Development – Planning control – Moveable poultry units installed on agricultural land – Defendant council concluding that poultry units not subject to planning control since not constituting “development” within section 55 of Town and Country Planning Act 1990 – Whether defendants wrongly interpreting meaning of “development” – Whether failing to interpret that word in light of EIA Directive – Claim allowed
The claimant was an action group set up by local residents to protect the character and environment of the Woolley Valley area of the Cotswolds. The first interested party acquired a site in that area, comprising 20.5ha of agricultural land, on which it installed poultry units within paddocks to house free range ducks. The units, although substantial in size and weight, were not fixed to the ground and were intended to be moved around from time to time. They came in a kit form, based around a structure of metal hoops, and could be assembled on site in a couple of days or dismantled and loaded onto a lorry in a matter of hours.
After receiving complaints about activities on the site and conducting investigations, in 2010 the defendant council served an enforcement notice and stop notice in respect of the excavation of soil and surface materials from the land and the alteration of levels. However, they concluded, in an enforcement delegated report, that no enforcement action could be taken against the poultry units and no environmental impact assessment (EIA) could be required in respect of them since they were chattels, not buildings, and did not amount to “development” within section 55 of the Town and Country Planning Act 1990.
The claimant applied for judicial review of the defendants’ decision on the poultry units. It contended that the defendants had erred in their approach to “development” and had failed to interpret section 55 of the 1990 Act in such a way as to give effect to Council Directive 85/337/EC (the (EIA Directive).
The secretary of state for communities and local government took part in the proceedings as the second interested party and supported the claimant’s legal analysis.
Held: The claim was allowed.
(1) The defendants had misdirected themselves in law in their interpretation and application of the term “development” in section 55 of the 1990 Act by taking too narrow an approach to the meaning of that term. The wide definition of the term “building”, in section 336(1) of the 1990 Act, which included “any structure or erection”, could cover structures that would not ordinarily be described as buildings: Skerritts of Nottingham Ltd v Secretary of State for the Environment, Transport and the Regions (No 2) [2000] 2 PLR 102 and Hall Hunter Partnership v First Secretary of State [2006] EWHC 3482 (Admin); [2007] 2 P&CR 5 applied. The defendants should have considered carefully whether a poultry unit was an erection or structure within that section, particularly bearing in mind the substantial size and weight of each unit. The fact that the units were capable of being moved around the site did not preclude them from being erections or structures; an object could be a building in planning law without being incorporated in the land as part of the realty: Barvis Ltd v Secretary for State for the Environment (1971) 22 P&CR 710; 219 EG 713 and R v Swansea City Council, ex parte Elitestone Ltd (1993) 66 P&CR 422; [1993] 2 PLR 65 applied. Moreover, the defendants had erred in their consideration of the issue of permanence. Permanence had to be construed in terms of significance in the planning context. Where the units were permanently in their paddock, and there was no limit on the length of time that they would remain there, the ability to move them around the paddock did not remove the significance of their presence in planning terms. Further, the works carried out to construct and install the units were capable of falling within the definition of “building operations” in section 55(1A)(d). The defendants had failed to consider the application of that provision or whether, if the construction of the units did not amount to building operations, it none the less fell within the residual category in section 55(1) of “other operations in, on, over or under land”. That term was sufficiently broad to encompass the construction and installation of the poultry units.
(2) The defendants had also failed to address themselves to the question of whether the poultry units fell within the scope of the EIA Directive. The units were capable of falling within the wide definition of “project” in article 1(2) of the directive as “the execution of construction works or of other installations or schemes”. Although the court did not find it necessary to express a concluded view on the point, the relevant project might come within para 1(e) Annex II to the directive, and para 2 of Schedule 2 to the Town and Country Planning (Environmental Impact Assessment)) (England and Wales) Regulations 1999, dealing with “intensive livestock installations”. That phrase had the same meaning in both provisions and was not limited to installations that comprised buildings. The floorspace threshold in relation to the latter provision did not apply to the site since it fell within the definition of a “sensitive area”, being within a designated area of outstanding natural beauty.
(3) The defendants were not entitled to take the approach that, once they had decided that the poultry units were not development, they had no further duty to consider their environmental impact. Planning authorities could, and should, give a broad interpretation to the definition of “development” in section 55 of the 1990 Act so as to include, wherever possible, projects or developments that required an EIA under the EIA Directive and 1999 Regulations; otherwise the directive would not be effectively implemented into domestic law. The defendants had misdirected themselves by failing to have regard to the obligation to interpret “development” in that way. If the defendants concluded that the poultry units were a project or development that required an EIA, then the meaning of “development” was sufficiently broad to be capable of encompassing the poultry units.
(4) A further challenge to the lawfulness of a screening opinion, issued by the defendants in relation to a new stock pond on the site, was also allowed on the ground that the defendants had inadequately considered the cumulative effect of development when concluding that the pond was not EIA development.
Richard Harwood (instructed by Richard Buxton Environmental & Public Law, of Cambridge) appeared for the claimant; John Hobson QC and Lisa Busch (instructed by the legal department of Bath and North East Somerset Council) appeared for the defendants; Matthew Horton QC (instructed by Linda S Russell, of Colchester) appeared for the first interested party; James Strachan (instructed by the Treasury Solicitor) appeared for the second interested party.
Sally Dobson, barrister
