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Eastern Counties Leather Site - Success Confirmed With Full Award of Costs

Meyric Lewis

The Inspector's decision on part of the historically contaminated former Eastern Counties Leather site (see earlier news item) has confirmed the grant of permission and granted the appellant a full award of costs.

In her costs decision, the Inspector, Ms D J Board BSc (Hons) MA MRTPI, said this:

"4. The Planning Practice Guidance (PPG) advises that costs may be awarded against a party who has behaved unreasonably and thereby caused the party applying for costs to incur unnecessary or wasted expense in the appeal process.

5. The applicants submit that the council had all the information that it needed to address the issues early in the overall planning process. In particular that the applicants demonstrated that the appeal site and scheme is not associated with the tannery. The applicant engaged EPS from an early stage and on the applicants’ behalf they have shared factual information with the Council. The fundamental point being that the information adequately demonstrated that there was no issue with chlorinated solvents and that the hydrocarbon issues could be dealt with by condition.

6. On the issue of groundwater contamination, in spite of its assertion within the statement of case, the Council has not provided any evidence that the appeal scheme would directly lead to contamination of groundwater from chlorinated solvents. The Environment Agency (EA) have throughout the application process requested deep intrusive investigations at the appeal site. However, the EPS investigations demonstrated that neither shallow soils or groundwater were contaminated with tannery solvents. In this context no evidence has been provided to suggest that further investigation would be required.

7. It is clear from the documentation that the Council adopted the approach of the Environment Agency without having due regard for the circumstances of the appeal site. The applicants have provided a desk study and two site investigations with the first report submitted in 2014. In addition the documentation demonstrates that the site history was known to the Council and EA around 2016. The information provided as part of the appeal reinforced these points. Therefore, I agree with the applicants that it was not wholly ‘new evidence’ as the Council suggest.

8. Following consideration of what it describes as the ‘new evidence’ the Council decided not to defend the reason for refusal at appeal. However, based on the information before me it appears that, as the applicant submits, the Council had the necessary information prior to making a decision on the application. In summary therefore, whilst it is reasonable for the Council to apply judgement in decision making this must be supported by proper analysis and evidence. Instead, assertions were made about the effects of the appeal scheme that could not be supported. This has led the applicants to incur unnecessary and wasted expense dealing with this matter on appeal. As a result, I conclude that unreasonable behaviour resulting in unnecessary expense, as described in the PPG, has been demonstrated and a full award of costs is justified."

The full decision can be found here.

Meyric Lewis represented the appellants, Sawston Joinery Limited, instructed by Bob McGeady of Ashtonslegal and ably assisted by the appellant's environmental consultants, Environmental Protection Strategies Ltd,