Felicity Norman v Secretary of State for Housing Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Justine Thornton |
| Judgment Date | 01 November 2018 |
| Neutral Citation | [2018] EWHC 2910 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 01 November 2018 |
| Docket Number | Case No: CO/194/2018 |
Neutral Citation Number: [2018] EWHC 2910 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Justine Thornton QC SITTING AS A DEPUTY HIGH COURT JUDGE
Case No: CO/194/2018
Alex Goodman and Admas Habteslasie (instructed by Leigh Day) for the Claimant
Guy Williams (instructed by Government Legal Department) for the First Defendant
Hearing dates: 18 th and 19 th September 2018
Justine Thornton QC, Deputy High Court Judge:
Introduction
By an application made under section 288 of the Town and Country Planning Act 1990 (‘the 1990 Act’), the claimant, Felicity Norman, challenges the decision of the inspector appointed by the first defendant, the Secretary of State for Housing, Communities and Local Government to uphold the appeal by the third defendant, Mr Williams, against the refusal by the Second Defendant, Herefordshire Council of his application for planning permission to erect poultry buildings to house 82,500 birds. The inspector's decision letter was issued on 4 December 2017, following written representations. For ease, this judgment refers to Herefordshire Council as ‘the Council’ and to Mr Williams as ‘the developer’.
The focus of the Claimant's challenge is on environmental issues, in particular the inspector's assessment of predicted odour and noise impacts and his reliance on an environmental permit already granted by the Environment Agency. She brings this claim in the context of her growing concern about the environmental impacts of poultry units in the context of their proliferation in Herefordshire and the difficulties faced by local residents in getting their concerns taken seriously. As well as being an elected Councillor and member of the planning committee of Herefordshire Council, the Claimant is the Chair of the North Herefordshire Green Party. During the hearing my attention was drawn to the recent decision of Squire v Shropshire Council [2018] EWHC 1730 (Admin) which also concerns a challenge to the grant of planning permission for poultry units, on grounds relating to environmental impact.
The Defendant challenges the Claimant's standing to bring the claim on the basis that she is not a ‘person aggrieved’ within the meaning of section 288 of the 1990 Act.
By order dated 13 April 2018, Lang J ordered a rolled up hearing of permission, the substantive challenge and the question of standing. The question of standing only arises if the Claimant would otherwise succeed on her substantive challenge so I deal with the substantive issues first, which is the order in which Mr Goodman, who appeared on behalf of the Claimant, suggested I take matters.
Background
The proposed scheme and its location
The inspector's decision letter describes the site, its location and the proposed development as follows:
“4. Rogers Farm lies adjacent to the A4110, approximately one kilometre north of Bush Bank. There is a range of existing agricultural buildings and farmhouse which form the main farm complex. The appeal site is located directly to the south east of the farmyard and covers an area of some 1.35 hectares. The land rises gently from the existing farm buildings towards Lime Kiln Grove and Ladye Grove Woodland.
5 The proposed development would involve the erection of two poultry sheds on land immediately to the south- east of the existing farm buildings, part of a field currently laid to pasture. The sheds would accommodate approximately 82,500 birds per crop cycle. The birds would be grown up to approximately 35 to 37 days, with an eight to ten day turnaround period. The breaks between crops can be longer at certain times of year, such as Christmas or if clean-out is delayed, leading to around seven to eight crops per year. A new access road would be created and a comprehensive landscape planting scheme is proposed.
6 In addition to the farmhouse, there are two residential properties in the immediate vicinity of the site, Yew Tree Cottage, which is approximately 110 metres from the proposed poultry units and 85 metres from the proposed biomass boiler, and Micklegarth to the north of Yew Tree Cottage.”
The context of the odour and noise issues before the inspector
The Council's objections to the development had focussed on odour and noise impacts. The inspector had the following evidence before him in relation to predicted odour and noise impacts:
• An Environmental Statement produced on behalf of the developer which assessed noise and odour.
• Computer modelling of the predicted odour impacts produced on behalf of the developer, by AS Modelling & Data Ltd.
