Hopkins Developments Ltd v First Secretary of State and North Wiltshire DC

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr George Bartlett QC
Judgment Date10 November 2006
Neutral Citation[2006] EWHC 2823 (Admin)
Docket NumberCase No: CO/431/2006

[2006] EWHC 2823 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Before:

Mr George Bartlett QC

(Sitting as a Deputy High Court Judge)

Case No: CO/431/2006

Between
Hopkins Developments Limited
Claimant
and
(1) The First Secretary of State
(2) North Wiltshire District Council
Defendants

Peter Wadsley (instructed by Tyler Law Solicitors ) for the Claimant

Charles Bourne (instructed by Treasury Solicitor ) for the Defendant

Mr George Bartlett QC

Introduction

1

This is an application under section 288 of the TCPA 1990. The claimant challenges an inspector's decision dismissing an appeal against the deemed refusal of an application for planning permission for development described as the erection of a concrete plant with associated batching offices and vehicle parking, the erection of a new industrial unit with associated parking and a new parking area for an existing unit. The appeal was conducted by written representations.

2

The application for permission was made in respect of a site, unit 1, on the Porte Marsh Industrial Estate at Calne in Wiltshire, an established and growing industrial estate. The inspector received written representations from the claimant, as appellant, and the North Wiltshire District Council, who had resolved the day after the appeal was made to refuse planning permission. Ninety-five letters of objection had been sent to the council, from residents, the local civic society and local businesses. A number of residential properties, in a road called Oxford Road, back onto the site. Recognising that dust was a concern, the claimant had put forward measures to deal with it, and the council's Environmental Health Officer had stated that these satisfied her concerns. The council opposed the appeal on the basis that, although the site was in principle suitable for new class B2 development, the proposed development failed to meet the requirements of policy RE17 of the adopted North Wiltshire Local Plan (2001) and the guidance contained in PPS23, which requires that new employment development should not have a serious effect on the amenities of the area.

3

Policy RE17 (which is entitled "Employment policy in the towns") provides that businesses, industrial and storage development within the framework of the towns, as defined on the proposals map, will be permitted subject to a number of requirements, among which are:

"2. The design harmonising with the appearance of the surroundings buildings and the character and appearance of the area in general;

3. There being no serious adverse effect on the amenities of the area…;

5. Not giving rise to noise, smell, or other nuisances or pollutants that are likely to have a seriously detrimental effect on any residential or other sensitive properties or areas."

4

The inspector in para 2 of his decision said that he considered that the main issue in the case was "the effect of the proposal on the amenity of the properties in the locality, particularly due to noise and dust and also due to the visual impact of the new building intended as a noise screen." In his reasons for dismissing the appeal, the inspector dealt with traffic, dust, noise and visual impact. He said that the lorry traffic associated with the proposal would not cause a significant increase in danger from traffic or environmental pollution and the number of additional heavy goods vehicle movements through the industrial estate would be unlikely to be significantly disturbing for those who lived nearby.

5

On dust, the inspector concluded that the site and general surroundings would suffer from a significant increase in dust, which would affect several properties in Oxford Road backing onto the site and would also affect any neighbouring industrial users whose operations depended on relatively dust free air. On noise the inspector said that the noise assessment submitted by the appellant was unclear in certain respects and that the evidence on noise that was before him reinforced his view that the site was unsuitable for the proposal as described. On visual impact he said that in his opinion, the proposed 9m high building would significantly harm the amenities of the occupants of the adjoining houses in Oxford Road and would seriously erode the enjoyment of their rear gardens. He concluded that the proposal would not comply with policy RE17 due to the effects of dust from the operations and the overbearing nature of the new building, meant as a noise screen, on the rear gardens of adjacent houses in Oxford Road. He therefore dismissed the appeal.

6

For the claimant Mr Peter Wadsley seeks to challenge the decision on the basis that the inspector's conclusions on dust, noise and visual impact are in each case vitiated by errors of law or alternatively that inadequate reasons were given for them. The inspector addressed the dust issue as follows:

"8. The appellants stated that the concrete making process is regulated by the Pollution Prevention and Control Act 1999. Moreover, PPS23 advises that planning authorities should work on the assumption that the relevant pollution control regime will be properly applied and enforced. The assessment supplied by the appellants indicates that the dust sources at the site would be primarily the three stone/sand storage bins at the western corner of the site, the hopper used to deliver materials to the conveyor and the concrete mixer building. The Council does not disagree with that assessment. The mitigation systems proposed would result in covering the storage bins when not in use; designing the bins to avoid the wind whip of particles; enclosing the hopper with a ring-spray misting system and plastic curtains at the point of delivery; and enclosing the concrete mixer and fitting it with an air filtration system.

9. However, although the lorries carrying stone and sand should be sheeted when they arrive, I consider that dust would be released as the loads are discharged into the bins and the hopper. The appellants state that 90% of the aggregate deliveries would be directly to the hopper and that the hopper would be undercover. However, I consider that significant quantities of dust would still be created and find its way to the open air. Dust would also be released when the aggregate was moved to the hopper from the ground bins. Some dust may well be suppressed by sprays, but the particles would then be held in water which, after drying out, would be available to be whipped up by the wind and also trapped in vehicle tyres to move around and out of the site. The proposed landscaping scheme would be unlikely to reduce the dust, especially given the time necessary for the shrubs and trees to grow to a height and thickness where they would begin to become effective.

10. Therefore, I consider that the site and the general surroundings would suffer from a significant increase in dust. This would affect several residential properties along Oxford Road which back onto the site where, for example, dust would cause washing to be soiled if hung out to dry in the rear gardens and where dust would spoil the enjoyment of the rear gardens by the occupiers of the houses. In addition, the dust would also affect any neighbouring industrial users whose operations depend on relatively dust free air. In...

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