Category: Opinions | November 09, 2020
Intensification and contamination in granting planning permission (Smith v Castle Point Borough)
The issues before the Court of Appeal were whether the local planning authority had failed to consider issues of intensification of use, contamination and green belt issues as part of a planning application in granting planning permission for a five-metre-high concrete panel boundary wall, running along two sides of an existing scrapyard and waste facility in Essex. The planning permission was initially challenged by way of judicial review in the High Court. That challenge was dismissed. The Court of Appeal also dismissed the attempt to overturn the planning permission denying the Appellant a remedy, holding that the appeal failed on every level. However, the Court of Appeal stated that, depending on the facts, the Appellant may have a private law claim in trespass or nuisance or he may raise complaints with the Environment Agency, with the possible sanction of a judicial review claim against that agency in the event of unjustified inaction.
What are the practical implications of this case?
This case is important as it emphasises the functional separation between the planning regime and the contaminated land/pollution control regimes. Planning focuses on whether the proposed development is an acceptable use of land rather than the control of processes or emissions where these are subject to separate pollution control regimes.
The case is also important for practitioners as it distinguishes the case on the facts from Penwith DC v Secretary of State for the Environment (1977) 34 P & CR 268. In order for a planning condition to be imposed, it must meet a threefold test: (1) it must be for a planning purpose and not for an ulterior purpose; (2) it must fairly and reasonably relate to the development permitted; and (3) it must not be so unreasonable that no reasonable planning authority could have imposed it. In Penwith, an extension to a factory was intended and designed to intensify operations on the existing site. Accordingly, the imposition of new planning conditions on the existing site related to the development (the extension) which was being permitted. Here, it was unclear just how the boundary wall would cause intensification of the use of the scrapyard. There was therefore no basis on which a restriction on the existing use of the entire site in terms of the height or intensification of scrap storage could properly be related to the proposed development in the form of the boundary wall, such as to meet the test for imposing a planning condition.
What was the background?
The Benfleet Scrap site, next to green belt land between Basildon and Southend-on-Sea, was granted planning permission by the Respondent, Castle Point Borough Council, for a scrapyard and waste facility in 2002. No planning condition as to the height of the storage was included, although the waste management licence specified that no waste material could be stored or stacked to a height greater than 5 metres.
The Appellant and local landowner, Glenn Patrick Smith, objected to the planning application and subsequent planning permission asserting that the increase in the height of the boundary wall would implicitly allow a material intensification of the use the of the site and that the land concerned was contaminated. A Soil Contamination Assessment was submitted in support of that assertion.
The Appellant challenged the planning permission by way of judicial review in the High Court. The High Court dismissed that challenge. The Appellant brought a subsequent challenge in the Court of Appeal, but the Court of Appeal also dismissed that challenge.
What did the court decide?
The Court of Appeal dismissed the appeal.
Referring to local Technical Guidance for Land Affected by Contamination as well as the relevant sections in the National Planning Policy Guidance and the National Planning Policy Framework, the Court of Appeal concluded that there was no need for contamination to be assessed. The wall was simply too incidental a development to require it, unlike a housing estate which is a proposed new use of land, for example.
The Court of Appeal also found that it was and remains wholly unclear just how the proposed development (the wall) would or might cause intensification of the use of the scrapyard site. Recent photographs, taken since the date of the report, did show materials in places leaning against or overtopping the wall above of a height of 5 metres. But that, though a regrettable breach of the environmental permit, does not begin to justify an assertion that there would be occasioned, by reason of the boundary wall, similar such use or other intensification over this 0.86 hectare site. At no point did the planning officer’s report state that the running of the scrapyard could not be a material consideration for planning purposes, says the judgment. But it was not material in this context, being a matter to be resolved by the Environment Agency. Any complaint about pollution should be referred to the Environment Agency. Planning focuses on whether the proposed development is an acceptable use of land rather than the control of processes or emissions where these are subject to separate pollution control regimes.
There was therefore no basis on which a restriction on the existing use of the entire site in terms of the height or intensification of scrap storage could properly be related to the proposed development in the form of the boundary wall, such as to meet the test for imposing a planning condition. Also, no express reference to intensification was required within the officer’s report in order to demonstrate that the Appellant’s objections in that regard had been taken into account.