QUEEN'S BENCH DIVISION
33 Bull Street, Birmingham B4 6DS
B e f o r e :
| IAN FRANK HARRISON
|- and -
|THE SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
|CHESHIRE WEST AND CHESTER COUNCIL
(SUCCESSOR TO VALE ROYAL BOROUGH COUNCIL)
Daniel Kolinsky (instructed by Treasury Solicitor) for the First Respondent
Colin Crawford (instructed by Simon Goacher, Head of Legal and Democratic Services) for the Second Respondent
Hearing dates: 25 November 2009
Crown Copyright ©
His Honour Judge McKenna:
"Without the benefit of planning permission the unauthorised change of use of the land from agricultural use to a mixed use of agricultural/industrial processing and manufacturing of animal by-products and pet foods and retail sale of the same".
• The impact upon the standard of amenity enjoyed by occupants of residential properties in the neighbourhood, particularly with regard to odours;
• The implications of traffic generated by industrial use of the local Road network and amenity; and
• Whether any continuing harm from these matters was outweighed by waste management, commercial and employment advantages of the use.
There is no challenge to this identification of main issues in these proceedings.
"I consider that odour arising from the industrial processing has caused very significant harm to the amenity of people living in the area. Continuation of harm at an unreasonable level is very likely notwithstanding the IPPC controls now available. Senna Green is an unsuitable location for the processing use. The effects of goods vehicle traffic adds some weight to this conclusion. The advantages of the development at this site as a waste management mechanism or a supporter of the locally based farming businesses are insufficient to outweigh the serious continuing harm to amenity which the processing of poultry by-products causes as a matter of conflict with local plan policies BP1 and GS6. Conditions of planning permission, as discussed during the inquiry, could not remove or sufficiently reduce the problems. The ground (a) appeal will therefore fail, and planning permission be refused".
"2. This statement advises that:
• Any consideration of the quality of land, air or water and potential impacts arising from development, possibly leading to impacts on health, is capable of being a material planning consideration, insofar as it arises or may arise from or may effect any land use;
• The planning system plays a key role in determining the location of development which may give rise to pollution, either directly or indirectly, and in ensuring that other uses and developments are not, as far as possible, effected by major existing potential sources of pollution.
• The controls under the Planning and Pollution Control regimes should complement rather than duplicate each other…
10 The planning and pollution control systems are separate but complementary. Pollution control is concerned with preventing pollution through the use of measures to prohibit or limit the release of substances to the environment from different sources to the lowest practicable level. It also ensures that ambient air and water quality meet standards that guard against impacts to the environment and human health. The planning system controls the development and use of land in the public interest. It plays an important role in determining the location of development which may give rise to pollution, either directly or from traffic generated, and in ensuring that other developments are, as far as possible, not affected by major existing, or potential sources of pollution. 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."
Summary of Issues
(a) That the Inspector departed from the advice in paragraph 10 of PPS 23 without explaining that he was doing so or giving reasons for so doing contrary to the approach advocated by Woolf J as he then was in EC Gransden & Co -v- Secretary of State  54 B and CRF 86 in which he stated:-
".. if a body was going to depart from the policy, it had to give clear reason from not doing so in order that the recipient of its decision would know why the decision was being made as an exception to the policy and the grounds upon which the decision is taken."
(b) That the Inspector failed to follow or give notice of his intention to depart from the consensus of experts as set out in Statement of Ground between David Green and Stuart Clayton dated 27 November 2007 a copy of which is at pages 63 and following in the bundle. In particular the Appellant relies upon the following passages from that document:-
"The site's "IPPC" permit it now issued. It contains conditions relating to all IPPC considerations. It must be assumed that the conditions will be implemented by the operator and enforced by the local authority to meet BAT and IPPC guidance standards ...
The control and abatement of odours, including the use of BAT and guidance, is an incremental process. The condenser and boiler modifications being undertaken need to be indicative of BAT and there would be an expectation that the odour impact standards will be achieved."
(a) The Inspector did not depart from the advice in PPS 23 when properly interpreted and applied to the particular facts of this appeal;
(b) The Inspector did not fail to follow or give notice of his intention to depart from the consensus of experts. Rather the Inspector's decision correctly understood and took into account the evidence of the experts.
The Inspector's Decision
"That the commencement of commercial rendering after 2001 brought about serious amenity harm on a regular basis through odour travel from the site".
"The geographically wide spread of letters of objection suggested that the problem was being experienced over a fairly wide area encompassing nearby villages. This situation could not in my view be satisfactorily explained, as suggested by Mr Bolton, by an increased propensity of people to complain in more recent times."
"Paragraph 10 of PPS 23: Planning and Pollution Control details the separate but complementary roles of the planning and pollution control systems, planning having an important role in determining the location of the development which may give rise to pollution as an acceptable use of land. It advises planning authorities to work on the assumption that the relevant pollution control regime will be properly applied and enforced. This guidance is in the context generally of proposals for development. The situation in this case is somewhat different in that the development had already been carried out, and there is now experience of its operation for some 5-6 years.
100. An IPPC permit had been issued in October 2007. It was accepted that it should be assumed that the conditions of the Permit would be implemented by the operator and enforced by the Council to meet BAT (Best Available Techniques) and IPPC standards. A number of process improvements were in the course of being implemented, including the fitting of a new air-cooled condenser and the routing of non-condensables to be burnt in a new boiler. The Appellants argued that the control of the situation could now be left with confidence to the pollution control system.
