MR. William Graham v The Secretary of State for Transport, Local Government & The Regions and Royal Borough of WINDSOR and MAIDENHEAD
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE ELIAS |
| Judgment Date | 28 May 2002 |
| Neutral Citation | [2002] EWHC 1150 (Admin) |
| Date | 28 May 2002 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO-995–2002 |
[2002] EWHC 1150 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr. Justice Elias
CO-995–2002
MR. W. GRIFFITHS QC and MR. J. STRACHAN appeared on behalf of the applicant. (Instructed by Kidd Rapinett)
MR. D. FORSDICK appeared on behalf of the first respondents. (Instructed by the Treasury Solicitors.)
This is an application pursuant to section 288 of the Town and Country Planning Act 1990 against an Inspector's decision to dismiss the claimant's appeal and to refuse planning permission for the erection of two general purpose agricultural barns for housing cattle at Fir Tree Farm, Ockwells Road, Maidenhead, Berkshire.
Introduction.
The claimant is the aggrieved person under the section. The Royal Borough of Windsor and Maidenhead (the Council) had failed to determine his planning application and he appealed against that non-determination. The single issue upon which the Inspector found against the claimant was that the development would cause harm to the amenities of the neighbouring houses because of unacceptable levels of smells beyond the site boundaries. The nearest dwelling was in fact 65 metres away.
The Factual Background.
Fir Tree Farm is about one and a half miles south of Maidenhead town centre on land within the metropolitan green belt. It is a long established farm comprising approximately 17.4 hectares of permanent pasture. In the past there has been some pig rearing, although now the farm is used principally for the rearing of beef cattle but with some grazing of horses. The existing farm buildings are all located together. They are close to the residential development on Ockwells Road. The buildings currently on the site include barns for the housing of cattle, a hard surfaced yard and a mobile home where the claimant and his wife live. The mobile home is close to the cattle buildings for reasons of security and also for animal husbandry. All essential requirements of the cattle, such as the hay, straw, silage, food and so on are provided in this area.
The claimant sought planning permission to build the two agricultural barns over the existing yard to provide additional premises for housing the cattle in winter. The evidence was that apparently cattle had been rotated between the existing barn and the hard standing. The application was made on 10th December 1999. Normally, an agricultural development of this kind would be automatically permitted under the provisions of Schedule 2, Part 6, Class A of the Town and Country Planning (General Permitted Development) Order 1995. This permits the erection of buildings which are reasonably necessary for agriculture on agricultural land. But the development rights under Class A do not apply in this case because the proposed buildings are for livestock which would lie within 400 metres of residential development. This puts the development outside that in respect of which automatic permission applies. Accordingly the barns required planning permission in the normal way.
The initial planning proposal was modified marginally as a result of discussions with Council officers, and the revised location plan was submitted on 11th February 2000. However, there were extensive delays by the Council in determining the application, and subsequently the claimant appealed in July 2001. The officer's report to the Council's Development Control Panel had in fact initially recommended that the planning permission should be granted, but the Council's panel deferred determination in order to consider advice on possible resiting.
On the 1st August 2001, after the appeal had been lodged, the Council recommended refusal. The purported notice of refusal was on the following grounds:
"The proposal would be detrimental to the amenities of neighbouring properties in Ockwells Road by virtue of its size, siting and use which could lead to unacceptable levels of noise and smell. As such a proposal that conflicts with policies GB2 and NAP 3 of the Royal Borough of Windsor and Maidenhead local plan adopted in July 1999 and policy D3 of the Berkshire structure plan".
An inquiry was held into the claimant's appeal on 18th December 2001. The Inspector found that there were no valid objections in terms of siting or noise. However, he dismissed the appeal on 18th January 2002 solely on the ground of the concern about the unacceptable smells and odours from the development. It is the Inspector's determination in relation to that issue, which in fact is considered in some four paragraphs of his decision, which is in issue in this case.
The Legal and Policy Framework.
Section 54A of the 1990 Act requires that the issue of planning permission should be determined in accordance with the development plan unless material considerations indicate otherwise. In this case the development plan consisted of the Berkshire Structure Plan and the Royal Borough of Windsor and Maidenhead Local Plan. Both the structure plan and the local plan have policies against development which would have an unacceptable impact on the environment, including by reason of harm to residential amenities in the locality. Policy LD 3 of the structure plan provides:
"Development proposals will only be permitted where they do not give rise to unacceptable impact on the environment, including serious harm to the character or appearance of an area, or the amenities of neighbouring land uses".
Policy GB 2 of the local plan provides, in so far as is material, that:
"Permission will not be granted for new development if it would:
A) …
B) harm the character of the countryside because of:
5) harm to residential amenities in the locality."
Policy NAP 3 of local plan applies to developments likely to give rise to smell and air pollution and provides:
"The Council will not grant planning permission for proposals likely to emit unacceptable levels of noise, smells or fumes beyond the site of boundaries."
These policies should if possible be construed harmoniously. Mr. Forsdick for the Secretary of State accepts that it follows from NAP 3 that in this case that the Inspector must be satisfied that development would be likely to emit an unacceptable level of smells beyond the site boundaries.
The relevant legal issues in this case are not in dispute. It is common ground that an Inspector must give proper, adequate and intelligible reasons for dealing with the substantial points raised (see the well known case of Save Britain's Heritage v Secretary of State for the Environment [1991] 1 WLR 153 applied in Macgay v Secretary of State for the Environment [2001] PLCR 21). However, relief will only be granted if the claimant is substantially prejudiced by the failure to give proper reasons as Lord Bridge's decision in the Save Britain's Heritage makes clear. Furthermore, if an Inspector is going to take a line in his decision which has not been the subject of discussion at the inquiry, then he must in fairness give the parties further opportunity to deal with it. (For recent illustrations see Castleford Homes v Secretary of State for Environment [2001] EWCH Admin 77; [2001] PLRC 29).
The Inspector's Decision.
This is contained in some four paragraphs which have been the subject of minute analysis. They are paragraphs 13 to 16 of his decision, which state as follows:
"13. Turning to the matter of possible disturbing odours, the farm is an existing enterprise and cattle habitually occupy the open on the site of the proposed barns. However, the Town and Country Planning (General Permitted Development) Order 1995, Part 6, Class A, allows for buildings for the accommodation of livestock to be permitted development provided they are sited more than 400 meters from a dwelling. I consider that this indicates that the building could give rise to problems. In the case of the appeal proposal, the barns would provide shelter and areas of bedding, with the cattle having access to open standing in addition. The low-level walls would provide a small element of initial containment on the one hand, and a slight reduction in cross-ventilation on the other. But, the upper cladding would be alternating boards and air gaps, and in my judgment, whether the walls are constructed or not would not affect the spread of odours or their perception at the boundary significantly.
14. There has been a series of complaints in the past about odours from the farm, but these refer mainly to pig rearing activities that do not now persist. I acknowledge that the cattle rearing should produce fewer odours than pig rearing. I further acknowledge that the main influencing factor on odours is the control, movement on storage of waste matter, soil bedding and the like, with silage and feed being possible additional sources of odour. It appears to me therefore that the management is a significant factor. There is evidence of previous poor management and poor animal husbandry. The appellant states that this has been addressed by a reduction in stocking levels and that the proposed barns would further assist. At the time of my site inspection many of the cattle were on the hard standing and were ankle-deep in slurry. It is apparent from my observations and other evidence that there has been an on-going drainage problem on the holding. Whilst management actions may be able to control the situation, I consider that there would remain the risk of problems occasioned by emergencies beyond the control of the operator, unusual or unexpected climatic conditions,...
To continue reading
Request your trial