Legal viewpoint - Decision held flawed on failure to take advice

An inspector's decision to uphold an enforcement notice requiring removal of an unauthorised waste water storage tank at an Essex abattoir has been quashed by the High Court.

The local planning authority had investigated the matter after residents complained about odour. The Environment Agency produced a report confirming that odour levels had been unacceptable on several occasions, but recommended that fitting a cap on the tank would mitigate this.

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 could not be sure that capping the tank would solve the problem (DCS Number 400-007-511).

Mr Justice Collins held that the relevant issue was whether odour could be mitigated to an acceptable level. The inspector should have appreciated the agency's expertise in this area, he ruled. He found it difficult to see what additional expert evidence was required, given that the agency had prepared a report on the issue.

The inspector had erred by not placing greater weight on the agency's conclusions, the judge held. He also concluded that she should have considered allowing the tank to be retained but used for some other purpose, such as agricultural activity, that would not give rise to adverse odour emissions.

Case: Humphreys v Secretary of State for Communities and Local Government; Date: 24 November 2015; Ref: CO/3254/2015

Jamie McKie is a senior associate at Dentons.

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