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R (on the application of Squire) v Shropshire Council

Judgment Cited authorities 25 Cited in 10 Precedent Map Related
Vincent
JurisdictionEngland & Wales
JudgeLord Justice Lindblom,Lady Justice King,Sir Terence Etherton
Judgment Date24 May 2019
Neutral Citation[2019] EWCA Civ 888
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: C1/2018/2122
Date24 May 2019
Categories
Between:
R. (on the application of Squire)
Appellant
and
Shropshire Council
Respondent

and

Matthew Bower
Interested Party

[2019] EWCA Civ 888

Before:

THE MASTER OF THE ROLLS

Lady Justice King

and

Lord Justice Lindblom

Case No: C1/2018/2122

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ADMINISTRATIVE COURT

PLANNING COURT

MR RHODRI PRICE LEWIS Q.C. (sitting as a deputy judge of the High Court)

[2018] EWHC 1730 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Ms Estelle Dehon (instructed by Richard Buxton Environmental and Public Law) for the Appellant

Mr Hugh Richards (instructed by Shropshire Council) for the Respondent

Mr Christian Hawley (instructed by Hewitsons LLP) for the Interested Party

Hearing date: 19 March 2019

Judgment Approved by the court for handing down

(subject to editorial corrections)

Lord Justice Lindblom

Introduction

1

Did a local planning authority, when granting planning permission for an intensive poultry-rearing facility, fail to consider as it should the likely effects of odour and dust arising from the disposal of manure? That is the basic question in this appeal. It requires us to consider the reach of an environmental permit issued under regulation 13 of the Environmental Permitting (England and Wales) Regulations 2016 (“the 2016 regulations”) and the relevance of that permit in a planning decision, and the adequacy of the environmental impact assessment (“EIA”) undertaken for the proposed development.

2

The appellant, Ms Nicola Squire, appeals against the order, dated 6 July 2018, of Mr Rhodri Price Lewis Q.C., sitting as a deputy judge of the High Court, by which he dismissed her claim for judicial review of the planning permission granted on 1 September 2017 by the respondent, Shropshire Council, for the erection of four poultry buildings and associated development at Footbridge Farm, Tasley, near Bridgnorth. The interested party, Mr Matthew Bower, who owns the site, was the applicant for planning permission and intends to erect the buildings and use them for the intensive rearing of poultry. The Environment Agency granted an environmental permit for the facility in April 2017.

3

Ms Squire is a local resident. She, together with others, objected to the proposal. One of her concerns was that the large quantities of manure from the poultry buildings, when stored and spread on agricultural land, would cause unacceptable odour and dust. The facility would be operated on a 48-day cycle, in which 210,000 chicks would be brought into the buildings, reared for 38 days and then removed, leaving 10 days for the buildings to be cleaned and prepared for the next flock. In the course of a year about 1,575,000 broiler chickens would be reared, and some 2,322 tonnes of manure produced. The manure would be disposed of by spreading it on farmland close to residential areas on the west side of Bridgnorth – some of it not owned by Mr Bower. Ms Squire's home is about 300 metres from one of the fields on which manure might be spread.

4

The claim for judicial review was issued on 16 October 2017. It asserted that the grant of planning permission was unlawful in two main respects: first, because the council had failed to consider the likely effects of the development on the environment in accordance with the legislative regime for EIA; and secondly, because it had failed to take into account those effects, and the position of the Environment Agency, as material considerations in the decision on the application. The judge rejected both grounds. I granted permission to appeal on 12 November 2018.

The issues in the appeal

5

The appeal is on two grounds, from which two main issues arise: first, 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 secondly, whether he was wrong to conclude that the EIA undertaken for the proposed development – in particular the assessment of the likely effects of odour and dust arising from the storage and spreading of manure – was adequate and lawful.