• An odour assessment and peer review of the developer's computer modelling, done on behalf of the Council by Redmore Environmental Ltd.
• An objection to the planning application produced on behalf of Mr and Mrs Pritchatt, who reside at Micklegarth Knapton which neighbours the development site. The objection covers odour and noise.
• A response to the objection of Mr and Mrs Pritchatt by AS Modelling & Data Ltd, on behalf of the developer.
• An addendum to an earlier noise impact assessment produced on behalf of the developer in response to the neighbour objections.
• The Environmental Permit issued by the Environment Agency dated 17 April 2015 authorising the proposed operation and imposing conditions relating to odour and noise.
• A review of the odour and dust chapters of the Environmental Statement produced on behalf of Mr and Mrs Pritchatt by Dr Dickinson.
The odour assessment modelling on behalf of the developer and the Council was based on Environment Agency guidance set out in a document titled “ H4 Odour Management – How to comply with your environmental permit”. The Agency's guidance explains that whether or not odour emissions amount to serious pollution depends on a number of factors including frequency, duration and perceived intensity of exposure as well as the inherent offensiveness of the odour and the sensitivity of the receptor (e.g. residential houses). There is no single method of reliably measuring or assessing odour pollution and any conclusion is best based on a number of pieces of evidence. Modelling can be used to predict odour levels from new development. The modelling method commonly used in the UK calculates a 98th percentile of hourly average concentrations of odour measured over a year. Unacceptable levels of odour pollution can be assessed against exposure benchmarks. The guidance proposes the following benchmarks:
“ Benchmark levels
The benchmarks are based on the 98th percentile of hourly average concentrations of odour modelled over a year at the site/installation boundary. The benchmarks are:
• 1.5 odour units for most offensive odours;
• 3 odour units for moderately offensive odours;
• 6 odour units for less offensive odours.
Any modelled results that project exposures above these benchmark levels, after taking uncertainty into account, indicates the likelihood of unacceptable odour pollution. You should also take evidence from other assessment methods and site specific influences into account when drawing final conclusions.”
Short term but intense odours during bird removal and clean-out operations were of particular concern to the Council. The guidance requires short / infrequent episodes of very high odours to be considered separately.
“If there are short or infrequent episodes of very high odours that are averaged out by the modelling they would need to be considered separately”.
No benchmarks are provided for short or infrequent odour episodes and no further specific guidance is provided in the document.
The odour modelling produced on behalf of the developer dealt with short term odours as follows:
“Odours that arise during the clearing out process although short in duration can be quite intense. AS Modelling & Data Ltd. do include a peak in emissions when modelling broiler rearing (See Section 3.5); however, as the duration of the emission is short, this has little effect on the predicted 98th percentile statistics, on which guidance on the acceptability or not of odour is based.
To address this, 99.5th and 99.8th percentile statistics, which the cleaning out process will have a more significant effect upon than it does on the 98th percentile statistics, have also been compiled. N.B. the 99.5th percentile is the value equalled or exceeded for 0.5% of the time and the 99.8th percentile is the value equalled or exceeded 0.2% of the time. The results for modelling of the proposed broiler houses at Rogers Farm alone are presented in Table 3b. No comment on the significance / acceptability is made as there is no guidance available; however, the descriptions in Section 3.1 of the main report may be useful when interpreting the results.”
The descriptions in Section 3.1 of the report are as follows
“At 2.0 – 3 ouE/m3 a particular odour might be detected against background odours in an open environment
When the concentration reaches around 5.0 ouE/m3 a particular odour will usually be recognisable, if known, but would usually be described as faint”
The environmental permit issued by the Environment Agency in 2015, pursuant to the Environmental Permitting (England and Wales) Regulations 2010, authorises the rearing of poultry in a facility with a capacity for 82,500 birds. Condition 3.3 of the permit regulates odour from the site and requires that omissions from activities shall be free from odour at levels likely to cause pollution outside the site. Condition 3.4 of the Environment Agency's permit regulates noise by reference to a similarly worded condition.
The inspector's decision letter
The inspector identified the main...
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