The Town and Country Planning (Environmental Impact Assessment)(
In R (on the application of Wye Valley Action Association Ltd) v Herefordshire Council [2009] EWHC 3428 (Admin) the claimant applied to the High Court to quash a decision by the defendant to grant planning permission for the use of polytunnels to grow soft fruit on an expanse of farmland situated within an area of outstanding natural beauty (AONB). The ground of challenge at the hearing was that the defendant had unlawfully adopted a negative screening opinion.
It was common ground that the development did not fall within Schedule 1 to the regulations. In order to fall within Schedule 2, it would have had to come within the category providing for “projects for the use of uncultivated land or semi-natural areas for intensive agricultural use”. If it did, the defendant would have had to determine whether it was likely to have significant effects on the environment. The defendant concluded, however, that because the land to be covered was already cultivated – a mixture of arable and turf production – it did not fall within the category.
The single question for the court was whether it was correct for the defendant to determine that the development was not a project for the use of a semi-natural area for intensive agriculture. This was a matter of construction of the regulations.
The deputy judge referred in particular to judgments of the European Court of Justice to the effect that the proper approach to construction in such a case as this was one that recognised the wide scope and broad purpose of the directive. He then allowed the claim and quashed the decision to grant planning permission on the basis that the defendant had misdirected itself and made an error of law. Applying the wide scope and broad purpose of the directive in construing the term “semi-natural”, he held that semi-natural land for the purposes of the regulations may be cultivated, and the fact of cultivation did not remove it from this category.
John Martin is a freelance writer
