R (on the application of Wye Valley Action Association Ltd) v Herefordshire Council

Planning permission – Environment — Polytunnels – Interested party applying for permission to use polytunnels on farm in area of outstanding natural beauty – Appellant council granting permission without requiring environmental statement – Respondent association seeking judicial review – Judge holding appellants erring in law in finding project not requiring environmental impact assessment (EIA) — Whether use of polytunnels for intensive agricultural purposes in semi-natural area requiring EIA — Appeal allowedThe respondent association, which promoted the preservation and improvement of the Wye Valley area of outstanding natural beauty (AONB), was concerned about the effect on the landscape of polytunnels used in farming. It objected to an application by the interested party for planning permission to use polytunnels to cultivate soft fruit on a farm located within the AONB. The farm was situated north of Tintern Abbey, a scheduled ancient monument, and in the vicinity of other listed buildings and the River Wye special area of conservation and site of special scientific interest. In their screening opinion, the appellant council concluded that an environmental statement was not required in respect of the application since the development did not fall within Schedules 1 or 2 of the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999, which implemented Directive 85/337/EEC on environmental impact assessment (EIA). The only potentially relevant category was para 1(a) of Schedule 2, namely projects for the use of uncultivated or semi-natural land for intensive agricultural purposes. The appellants considered that the cultivated nature of the land precluded it from being “semi-natural” such that para 1(a) did not apply. They therefore decided to grant planning permission.The respondent brought a claim for judicial review of that decision. The High Court held that the appellants had erred in law in concluding that the development was not covered by Schedule 2: [2009] EWHC 3428 (Admin); [2010] PLSCS 22.The appellants appealed. The issues for the court were whether: (i) the appellants had erred in deciding that the development did not constitute a project for the use of uncultivated or semi-natural land for intensive agricultural purposes; and (ii) the reasons given by the appellants in their screening opinion were adequate in law.Held: the appeal was allowed.(1) Under the 1999 Regulations, it was for the local planning authority to determine whether a development for which planning permission was being sought was an EIA development. That included a decision on whether it fell within para 1(a) of Schedule 2 as a project “for the use of uncultivated land or semi-natural areas for intensive agricultural purposes”. The court’s role was to check that the decision was lawful, not to take on the function of primary decision maker. In determining the lawfulness of the appellants’ decision, the court had to apply the approach laid down in R (on the application of Goodman) v Lewisham London Borough Council [2003] EWCA Civ 140; [2003] 2 PLR 42. The description in para 1(a) was imprecise, as was underlined by the European Commission’s guidance, which acknowledged that there was legitimate scope for differences of approach between member states and between different authorities in a single member state. It was therefore necessary to consider, first, whether the appellants had correctly understood the meaning of the expression and, second, whether, in applying the expression to the facts, they had reached a conclusion that was open to a rational decision maker. The reasoning of the deputy judge, in particular his finding that the application site came within the definition of “semi-natural area” as a matter of law, did not distinguish sufficiently between the two stages of the exercise. Moreover, it gave the appearance of substituting the court for the local planning authority as the primary decision maker on the question of whether the proposed development fell within para 1(a). The deputy judge had placed considerable weight on environmental designations that could be relevant but fell into error in his use of them. The application site came within a designated AONB, to which regard was rightly had as a relevant consideration but which was far from determinative. The cultivated land did not become semi-natural simply because it was included in a designated AONB. The deputy judge had attached undue weight to the landscape designation. (2) The screening opinion had made the point, albeit in a compressed way, that the extent of existing cultivation (with a mixture of arable and turf production) was such that the land did not come within the description “uncultivated land or semi-natural areas” in para 1(a). That was sufficient to enable the respondent to decide whether to challenge the opinion on the basis of legal error. The respondent did not require anything further to raise the issues that had been canvassed before the deputy judge and on appeal. It was not incumbent on the appellants to set out all the considerations they had taken into account, such as the effect of the AONB. They had set out the essence of their reasoning and that was sufficient. Richard Kimblin (instructed by the legal department of Herefordshire Council) appeared for the appellants; James Pereira (instructed by Richard Buxton Environmental and Public Law, of Cambridge) appeared for the respondent; Timothy Straker (instructed by the National Farmers’ Union) appeared for the intervener.Eileen O’Grady, barrister