Harrison v Secretary of State for Communities and Local Government & Anor

Planning and pollution-control regimes are separate but complementary. Planning decision-makers must assume that the relevant pollution-control regime will be properly applied and enforced, but that assumption does not require them to disregard pollution impacts or defer entirely to the regulator. They may assess whether the proposed use is acceptable in its location and consider its likely effect on amenity. Where a use has already operated, evidence of its actual effects, the history of complaints, and limitations or uncertainties in the pollution controls may be material. An inspector may therefore reach a fact-specific planning judgment that a site is unsuitable, even though pollution controls are expected to improve.

The appellant challenged, under section 289 of the Town and Country Planning Act 1990, an inspector’s decision upholding an enforcement notice concerning the unauthorised mixed agricultural and industrial use of land for processing animal by-products.

The inspector dismissed the ground (a) appeal and refused deemed planning permission, principally because continuing odour harm and traffic effects outweighed the advantages of the development. The appellant argued that the inspector had misunderstood paragraph 10 of PPS 23 and had departed without adequate explanation from expert evidence recorded in a Statement of Common Ground. The central issues were the proper relationship between planning and pollution control, and the scope of the inspector’s planning judgment.

1. The appeal was dismissed. The inspector had correctly understood paragraph 10 of PPS 23 as requiring an assumption that the IPPC regime would be properly applied and enforced. That guidance did not require the planning system to assume that no pollution issues would arise.

2. Planning and pollution control have distinct functions. Pollution control regulates processes and emissions, while planning assesses whether development is an acceptable use of land, including its location and effects on amenity. The planning decision-maker need not subordinate that assessment to the pollution-control authority.

3. The inspector was entitled to consider the actual history of the unauthorised operation, including persistent odour complaints and continuing harm, while allowing for expected improvements under the IPPC permit. The identified limitations and uncertainties in the permit justified his conclusion that significant future harm remained likely. This was a realistic and fact-specific planning judgment reasonably open to him on the evidence.

4. The approach was consistent with Hopkins Developments Ltd v Secretary of State [2007] Env LR 14, where the High Court upheld an inspector’s assessment of serious amenity harm from dust despite the availability of pollution controls.

5. The inspector had not departed from the experts’ Statement of Common Ground. He accepted that proposed works were expected to reduce emissions, but was entitled to recognise that reduction did not mean elimination and that further controls might be required. He therefore remained entitled to decide the broader question of the site’s suitability.

The parties were directed to agree the form of order and costs.

The judgment states that permission to proceed with the section 289 appeal was granted by Lloyd-Jones J on 6 June 2008. The appeal was brought against the inspector’s decision dated 12 February 2008. The High Court dismissed the appeal.