Smith, R (On the Application Of) v Castle Point Borough Council

Planning guidance on contaminated land generally concerns a change of use or development which may itself create an unacceptable contamination risk. It does not require contamination assessments for an incidental boundary-wall application on an established industrial site where the proposed works create no such risk. Planning authorities may assume that a separate pollution-control regime will be properly applied and enforced.

An officer’s report is read as a whole. It will not be unlawful merely because it does not address every point in forensic detail, particularly where the decision-maker is a professional officer. A condition imposed on an existing use must relate to the development permitted and satisfy the usual necessity and relevance tests. A planning judgment on visual impact will not be disturbed where the report identifies the relevant considerations and reaches an intelligible conclusion.

Benfleet Scrap Ltd operated a scrapyard under an existing planning permission. It applied retrospectively for permission for a 5-metre boundary wall, partly adjoining green belt land. The local planning authority granted permission on the basis of an officer’s report.

The claimant sought judicial review, alleging errors concerning contamination, the site’s planning history and the effect of the wall on the green belt. He argued that contamination reports were legally required, that the authority had failed to investigate restrictions on the scrapyard’s operation, that a condition limiting storage height should have been imposed, and that the visual impact assessment was legally inadequate.

1. Claim dismissed. The authority’s decision contained no error of law.
2. On contamination, the relevant technical guidance, PPS 23 and the 2014 Planning Practice Guidance were directed to development involving a new use or development which itself might create an unacceptable risk. The technical guidance concerned bringing derelict land back into use, while the wider guidance focused on suitability for a new use. The application concerned a wall around an existing scrapyard. The wall itself did not create the relevant contamination risk, so the authority was not required to obtain the reports and assessments relied on by the claimant.
3. The authority correctly treated planning and pollution-control systems as separate but complementary. It could assume that the Environment Agency’s pollution-control regime would be operated and enforced, and consider only matters not addressed by that regime.
4. On planning history, the officer’s report correctly recorded that the previous permission contained no condition limiting storage height. A report for a knowledgeable planning readership is read as a whole and is not unlawful unless it is misleading. The report disclosed an intelligible chain of reasoning and considered whether conditions were appropriate.
5. A condition relating to an existing use may be imposed when permission is granted for development on the site, but it must relate to the development permitted and be necessary, relevant to planning and relevant to that development. The proposed wall was not shown to be intended to intensify the scrapyard’s use. A general anti-intensification condition was unnecessary because a material change of use would require permission, and a 5-metre storage restriction was already imposed by the pollution-control licence.
6. On the green belt, the report identified visual impact as a main issue, considered the relevant local and national policies, recognised that the wall would be visible, and assessed its height, colour, screening effect and appearance. The fact that vegetation had been cleared from adjoining land did not form part of the planning judgment. The conclusion that the proposal was visually acceptable was an evaluative planning judgment that was not irrational or legally flawed.
7. It was therefore unnecessary to consider section 31 of the Senior Courts Act 1981. The claimant’s application for judicial review was dismissed.

This was a first-instance judicial review in the High Court (Administrative Court). Permission had initially been refused on the papers but was granted on limited grounds by Holgate J after a hearing.