Town and country planning – Environment – Environmental permit – Respondent local authority granting planning permission for intensive poultry-rearing facility – Appellant local resident applying for judicial review of respondent’s decision to grant permission – High Court dismissing application – Appellant appealing – Whether respondent failing to consider likely effects of odour and dust arising from disposal of manure – Appeal allowed
The interested party owned a site at Footbridge Farm, Tasley, near Bridgnorth. The respondent local authority granted planning permission for the erection of four poultry buildings and associated development for the intensive rearing of poultry. The Environment Agency (EA) had issued an environmental permit for the facility under regulation 13 of the Environmental Permitting (England and Wales) Regulations 2016.
The appellant was a local resident who objected to the proposal. She was concerned that the large quantities of manure from the poultry buildings, when stored and spread on agricultural land, would cause unacceptable odour and dust. In the course of a year about 1,575,000 broiler chickens would be reared, and some 2,322 tonnes of manure produced which would be disposed of by spreading it on farmland close to residential areas, some of which was not owned by the interested party.
The appellant applied for judicial review of the respondent’s decision to grant planning permission. She asserted that the grant of planning permission was unlawful because the respondent had failed to consider the likely effects of the development on the environment in accordance with the legislative regime for an environmental impact assessment (EIA); and because it had failed to take into account those effects, and the position of the EA, as material considerations in the decision on the application. The High Court dismissed the application: [2018] EWHC 1730 (Admin).
The appellant appealed. The two main issues were: (i) whether the judge was wrong to conclude that the environmental permit would “control the management of manure” outside the site to which the permit related; and (ii) whether he was wrong to conclude that the EIA undertaken for the proposed development was adequate and lawful.
Held: The appeal was allowed.
(1) One had to construe the relevant provisions of the environmental permit to establish whether and, if so, how it would control the disposal of manure on agricultural land outside the site to which it related. Although the activities permitted under the environmental permit did not explicitly include the disposal of manure on other land once it had been removed from the site, manure clearly fell within the concept of “associated wastes” so that its removal from the site came within the ambit of activities allowed by the permit. Given the definition of the “site” to which the permit related, the concept of “disposal” embraced the transfer of manure beyond the site boundaries to farmland elsewhere. The concept of “pollution” was not defined, but might include harmful effects on water, soil or air caused by the relevant disposal, including the generation of odour and dust. The concept of the operator taking “appropriate measures” to prevent or minimize pollution had to correspond to that understanding of pollution. It did not enlarge the operator’s own responsibility to manage or oversee the spreading of manure on another farmer’s land. However, it would extend to the arrangements for the removal of manure from the site and its onward transport to the land where it was to be stored and spread. It would also extend to the keeping of proper records of those arrangements.
(2) The court did not approach a planning officer’s report to committee in an overly critical spirit. It concerned itself only with errors that went to the lawfulness of the decision. The officer’s report had to be read fairly and as a whole. The crucial question was whether the advice given to the committee was deficient or misleading in a significant way. The decision of the respondent’s planning committee was not flawed by a failure to grasp the scope of the environmental permit itself. However, the planning officer had misunderstood the scope and effect of the future manure management plan to be put in place by the operator. He had failed to acknowledge that such a plan would relate only to the operator’s own land, not to any third-party land. He had failed to make it clear that there was no assurance that the plan would control odour and dust pollution: Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314; [2017] PLSCS 174 followed.
(3) The environmental statement had recognised that the facility was inevitably going to produce manure, which would be spread as a fertiliser on agricultural land in the local area. However, it only described and discussed the arrangements proposed for the interested party’s land. It did not specify the third-party land on which manure was going to be spread or set out any meaningful assessment of the effects of odour and dust from the storage and spreading of manure. The future manure management plan to which the planning officer referred was not a substitute for the assessment lacking in the environmental statement which was deficient in its lack of a proper assessment of the environmental impacts of the storage and spreading of manure as an indirect effect of the proposed development. In that respect it was not compliant with the requirements of Directive 2011/92/EU (the EIA Directive) and the Town and County Planning (Environmental Impact Assessment) Regulations 2011 (the EIA Regulations): Preston New Road Action Group v Secretary of State for Communities and Local Government; [2018] PLSCS 8; [2018] Env LR 18, Gateshead Metropolitan Borough Council v Secretary of State for the Environment [1994] EGCS 92; [1995] Env LR 37 and Frack Free Balcombe Residents’ Association v West Sussex County Council [2014] EWHC 4108 (Admin); [2014] PLSCS 342 considered.
(4) The planning officer had not merely adopted the assessment in the environmental statement as if it were his own. He provided the planning committee with the EA’s consultation response and the advice of the respondent’s public protection officer, as well as a summary of the representations made by objectors. However, he did not accurately reflect the EA’s position on manure management. The EIA for the proposed development was incomplete and unlawful and vitiated the respondent’s decision to grant planning permission.
Estelle Dehon (instructed by Richard Buxton Environmental and Public Law) appeared for the appellant; Hugh Richards (instructed by Shropshire Council) appeared for the respondent; Christian Hawley (instructed by Hewitsons LLP) appeared for the interested party.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of Squire) v Shropshire Council
