenities of the area and those of local residents and land users would be seriously harmed. Therefore, the proposal would be contrary to Policy RE17 of the adopted Local Plan."
"'pollution' means emissions as a result of human activity which may be harmful to human health or the quality of the environment, cause offence to any human senses, result in damage to material property, or impair or interfere with amenities and other legitimate uses of the environment;"
Regulation 9 prohibits the operation of an installation other than under and in accordance with a permit. Under regulation 10(2), where application for a permit is made, the regulator must either grant the permit subject to the conditions required or authorised to be imposed by regulation 12 or refuse the permit. Under regulation 12(1) there must be included in a permit for a Part B installation such conditions as appear to the regulator to be appropriate for the purpose of preventing, or, where that is not practicable, reducing emissions into the air, taking into account, in particular, the general principles set out in regulation 11(2).
"(1) When determining the conditions of a permit, the regulator shall take account of the general principles set out in paragraph (2)...
(2) The general principles referred to in paragraph (1) are that installations and mobile plant should be operated in such a way that -
(a) all the appropriate preventative measures are taken against pollution, in particular through application of the best available techniques; and
(b) no significant pollution is caused."
Under regulation 15(1) a regulator is required periodically to review the conditions of permits and may do so at any time. It is the duty of the regulator under regulation 23 to enforce compliance with any conditions imposed, and for this purpose he may serve an enforcement notice (under regulation 24) and a suspension notice (under regulation 25).
"8. Any consideration of the quality of land, air or water and potential impacts arising from development, possibly leading to an impact on health, is capable of being a material planning consideration, in so far as it arises or may arise from any land use...
10. ...The planning system should focus on whether the development itself is an acceptable use of the land, and the impacts of those uses, rather than the control of processes or emissions themselves. Planning authorities should work on the assumption that the relevant pollution control regime will be properly applied and enforced. They should act to complement but not seek to duplicate it."
"PPS23 advises that it is important for planning authorities to consider properly the loss of amenity from emissions in the planning process in its wider context and not just from the narrow perspective of statutory nuisance."
"Employment development within towns will nearly always be located close to residential property and particular care needs to be taken in protecting the amenities of such areas...Design considerations relating to the development would include such matters as height, mass, external appearance, landscaping and lighting of buildings."