The regulatory framework for environmental permits

6

The 2016 regulations implement Directive 2008/1/EC concerning integrated pollution prevention and control (“the IPPC Directive”) in England and Wales. Under regulation 12 an “environmental permit” is required for the operation of a “regulated facility”, which is defined to include an “installation” for the intensive rearing of poultry “… with more than … (i) 40,000 places for poultry” (regulation 8(1) and Part A(1)(a)(i) of section 6.9, of Schedule 1). Regulation 13(1)(a) gives the Environment Agency, as “regulator”, the power to grant an operator an “environmental permit”. The content and form of an environmental permit are prescribed by regulation 14. An environmental permit may be varied or revoked, subject to a right of appeal (regulations 20 and 22). The Environment Agency's enforcement powers include the service of an “enforcement notice” (regulation 36), and the service of a “suspension notice” (regulation 37). An enforcement notice may be served if the Environment Agency “considers that an operator has contravened … an environmental permit condition” (regulation 36(1)). It is an offence for a person “to fail to comply with or to contravene an environmental permit condition” (regulation 38(2)); or “to fail to comply with the requirements of an enforcement notice or of a … suspension notice …” (regulation 38(3)).

The Code of Good Agricultural Practice

7

The Code of Good Agricultural Practice, “Protecting our Water, Soil and Air” (“the COGAP”), produced by the Department for Environment, Food and Rural Affairs in association with the Environment Agency, was published in 2009. Section 3, “Management Plans”, together with other sections, form a statutory code under section 97 of the Water Resources Act 1991 (paragraph 8). The statutory code deals with controlled water and minimizing the pollution of such water on land classified as a Nitrate Vulnerable Zone. It does not deal with odour and dust. The essential purpose of “manure management plans” is to avoid water pollution and nitrate loss. Sub-section 3.2 states that “[in] Nitrate Vulnerable Zones you must comply with the rules that restrict the quantity of livestock manure and organic manures you can apply and times of the year when certain types may not be applied …”. The principles of “Good practice” are set out (in paragraphs 137 to 146). In section 5, “Field work”, sub-section 5.4, “Application of livestock manures and dirty water”, says that “[correct] application of manures will reduce your fertiliser costs, improve soil structure, and reduce the risk of causing pollution”. The advice that follows includes the use of the farmer's “manure management plan together with a field inspection to identify whether it is safe to spread livestock manures and dirty water – and avoid causing water pollution”; and, “[if] possible, to reduce odour and ammonia loss”, the use of a “band spreader or injector to apply slurry”, or “otherwise, … broadcast equipment with a low trajectory and large droplets”; and “[on] bare land and stubble, to reduce odour, ammonia loss and run-off risk”, the incorporation of slurry “immediately, and at the latest within 6 hours”, and of solid manure “as soon as possible, and at the latest within 24 hours”. Detailed guidance is then given on “Good practice”, including the “Timing of applications”. The weather conditions that “cause odours to be diluted quickly” are explained (paragraph 386). Farmers are told to “[avoid] spreading at weekends, bank holidays, or in the evening unless it is solid manure that has been … treated to reduce odour” (paragraph 387); and to “[avoid] spreading solid manure, slurry or dirty water in fields close to and upwind of houses” (paragraph 391). The specific guidance given on “Application techniques” refers to the reduction of “odour” (paragraphs 397 to 400).

Sector Guidance Note EPR 6.09

8

In January 2010 the Environment Agency produced Sector Guidance Note EPR 6.09, “How to comply with your environmental permit for intensive farming” (“the Sector Guidance Note”). Its “Introduction” says that it is “about preventing pollution”; that it “describes the standards and measures we expect intensive pig and poultry farms to take in order to control the risk of pollution to air, land and water”; that “[farms] regulated under EPR require a bespoke permit to operate”, and that “[the] permit will cover all aspects of farm management, from feed delivery to manure management”. It points out that the IPPC Directive “requires that the Best Available Techniques (BAT) are used”. It goes on to explain that “[modern] permits describe the objectives (or outcomes) that we require … but they do not normally tell you how to achieve them”, and that “[each] section of this guidance gives the typical permit condition with which you must comply and then provides guidance on how to comply”. It says that “[where] a condition requires you to take appropriate measures to secure a particular objective, we will expect you to use, at least, the measures described in this guidance which are appropriate for meeting the objective”.

9

In section 2, “Operations”, under the heading “Slurry spreading and manure management planning – off-site activity”, condition 2.3.3 states:

“2.3.3 The operator shall take appropriate measures in off-site disposal or recovery of solid manure or slurry to prevent, or where this is not practicable to minimise, pollution.”

The guidance on this condition says that the operator “should maintain written evidence of the arrangements in place when [he exports] slurry and manure such as … records of the quantities and the date of transfer … to … [a] third party for spreading to land” and “the names and addresses and land acreage available where manures and...

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