England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Birmingham Civil Justice Centre 33 Bull Street, Birmingham B4 6DS
		16th December 2009

His Honour Judge McKenna:

Introduction

1. This is the hearing of the Appellant's appeal under Section 289 of the Town and Country Planning Act 1990 against the decision of the First Respondent's Inspector dated 12 February 2008 to uphold, with corrections and variations, an enforcement notice in respect of land at Senna Green Farm, Senna Lane, Antrobus, Northwich, Cheshire CW9 6BE ("the Appeal Site") alleging a breach of planning control in respect of the unauthorised change of use of land from agricultural use to a mixed use of agricultural and the processing of animal by-products within Use Class B2.
2. The Second Respondent is the Local Planning Authority with responsibility for the area within which the Appeal Site is situated.
3. Permission to proceed with the appeal was granted by Lloyd-Jones J on 6 June 2008.

Background

4. On 15 April 2005 the Second Respondent issued an enforcement notice ("the EN") in respect of the Appeal Site alleging a breach of planning control namely:

"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".

5. The Appellant together with Rosemary Harrison and Mark Harrison appealed against that notice under Section 174 of the Town and Country Planning Act 1990 ("the 1990 Act") as amended by the Planning and Compensation Act 1991 ("the 1991 Act"). The Appellant's appeal proceeded on the grounds set out in Section 174 (2) (a), (d), (f) and (g) of the 1990 Act. By virtue of Section 177 (5) of the 1990 Act, as amended by the 1991 Act, the Appellant was deemed to have made an application for planning permission in respect of the matter stated in the EN as constituting a breach of planning control.
6. An Inspector, Mr Alan Upward BA (HONS), MCD MRTPI ("the Inspector") determined the appeal. The inquiry exceeded its original time allocation of 25 to 28 September 2007 resuming on 28 to 30 November 2007. The Inspector issued his decision letter ("DL") on 12 February 2008. A copy of the DL is at pages 38 and following in the bundle. In the DL, the Inspector amended the allegation of breach of planning control to state "without planning permission, the change of use of the land from agriculture to a mixed use of agriculture and the processing of animal by-products would be Class B2". He also amended the area covered by DL as can be seen on the plan at page 62 of the bundle. He allowed the appeals in part on ground (f) and (g) but otherwise upheld the EN.
7. This appeal is brought in respect of the decision under the ground (a) Appeal only and the deemed application for planning permission. No issues arise in respect of the appeals under the grounds (d), (f) and (g).
8. The relevant section of the EN relating to the ground (a) appeal appears at paragraphs 89 to 122. The Inspector found that the principle of the use was acceptable in the green belt and that consideration should not proceed on the basis of the use being subject to the negative green belt presumption. He then went on to identify the main issues as being:-

•     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.

9. The Inspector's overall conclusions are summarised at paragraph 122 of the DL as follows:-

"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".

10. In order to reach his decision in respect of the amenity issue the Inspector had to consider the relationship between the planning regime and the Integrated Pollution Prevention Control ("IPPC") regime namely the Pollution, Prevention and Control Act 1999 and the Pollution, Prevention and Control Regulations 2000 together with relevant Government advice in respect thereof.
11. The Government advice on the relationship between the planning regime and the IPPC regime is contained in Planning Policy Statement 23: Planning and Pollution Control ("PPS 23"), relevant extracts of which for the purposes of this appeal are as follow:-

"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

12. The Appellant contends that the Inspector erred in his approach to the relationship between the planning regime and the IPPC regime. In particular the Appellant contends:

(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 [1987] 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^[1] 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."

13. In short, the position of the Respondents is that:

(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

14. At paragraphs 94 to 110 the Inspector addressed the issue of odour control in detail. He addressed the evidence of the impact of the actual operation of the unauthorised use over the preceding years, the extent to which such operations had been successfully controlled by the available pollution control regimes and the extent to which the IPPC regime as evidenced before him would effectively control such odours in the context of the history of the problems of the site and the available evidence as to what controls were likely to be imposed. Significantly he concluded at paragraph 96:-

"That the commencement of commercial rendering after 2001 brought about serious amenity harm on a regular basis through odour travel from the site".

15. At paragraph 97 he considered that:

"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."

16. The Inspector referred to the Guidance contained in PPS 23 as to the complementary role of the Planning and Pollution Control systems at paragraph 99 in these terms:-

"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.

17. He continued as follows:

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."

18. At paragraph 105 of the DL the Inspector concluded that:-

"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."