101. Whilst I accept the general submission of the Appellants that the control standards are likely to be improved over time, that does not necessarily mean that IPPC is a more stringent system than had operated before. Their witness on environmental matters separately indicated that if an improvement was required under the IPPC concept of BAT, then such an improvement must have already been necessary under the BATNEEC (Best Available Technique Not Entailing Excessive Cost) concept of LAPC. The BAT concept continues to require consideration of the cost of applying techniques, albeit within different parameters related to the degree of environmental protection afforded.
102. In this context it is important to assess the effectiveness of past odour controls under LAPC in avoiding material harm to amenity. After the commencement of by-product rendering on a much larger scale in 2002, there was evidence both of the installation of equipment within the plant to add to its potential capacity and of attempts by the site operators, in conjunction with the Council Environmental Health team to mitigate the odour problems by working practices operated at the site and by installation of additional and improved control equipment in relation to LAPC control. After 2004 these had continued in the context of an application for the grant of IPPC Permit.
103. The overall position by the date of the inquiry suggested that some improvements had been achieved. Actual numbers per annum recorded complaints had reduced, although this would be a very crude way of assessing the situation. On the one the hand I accept the implications of major peaks in numbers coinciding with the times when LDC applications were being considered and consulted upon by the Council - with some reductions thereafter. At the same time the Council's system for registering complaints may not give an accurate picture of the scale of the problem. Each phone call or letter would have been logged as an individual event. At the same time the issue to a complainant of a diary for recording problems over time would also have counted as a single event. In assessing the significance of reductions in more recent times, the concept of "complaints fatigue" cannot be set aside."
"The operation of the plant had continued to cause undue harm to amenity through odour transmissions up to the time of the inquiry and the issue of the IPPC Permit"
Whilst at paragraph 106 he acknowledged that future improvement in odour control could reasonably be expected he noted areas of uncertainty which were to his mind relevant to his overall judgment of the likely efficacy of the available pollution control regime such as unloading arrangements and the need for feasibility studies in the IPPC Permit and the specific limitations built into the IPPC conditions. He found that the reliance that could be placed on the IPPC regime to prevent future unreasonable amenity harm in planning terms was limited. The combined effect of the history of complaints, the evidence of ongoing problems and specifically identified limitations of the IPPC regime led the Inspector to conclude at paragraph 109 that:-
"In the circumstances of this case I retain significant doubts that the pollution control regime can be relied upon to prevent undue amenity harm through offensive odours affecting people living nearby. Having regard to local geography, the evolution of the plant in an adapted building previously used in connection with pig farming and the realistic scope of IPPC controls, a continuation of past problems on a significant scale appears very likely to me. There are good reasons for seeking to locate a rendering plant of this nature some distance from residential property. Although it is sited in the countryside, I do not agree with the proposition advanced on the Appellants' behalf that one could not find anywhere more remote in England other than this site. The pattern of settlement is relatively scattered but there are groups of dwellings located in fairly close proximity to Senna Green, including those in and around Sandiway Farm. This situation casts serious doubt on the suitability of this location for the development. I consider that there remains a clear risk over the longer term of serious amenity harm from odour emissions effecting people living in the area, and particularly those within the nearest group of dwellings lying to the North."
"This is an argument that is superficially attractive. But it is dependent on the underlying assumption that, in relation to the likely impact of the pollutants to which the 2000 Regulations apply, primacy must be accorded to the judgment of the Regulator above that of the planning authority. I can see no basis for such an assumption, and it does not appear to me that the passage from paragraph 10 of PPS 23 that I have quoted above provides support for it. It would effectively mean that, unless it was clear to the planning authority that the plant could never achieve a Permit (cf Gateshead per Gladwell LJ at 359), the potential impact of pollutants could never enter into its consideration of whether planning permission should be granted. The thrust of paragraph 10 is that planning authorities should focus on the impacts rather than the control of emissions, not that they must subordinate their judgment on the impacts to those of the pollution control authority. I therefore reject Mr Wadsley's contention that it was not open to the Inspector to conclude that the impact of the dust would be seriously adverse".
"Future improvements in odour control can reasonably be expected, particularly by the installation of a new condenser and routing of gases through the boiler. The Statement of Common Ground between Mr Green and Mr Clayton indicated that the removal of the non-condensables fraction would significantly reduce the biofilter load with an expectation that outlet odour would be reduced ..."
1. THIS JUDGMENT IS SENT TO THE PARTIES ON THE STRICT UNDERSTANDING THAT THE PARTIES TREAT ITS CONTENTS AS CONFIDENTIAL UNTIL IT IS HANDED DOWN.
2. THE PARTIES SHOULD ENDEAVOUR TO AGREE THE FORM OF THE ORDER AND ANY OUTSTANDING ISSUES AS TO COSTS. IF THEY DO SO AND CONSENTS ARE LODGED IN THE FORM OF AN ORDER FOR APPROVAL, NEITHER PARTIES NOR REPRESENTATIVES NEED ATTEND COURT ON THE DAY FIXED FOR HANDING DOWN THE JUDGMENT.
3. IF THE PARTIES CANNOT AGREE OUTSTANDING MATTERS, THEY MUST ATTEND COURT ON THE DAY FIXED AND FILE AND SERVE AT LEAST 48 HOURS BEFOREHAND ANY COSTS SCHEDULES OR OTHER DOCUMENTS UPON WHICH THEY ARE LIKELY TO RELY.