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Insights // 26 April 2021

Court of Appeal Explores the Relationship Between Planning and Contaminated Land and Pollution Control Regimes

Partner Karen Jones, head of our Planning & Environmental Law team, looks at the case of Smith v Castle Point Borough Council [2020] (EWCA Civ 1420).

In October the Court of Appeal handed down judgement in the case of Smith v Castle Point Borough Council [2020] (EWCA Civ 1420). An order was sought to quash a planning permission granted by Castle Point Borough Council in November 2018.

Permission was granted to Benfleet Scrap Limited, operator of a scrap metal and waste recovery yard, for a boundary wall to replace fencing which the Court described as ‘’a rather rough and ready assortment, including in places a chain-link fence, not always well maintained, two metres in height.’’ The site was authorised by planning permission and waste management licence but it seems clear that over the years there had been instances of spillage of substances and intrusion of waste objects at and over the boundary. Mr Smith was the neighbouring landowner. The boundary wall proposed was to a height of five metres.

The case explores the relationship between the planning and pollution control regimes. It re-establishes the principle that those regimes are separate and that one regime is entitled to assume that the other will be operating effectively to deal with its area of influence.

Mr Smith argued that the Council had failed to consider contamination issues in the area of the proposed boundary wall, including an increase in storage height that would be associated with the construction of the wall. In essence his arguments were based on an analysis of the officer’s consideration of contamination and pollution control with the associated planning issues. The Court found that the various guidance documents were not directed at this type of situation and that no further assessment of contamination was required.

The Court considered in some detail the officer’s report as the favourable decision was based on reasons set out in that report. The officer dealt with the allegations that the scrap yard was not run in a very satisfactory manner and caused pollution by commenting that the running of the scrap business was not a matter for consideration in the context of the application for the boundary wall. The officer also remarked that if the business was causing environmental pollution the correct action would be to report that to the Environment Agency (EA). The Court agreed and referred to paragraph 183 of the NPPF which reiterates that planning decisions should be focused on whether development is an acceptable use of land rather than dealing with the control of processes or emissions where those would be subject to separate pollution control regimes.

The Court found it was appropriate for the officer to have regard to other regimes available, such as the environmental protection legislation and permitting regulations. The officer was justified in referring to making any complaint about pollution to the EA. That was a relevant matter and criticism of the officer for deferral to other agencies was not justified.

The Court also said that the photographs produced showing materials over topping the wall above a height of five metres was a regrettable breach of the environmental permit, but they did not consider it justified an assertion that there would be other intensification at the site. The contaminated land and breach of permit control matters did not need to be dealt with by the planning officer in considering an application for development.

The Court were of the opinion that to take issue with the officer’s report on these grounds was not a meritorious claim.

Interestingly, the Court concluded that their judgement did not leave Mr Smith without remedy. They stated that he may raise complaints with the EA with the possible sanction of reviewing the Agency’s decision in the event of unjustified inaction. It seems the Court considered Mr Smith had attacked the operation of the scrapyard through the wrong mechanism.

For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800. 

This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice. A similar article was first published in Waste Planning Magazine.

Karen Jones

Karen Jones

Partner, Planning & Environmental Law

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