Smith v Castle Point Borough Council & Anor

In a planning challenge, whether a matter is capable of being a material consideration is a question of law, but the weight given to it is a matter of planning judgment. A condition attached to a new permission may restrict an existing use only where it serves a planning purpose, fairly and reasonably relates to the permitted development, and satisfies the ordinary reasonableness standard. A delegated officer’s report must be read as a whole. It need not use a particular label if it has addressed the substance of an objection and rationally given it no weight. A boundary wall was not shown to facilitate intensification of an adjoining scrap yard. The appeal was dismissed.

Benfleet Scrap operated a scrap-metal and waste-recovery yard adjoining land in which the appellant was interested. It applied for permission, partly retrospectively, to construct a five-metre boundary wall with a buffer zone. Castle Point Borough Council granted permission by delegated decision on 9 November 2018.

The appellant sought judicial review, alleging failures to consider contamination, intensification, planning history and Green Belt issues, including whether a condition should restrict the existing scrap-yard operation. Mr CMG Ockleton, sitting in the Planning Court, dismissed the claim on 31 July 2019. The Green Belt challenge was not pursued on appeal. The central issue was whether the officer’s report misunderstood the power to impose conditions and failed to address intensification as a material consideration.

1. Appeal dismissed. Davis LJ gave the leading judgment, with Moylan and Dingemans LJJ agreeing. The High Court’s dismissal of the judicial review claim was upheld.
2. Whether a matter is capable of being a material consideration is a question of law. The weight, if any, to be given to it is a matter of planning judgment. A planning condition must serve a planning purpose, fairly and reasonably relate to the permitted development, and not be so unreasonable that no reasonable planning authority could impose it. These principles were supported by the summaries in R (Midcounties Co-operative Ltd) v Forest of Dean D.C [2014] EWHC 3059 (Admin) and Bloor Homes Ltd v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin), and by R (Wright) v Forest of Dean DC [2019] UKSC 53, [2019] 1 WLR 6562.
3. The contamination guidance relied upon was directed principally to proposed land uses where contamination might create a risk, such as residential development. It did not require a desk-top study or further assessment for this boundary-wall proposal. The planning system also operated alongside the Environmental Protection Act and Environmental Permitting Regulations. The report was entitled to identify complaints to the Environment Agency as an available route.
4. There is no general rule preventing a condition attached to new permission from restricting an existing use. The condition must, however, relate to the development permitted. In Penwith DC v Secretary of State for the Environment (1977) 34 P & CR 269, the proposed extension was intended and designed to intensify the existing factory operation, so conditions affecting the existing site related to the extension. The present boundary wall was not shown by evidence to facilitate intensification of the scrap yard. The position was therefore materially different.
5. The report had to be read as a whole. Its statement that operation of the scrap business was not a consideration in the context of this application did not mean that such operation could never be relevant in law. The report summarised the objection, referred to concerns about increased storage, considered conditions, and concluded that none were necessary. It was rationally open to the officer to give no weight to the unsupported assertion that the wall would cause intensification.
6. The court accepted, for present purposes, that objectionable intensification might arise without a material change of use, but left that issue unnecessary to decide. Disagreement with the planning judgment, absent an identifiable legal error, could not ground an appeal. The appellant might pursue private-law remedies or complaints to the Environment Agency, but not the relief sought through this planning challenge.

1. Court of Appeal (Civil Division) — Dismissed the appeal from the High Court’s dismissal of the judicial review claim.
2. High Court of Justice, Queen’s Bench Division (Planning Court) — Mr CMG Ockleton dismissed the judicial review claim on 31 July 2019. Permission to appeal was refused by the judge but granted by Lewison LJ on 12 December 2019.