Discussion

19. PPS 23 at paragraphs 2 and 10 describes the pollution control regimes and planning regimes as complementary. Planning system "plays a key role in determining the location for development" (paragraph 2) particularly in respect of development which "may give rise to pollution" (paragraph 10). The planning system has to determine whether the development itself is an acceptable use of land and the impact of those uses. This to my mind is distinct from the IPPC process which "controls the processes or emissions themselves". PPS 23 advises that planning decision makers "work on the assumption that the relevant pollution control regime will be properly applied and enforced." 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.
20. It cannot be right in my judgment that paragraph 10 simply says that the planning system must assume that no pollution issues will arise. Indeed, in the case of Hopkins Developments Ltd -v- (1) The Secretary of State (2) North Wiltshire District Council [2007] Env LR 14 George Bartlett QC sitting as a Deputy High Court Judge upheld an Inspector's decision which decided that the amenities of the area and the local residents would be seriously harmed by dust emissions. In the High Court challenge, it was argued that the Inspector had to assume the proper application of the pollution control regime and accordingly he erred in law in deciding that there would be serious harm to the amenity of the area by reason of dust emissions. The Court rejected that contention at paragraph 15 in the following terms:-

"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".

21. The thrust of the decision in Hopkins therefore, a decision which of course is persuasive but not binding on me, is that the planning decision maker was entitled to reach his own conclusions as to the impact of the proposed development on amenity and whether the site under consideration was the appropriate location for the proposed development. The fact that the impact might be capable of being regulated under a pollution control regime did not necessarily mean that the only possible option available to an Inspector was to leave everything to that regime. If the planning decision maker considered that there might be adverse consequences because of the effects of the proposed development on amenity and/or issues as to the appropriateness of locating the development of the site in question, he was entitled to have regard to such matters as material considerations in making his decision on the planning merits of the proposed development.
22. This approach to my mind accords with a fair reading of PPS 23 paragraph 10. Under the ground (a) Appeal the question of the acceptability of the site for the proposed use was the issue and the Inspector had to make a decision on planning grounds as to whether the location of the site was appropriate. To do so it seems to me he had to have regard to all material planning considerations including the site's proximity to other users and in reaching his planning judgment about the acceptability of the use he correctly directed himself that he needed to make the decision on the assumption that the pollution control regime would be properly applied and therefore there can be no doubt to my mind that the Inspector did have regard to the guidance. However, he was entitled to have regard to the evidence which he heard as to the effect of the use when it had operated without the benefit of planning permission. He did not simply accept that evidence but specifically acknowledged the scope for improvement when further steps were taken to comply with pollution controls and he clearly took into account the fact that the IPPC Permit had been issued in 2007. He nevertheless concluded that the close proximity of the site to residential developments would continue to cause problems. This was a judgment which was reasonably open to him on the evidence given that there was compelling evidence before him that there had been odour problems for many years and that those problems had existed notwithstanding the availability of the pollution control regime. He was not satisfied that the problems would be eliminated having regard to the specific limitations and areas of uncertainty which he himself identified during the course of his analysis. In so doing he undertook a realistic and fact specific assessment of the amenity impact of the proposal which he was entitled to do in the light of the controls that would be applied under the pollution control regime. In doing so he did not abdicate responsibility to decide whether the location in question was appropriate and what the effects of the development would be and his approach closely matched the approach of the Inspector in the Hopkin's case an approach which was to my mind, rightly upheld by the High Court. I am not persuaded by the Appellant's argument that the concluding sentence of paragraph 99 constituted an attempt by the Inspector in some way to distance himself from the guidance.
23. What of the second ground of complaint namely that the Inspector failed to follow or to indicate that he was minded to depart from the Statement of Common Ground. To all intents and purposes the basis for this complaint is one sentence from the Statement of Common Ground which I have already referred to earlier in this Judgment and which should be read as a whole. When put into that context, it is clear that Mr Green and Mr Clayton were agreed not only that the alterations would improve the existing situation but also that it would take some months to assess whether this was acceptable and that it was possible that the upgrade system would be inadequate and that a further BAT assessment would be required to consider the installation of a thermal oxidiser.
24. To my mind there is no basis for arguing that the Inspector failed to follow the Statement of Common Ground. In the first instance, the Inspector specifically referred to the joint position between the experts at paragraph 106 in the DL when he said as follows:-

"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 ..."

25. Rather than his decision involving any departure from the joint position, what the Inspector did was to exercise his overall planning judgment on the broader issue of the suitability of the Appeal Site for the proposed use.
26. He took into account the level of complaints in the past and the extent to which these issues were realistically capable of being addressed assuming that the IPPC regime would be properly applied and enforced. He appreciated that "expectation" as used in the Statement of Common Ground was not intended to and did not mean that it would be achieved. It is clear from paragraph 106 that the Inspector clearly understood that emissions would be "reduced" but not necessarily eliminated hence the need for the thermal oxidiser was a distinct possibility. Moreover, the emissions from this part of the process were not the only source of odour problems as recognised in the Statement of Common Ground. In concluding that the location was unsuitable he was not to my mind contradicting the agreed position of the experts. Rather he was recognising that there was no certainty as to what the controls in the pollution regime would require and over what time period and he was understanding the limitations of their agreed position and so he reached his own judgment as to whether the location was acceptable, a Judgment which he was entitled to come to on the material before him.

Conclusion

27. It follows in my judgment that this appeal should be dismissed. I trust that between them, Counsel for the parties will be able to agree on the draft of the order and as to the appropriate cost consequences.
ADDENDUM

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.

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