Planning permission and change of use: R (Smith) v Castle Point BC [2019] EWHC 2019

In R (Smith) v Castle Point BC [2019] EWHC 2019 the Planning Court considered the application of planning policy to proposals to develop land which may be contaminated, but which do not involve a change of use.

The interested party to the claim operated a scrap metal yard. Planning permission for that use had been granted in 2002 and an Environmental Agency licence was in place. The site was on the edge of a trading estate, with other industrial properties to one side and green belt land to the other. The claimant owned some of the land adjacent to the site and hoped to develop it for residential and other purposes.

In 2018 the interested party applied for planning permission for a 5m high wall around part of the site, with a "buffer zone" outside it. In answer to pro forma questions on the application form, the company stated that the land in question was not known or suspected to be contaminated, and the proposed use would not be particularly vulnerable to the presence of contamination.

The claimant objected to the application, asserting that the land was contaminated, and that as a matter of law the application required contamination reports so that appropriate remediation could be considered. The application did not contain any such reports, and the claimant's concerns were addressed only briefly in an officer's report prepared by the defendant planning authority. Planning permission was subsequently granted without conditions.

The claimant submitted, inter alia, that the defendant had erred in its approach to contamination. In particular, by treating the allegation of contamination in a summary way, it had failed to take a material consideration into account.

CMG Ockelton dismissed the claim. In doing so, he rejected the claimant's assertion that the planning application was implicitly intended to facilitate intensification of the site's use. The application was for permission to build a wall on the boundary of an existing and functioning scrapyard. It fell to be considered on its own terms. Further, the claimant did not seem to be suggesting there was a free-standing duty to take contamination into account in circumstances where the relevant guidance did not apply. The issue therefore turned on the proper interpretation of the guidance documents, and whether their requirements applied to this scenario.

The claimant relied on three guidance documents: a) "Land affected by Contamination: Technical Guidance for Applicants and Developers" (2007), found in Planning Policy Statement 23 as in force in 2007, and which had been adopted by the defendant; b) "Land affected by Contamination", Planning Practice Guidance in force at the date of the application; c) PPS 23 itself, which was referred to on the defendant's website.

While the 2007 Technical Guidance contained requirements for at least a desk study, site walkover, and preliminary risk assessment, CMG Ockelton found that it was aimed at bringing derelict land back into use. It was not intended to cover industrial land continuing in use (para. [14]). Similarly, it was clear that the PPS 23 guidance was concerned with applications for change of use; there was no suggestion that it was intended to apply to incidental developments on a site with an established use (para. [18]).

This view was confirmed by the 2014 Planning Practice Guidance, which showed that the requirements around contamination assessments and reports "are intended to be imposed only if the proposed development […] itself poses the risk. Obviously that would be the case if contaminated land were to be developed by certain changes of use. Equally obviously, the possibility of the construction of a wall around a scrapyard does not itself give rise to the risks in question" (para. [23]).

The judge summarised his conclusion as follows (para. [24]):

"This was not a case where the defendant had to undertake the assessments and make the reports required where there is a proposed change of use, or a proposed development creating a risk of contamination. On the contrary: the defendant correctly followed the guidance, which had the effect that it should assume the pollution control regime (to which the [officer's] report specifically referred) would be operated and enforced, treating as planning matters only such things as were not addressed by other regimes; and, having appreciated that the proposal to build a wall was not said itself to be going to result in unacceptable risks (and realistically was incapable of doing so), the defendant proceeded to decision."

The decision is a useful illustration of the limits of the planning process in identifying and remediating contaminated land. As noted in the text, planning law is concerned with ensuring that the risks consequent on developing and changing the use of contaminated land are properly identified and addressed. It does not apply where, as in this case, the proposal does not involve a change of use and could not realistically result in any risk of contamination. In such a scenario, potential contamination will most likely be addressed by the relevant licensing regime or, in appropriate cases, Part IIA.

Text reference para 21-01