Nicola Squire v Shropshire Council
| Jurisdiction | England & Wales |
| Judge | Rhodri Price Lewis |
| Judgment Date | 06 July 2018 |
| Neutral Citation | [2018] EWHC 1730 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4713/2017 |
| Date | 06 July 2018 |
[2018] EWHC 1730 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Rhodri Price Lewis QC
(Sitting as a Deputy Judge of the High Court)
Case No: CO/4713/2017
and
Estelle Dehon (instructed by Richard Buxton Environmental & Public Law Sols) for the Claimant
Hugh Richards (instructed by Shropshire council Legal Services) for the Defendant
Christian Hawley (instructed by Hewitsons LLP) for the Interested Party
Hearing dates: 7 June 2018
Approved Judgment
Rhodri Price Lewis QC:
Introduction:
The Claimant, who would be a neighbour to the proposed development, challenges the decision of the Defendant Council, as local planning authority, to grant planning permission for the erection of four poultry buildings with feed bins, a gate house, a boiler house and water tank and associated infrastructure and landscaping at Footbridge Farm, Tasley, Bridgnorth, Shropshire. There are two grounds of claim. Firstly, it is claimed that the Council failed to consider the direct or indirect effects of the proposed development and operations as a result of manure storage and spreading, contrary to the Environmental Impact Assessment Directive 2011 (2011/92/EU) and the regulations which transpose that Directive into English law, the Town and Country Planning (EIA) Regulations 2011. Secondly, it is claimed that the Council failed to take into account in deciding to grant planning permission the material considerations that the storing and spreading of manure from the proposed development would generate dust and odour. The Defendant submits that the committee of members determining the application had regard to all the relevant environmental information addressing manure storage and disposal and so complied with the requirements of the Directive and the Regulations. The Defendant further submits that the material consideration of the potential impacts of manure storage and spreading were fully taken into account before planning permission was granted. The Interested Party, the farmer at Footbridge Farm and the applicant for the planning permission, supports those submissions. Furthermore, since planning permission was granted, he has entered into a unilateral undertaking under section 106 of the Town and Country Planning Act 1990 which, he and the Council submit, provides for all appropriate control by the Council of manure spreading and storage so as to ensure there would be no unacceptable impact on the amenities of local residents and both the Defendant and the Interested Party submit that therefore relief should be refused under section 31(2A) of the Senior Courts Act 1981.
Permission to bring the claim was refused by Robin Purchas QC sitting as a deputy High Court Judge on the 28 th November 2017 following consideration of the documents in the case but following an oral hearing of a renewed application for permission, Mark Ockelton, sitting as Judge of the High Court, granted permission on both grounds.
The Facts:
The development for which planning permission was granted would house a combined total of 210,000 birds. The birds would be brought to the buildings as day old chicks and reared for 38 days. Following their removal for slaughter, the buildings would be cleared out and the manure would be removed and used as a fertiliser on agricultural land. The development would produce about 2,322 tonnes of manure each year with some 1,171 tonnes each year being spread on the Interested Party's land with some 1,151 tonnes exported to the land of a neighbouring farmer. The buildings would then be washed out. Within 10 days another flock would be introduced and the process would repeat itself over this 48-day cycle resulting in 7.5 flocks being raised a year so a total of 1,575,000 birds would be dealt with in this way each year. The boiler house would provide hot water for the buildings.
The proposed development required environmental assessment under the Directive and Regulations (an “EIA”) as it involved a proposal for the intensive rearing of more than 85,000 birds. So, an Environmental Statement (“ES”) was prepared on behalf of the Interested Party by specialist agricultural and rural planning consultants. That ES contained an Odour Impact Assessment and a Manure Management Plan.
Consultations were carried out on the application for planning permission with local parish councils, with the relevant statutory bodies including the Environment Agency, Natural England and Historic England and with internal specialist officers of the Defendant Council including the Public Protection Officer (“PPO”). Members of the public were also consulted and that resulted in 235 objections, including concerns being expressed about the effects of manure spreading, and 38 representations were made in support. The Bridgnorth branch of the Council for the Protection of Rural England and the Shropshire Ramblers also expressed concerns about the effects of manure spreading.
The application was reported to the South Planning Committee of the Defendant Council on the 29 th August 2017 under the name of the Council's planning officer, Mr Tim Rogers. A written report to committee was produced by Mr Kelvin Hall, the planning case officer, which recommended to the members of the committee that delegated authority be given to the Planning Services Manager of the Council to grant planning permission subject to the conditions set out in an appendix to the report with any amendments considered necessary. Members of the committee visited the site on the morning of the committee meeting. The members of the committee resolved to accept the recommendation and planning permission was granted on the 1 st September 2017.
The Law:
EIA Directive 2011/92/EU sets the framework for assessment of the environmental impact of relevant developments so that the environmental effects of proposed developments are taken into account before any decision on the grant of planning permission is made. The Directive was transposed into English law by the Town and Country Planning (EIA) Regulations 2011. There are more recent regulations dealing with EIA but it is the 2011 Directive and Regulations which apply to this application as it was made before the date the 2017 Regulations came into effect.
Article 2 of the Directive requires that before consent is given to a project likely to have significant effects on the environment there must be an assessment with regard to its effects. By Article 3 the EIA must identify, describe and assess in an appropriate manner the direct and indirect effects of the project. The proposal here is a project listed in Annex 1 to the Directive as an “installation for the intensive rearing of poultry with more than 85,000 places for broilers” and so by reason of Article 4 (1) it had to be made subject to an assessment in accordance with Articles 5 to 10. By Article 5(1) the developer must supply the information specified in Annex IV. That information must include a description of the project and a description of the aspects of the environment likely to be significantly affected by the development. Paragraph 4 of Part 1 to Schedule 4 of the transposing Regulations requires that the ES includes “A description of the likely significant effects of the development, which should cover the direct effects and any indirect, secondary, cumulative, short, medium and long-term, permanent and temporary, positive and negative effects of the development resulting from (inter alia) (c) the emission of pollutants, the creation of nuisances and the elimination of waste.”
By Regulation 3(4) a planning authority shall not grant planning permission pursuant to an application for permission for EIA development unless they have first taken the environmental information into consideration. “Environmental information” means the environmental statement, including any further information requested by the planning authority under Regulation 22, any other substantive information relating to the ES provided by the applicant and any representations made by bodies consulted on the application and by any other person: see Regulation 2(1).
As was explained in the Opinion of Advocate General Kokott in Abraham v Wallonia [2008] Env. L.R. 666: “The aim of environmental impact assessment is for the decision on a project to be taken with knowledge of its effects on the environment and on the basis of public participation. Investigation of the environmental effects makes it possible, in accordance with the first recital of the preamble to the EIA Directive and the precautionary principle under Article 174(2) of the Treaty, to prevent the creation of pollution or nuisances where possible, rather than subsequently trying to counteract them. The requirement of public participation implies that the participation can still influence the decision on the project.”
In R (oao Burkett) v LB Hammersmith and Fulham [2003] EWHC 1031 (Admin) Newman J explained: “The objective of the Directive and the Regulations, namely the making of the requisite assessment before the grant of permission, is to be achieved through a dynamic process, which starts with the statement from the developer but it does not end with the statement. The statement can be supplemented by the authority, and the environmental information includes the representations from members of the public, where they have been provided.”: [8]vi. He went on: “Where likely significant adverse effects are identified consideration must be given to remedial measures to avoid, reduce or remedy such adverse consequences. First consideration in this regard rests with the developer and the information will be subject to the same dynamic process of consideration by...
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