The Court of Appeal Dismisses Intensification and Contamination Appeal in the Green Belt

Last week the Court of Appeal handed down judgment in Smith v Castle Point Borough Council [2020] EWCA Civ 1420. The appeal concerned a decision by the Respondent local planning authority to grant 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 Appellant argued, primarily, that the Respondent had erroneously failed to consider alleged issues of intensification and contamination in its decision to grant planning permission. The Appellant also argued that the Respondent had failed to appreciate that it had the power to impose a planning condition restricting the existing operation of the entire scrapyard site and had therefore failed to consider whether such a condition should be imposed in coming to its decision. Davis, Moylan and Dingemans LJJ unanimously dismissed the appeal.

Background

Planning permission for the use of the site as a scrapyard and waste facility had been granted 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 owned land adjoining the scrapyard, which he sought to promote for mixed development, and had submitted a lengthy planning objection. This asserted, amongst other things, 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 (conducted on the Appellant's land immediately beside the proposed boundary wall location) was submitted in support of that assertion.

The Appellant subsequently brought a Judicial Review challenge in the High Court against the Respondent's grant of permission for the boundary wall.  Mr C.M.G. Ockleton, sitting as a Deputy Judge of the High Court, dismissed that challenge (Smith v Castle Point [2019] EWHC 2019 (Admin)).

Contaminated land

In its judgment, the Court of Appeal found that neither the local Technical Guidance for Land Affected by Contamination, nor the relevant sections in the National Planning Policy Guidance or the National Planning Policy Framework, were directed at this type of situation (where the proposed development was a boundary wall), but rather were essentially directed at a proposed new use of land, for example a residential development. Thus, in this situation, no further assessment of contamination, by way of desk-top study or otherwise, was required.

Interaction with the pollution control regime

Further, the officer had been justified in referring to the availability of the right to refer any complaint about pollution to the Environment Agency, which was a relevant matter to the planning decision being taken (paragraph 183 of the NPPF provides that "The focus of planning policies and decisions should be on whether 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). Planning decisions should assume that these regimes will operate effectively…"

Intensification & planning conditions

The Court of Appeal then went on to distinguish the case on the facts from Penwith DC v Secretary of State for the Environment (1977) 34 P & CR 268. As a matter of general principle, in order for a planning condition to be imposed, it must meet a threefold test: it must be for a planning purpose and not for an ulterior purpose, it must fairly and reasonably relate to the development permitted, and 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.

In this case, however, it remained wholly unclear just how the proposed development (the boundary wall) would or might cause intensification of the use of the scrapyard. Although this had been asserted in the planning objection, quite how such an implication should arise had never actually really been explained by the appellant.

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.

Further, 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.

Wording of the planning officer's report

Finally, the Court of Appeal found that officer's report, read naturally and as a whole, did not show that the planning officer had wrongly thought that there was no power at all to impose a condition restricting the operation of the scrapyard. Rather, the officer was indicating that the building of the boundary wall did not, in his planning judgment, provide a justification for or properly relate to a restriction on the wider use of the site.

The case is important and unusual for its exploration of the relationship between the planning and contaminated land/pollution control regimes. However, the court ultimately emphasised the important functional separation between the two.

Daniel Stedman Jones and Tom van der Klugt acted for the successful Respondent.

You can read the full judgment here.