Abattoir storage tank decision quashed due to flawed reasoning

A decision by an inspector (DCS No. 400-007-511) to uphold and enforcement notice requiring the removal of a tank storing waste water from an abattoir in Essex was quashed by the High Court because the inspector had failed to have regard to comments from the Environment Agency (EA).

The tank had been built without planning permission and the local planning authority investigated the matter after receipt of complaints from local residents regarding adverse odour. The EA produced a report which confirmed that odour levels had been unacceptable on a number of occasions but recommended that fitting a cap on the tank would mitigate the effects. A subsequent planning application was refused and an enforcement notice issued. In supporting the council the inspector decided that in the absence of expert evidence from the appellant she was unable to conclude that capping the tank would solve the problem. She also concluded that allowing the tank to remain on the land would not achieve the requirements of the notice to restore it to its former condition.

Mr Justice Collins stated that the relevant issue was whether the odour could be mitigated to an acceptable level. The EA had expertise in this area which the inspector should have appreciated and it was obvious that without capping it would give rise to some odours which were harmful to amenity. It was difficult to see the judge opined, what additional expert evidence was required given that the EA had prepared a report into the issue and the inspector had therefore erred in not placing greater weight on the conclusions of the EA which had formulated a solution.

In addition the court held that the inspector should have given consideration to allowing the tank to be retained but used for some other purpose. The appellant could have used it as part of his agricultural activities which would not give rise to any adverse odour emissions. The inspector should have distinguished between its construction and use. Since it was only the use which was at issue the inspector should have granted permission for it to be retained.

Humphreys v Secretary of State for Communities and Local Government

Date: 24 November 2015

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