Steven Howard & Justine Bennett v Wigan Council Morris Homes Ltd (Interested Party)

JurisdictionEngland & Wales
JudgeMr Justice Supperstone
Judgment Date18 December 2014
Neutral Citation[2014] EWHC 4296 (Admin)
Date18 December 2014
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/1407/2014 & CO/3730/2014

[2014] EWHC 4296 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mr Justice Supperstone

Case No: CO/1407/2014 & CO/3730/2014

Between:
Steven Howard & Justine Bennett
Claimants
and
Wigan Council
Defendant

and

Morris Homes Ltd
Interested Party

Matthew Dale-Harris (instructed by Richard Buxton Environmental & Public Law) for the Claimants

Jonathan Easton (instructed by Wigan Borough Council – Legal Services) for the Defendant

Sasha White QC (instructed by Gateley LLP) for the Interested Party

Hearing dates: 11–12 December 2014

Mr Justice Supperstone
1

In CO/3730/2014 (which has been referred to as "Claim 2") the Claimants challenge the Defendant's decision made on 27 June 2014 to grant full planning permission for application reference number A/14/79273 to erect 39 dwellings and associated access and landscaping on land to the south of 43/44 Herons Wharf, Appley Bridge, Wigan ("the site").

2

The sole remaining issue in Claim 2 is whether the screening opinion produced by the Defendant on 7 May 2014 that the proposal did not comprise EIA development for the purposes of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 ("the 2011 Regulations") was flawed.

3

In that screening opinion Mr Foster, the Defendant's Principal Planning Officer, noted that it is agreed that the proposed development falls under Schedule 2 due to its size and nature and he then proceeded to analyse the environmental effects under the criteria laid out in Schedule 3. He stated under "Characteristics of development" in a section on "pollution and nuisances":

"The history of the site could potentially give rise to issues surrounding ground contamination. The site has been previously remediated as part of application A/00/ 52569 and a detailed site investigation with full remediation strategy has been submitted. Subsequently, further assessments of the site, including Phase I and Phase II studies, and additional assessment in relation to potential anthrax contamination have been carried out. This assessment remains ongoing at the present time; however, there is no information to suggest that this threat is significant and not capable of appropriate remediation. The Environment Agency and Public Health England have been in receipt of the assessments, and whilst the EA require further confirmation, this is capable of resolution through the topic specific assessment presently being conducted. Similarly, present expert analysis does not suggest significant contamination risks in relation to groundwater and the adjacent canal."

4

Under "Characteristics of the potential impact" Mr Foster stated, inter alia, that the magnitude and complexity of the impact is likely to be minor; and whilst there may be some environmental impacts from the development these will be localised and are capable of being adequately mitigated.

5

Mr Foster concluded, so far as is material, as follows:

"Having regard to the previous site usage, specific consideration has been given to potential site contamination issues and the effects of site preparation and final development on the future occupiers of the site and the surrounding environment and built up areas. However, any identified contamination would not of itself indicate the need for environmental impact assessment.

Any such adverse impacts are likely to be localised and capable of adequate mitigation. Assessments already undertaken indicate that this aspect can be appropriately dealt with through the submission of detailed, specialist reports.

Furthermore, there are no significant inter-related impacts which would require a wider reaching analysis of the contamination issue.

It is therefore considered that the screening opinion of the local planning authority is that this proposal does not comprise EIA development."

6

This approach was reported to the Committee in the Officer's report for the meeting on 24 June 2014. The report included the following on land contamination:

"A specific issue has been raised by an objector that anthrax spores may be present on the site and have the potential to cause serious harm to health. The intrusive site investigations did not find any evidence to support this claim. As a result of this claim the Council commissioned an independent assessment of the history of the site to examine the likelihood of anthrax being present. Professor Sally Sheard of the University of Liverpool, supported by Public Health England … concluded that the risk of anthrax being located below the site in large enough quantities to cause harm to human health is minimal given the inspection regime at the former factory from 1885. No anthrax was discovered in any of the most recent soil samples submitted for analysis and Public Health England conclude risk to construction workers and local residents is very low.

It is therefore evident that the risk of anthrax being located below the site in large enough quantities to cause harm to human health is minimal.

The main contaminant found on the site is asbestos, with one hot spot of arsenic also being identified. As part of the application a full remediation strategy has been submitted that outlines measures to protect the future occupiers and existing residents. These measures are the removal, where necessary, of the asbestos and arsenic contaminated soil followed by the introduction of a 600–750mm capping layer that includes a 150mm anti-dig layer. As part of the previous application on the site a soil cap of 300mm was put in place across the site and some limited remediation was carried out appropriate for its then use as open space.

A condition will be included on the decision notice to ensure that the works are being carried out in accordance with the remediation strategy and it is therefore considered that the proposal complies with the requirements of Policy 17 of the Core Strategy and Policy EV1A of the Replacement Wigan UDP."

7

The report noted that the Environment Agency had no objections subject to conditions being included on the decision...

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3 cases
  • Steven Howard and Justine Bennett v Wigan Council Morris Homes Ltd (Interested Party)
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 27 February 2015
    ...on those issues, namely ground 1 in claim 2 and claim 1. 11 On 18 December 2014, I handed down judgment on the two claims ( [2014] EWHC 4296 (Admin)). I found ground 1 in claim 2 not to be arguable and accordingly permission was refused and I dismissed claim 2 (see paragraph 16). That bein......
  • Steven Howard and Justine Bennett v Wigan Council Morris Homes Ltd (Interested Party)
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 26 February 2015
    ...judgment dismissing both claims, and just pausing there, if I may, for a moment, that judgment bears the neutral citation number [2014] EWHC 4296 (Admin), and, taking the matter shortly, I said, at paragraph 16, in conclusion: "In my judgment this ground [that being ground 1 of claim 2] of......
  • Steven Howard & Justine Bennett v Wigan Council Morris Homes Ltd (Interested Party)
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 15 December 2015
    ...grounds of challenge, namely Claim 1 and Ground 1 of Claim 2. On 18 December 2014 I handed down judgment on the two claims ( [2014] EWHC 4296 (Admin)). I found Ground 1 of Claim 2 not to be arguable and accordingly permission was refused, and I dismissed Claim 2 (see paragraph 16). That bei......

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