R Save Woolley Valley Action Group Ltd v Bath and North East Somerset Council (1) Golden Valley Paddocks Ltd (Interested Parties) (2) Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang DBE |
| Judgment Date | 27 July 2012 |
| Neutral Citation | [2012] EWHC 2161 (Admin) |
| Date | 27 July 2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5389/2010 |
[2012] EWHC 2161 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Lang Dbe
Case No: CO/5389/2010
CO/3714/2011
and
and
Richard Harwood (instructed by Richard Buxton Solicitors) for the Claimant
John Hobson QC and Lisa Busch (instructed by Bath and North East Somerset Council Legal Services for the Defendant)
Matthew Horton QC (instructed by Linda S. Russell Solicitors) for the First Interested Party
James Strachan (instructed by The Treasury Solicitor) for the Second Interested Party
Hearing dates: 3 rd, 4 th, 5 th July 2012
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The Claimant is an action group set up by local residents concerned to protect the character and environment of Woolley Valley. It seeks judicial review of two planning decisions made by the Defendant ("the Council"), in respect of the use of land at Meadow Farm, Woolley Lane, Charlcombe, Bath ("the site"), which is owned by the First Interested Party ("GVP").
The first claim is a challenge to the Council's conclusion, as set out in its Enforcement Delegated Report of 21 May 2010, that the poultry units, installed on the site by GVP Ltd, were not "development" susceptible to planning control, and did not require environmental impact assessment ("EIA"). For those reasons, the Council did not include the poultry units amongst the development prohibited by a Temporary Stop Notice dated 23 April 2010.
The Claimant contended that the poultry units were "development" within the meaning of s.55 Town and Country Planning Act 1990 ("TCPA 1990"), and required EIA, pursuant to the Town and Country Planning (Environmental Impact Assessment) (England and Wales Regulations 1999) ("the EIA Regulations 1999"), and the Environmental Impact Directive 85/337/EEC ("the EIA Directive").
The Second Interested Party ("the Secretary of State") supported the Claimant's legal analysis, whilst remaining neutral as to the merits of the planning decisions made in this particular case. He submitted that the poultry units were capable of constituting "development" under s.55 TCPA 1990 and coming within the scope of the EIA Regulations 1999 and the EIA Directive.
The second claim is a challenge to the Council's decision that EIA assessment of a newly constructed stock pond was not required. Planning permission for this development was granted on 21 January 2011.
The Claimant contended that the screening opinion wrongly failed to consider the cumulative effect of constructing the stock pond together with the poultry units.
In respect of both claims, the Council maintained that it had correctly interpreted the relevant provisions and lawfully exercised its judgment on the planning issues. GVP supported the Council's position.
Facts
The site comprises 20.5 hectares and it is in a rural location within the Cotswold Area of Outstanding Natural Beauty ("AONB") and the Green Belt.
The site has been in agricultural use throughout its planning history. However, it is subject to a direction made by the Secretary of State under Article 4 of the Town and Country Planning (General Permitted Development) (England and Wales) Order 1995 which removed agricultural permitted development rights.
The site was acquired by GVP in 2005, with a view to using it to breed alpaca and free range chickens for the production of eggs. Instead it has mainly been used for the rearing of ducks.
Following complaints about activities on the site, and visits by the Council's officers, on 22 April 2010 the Council served a planning contravention notice on GVP seeking information about the activities that had occurred.
GVP's response, dated 14th May 2010, gave the following information about the poultry units:
a) the poultry units would each house 1,000 laying hens, each hen weighing 2 kg;
(ii) each unit was approximately 20 metres by 6 metres by 3.5 metres high;
(iii) the units were not fixed to the ground but were on metal skids to allow them to slide along the ground when pulled by a tractor;
(iv) if extreme winds were forecast, they could be held down with metal spikes;
(iv) each unit would weigh about 2 tonnes (in addition to the 2 tonne flock of hens);
(v) each unit would be in a fenced paddock of 1–2 acres and would stay in its paddock;
(vi) the units would be moved within their paddocks regularly (approximately every 8 weeks) by being dragged by a tractor or 4 x 4;
(vii) each unit could be assembled by a 'skilled team' from metal hoops, metal skids, uPVC planks, polythene and insulation in 'a couple of days'. If the metal hoops are not taken apart, a shed could be dismantled in 3–4 hours.
The units contain slatted floors, manually operated conveyor belts, drinkers, feeders and internal lighting. They are powered by an on-site external generator.
The units are supplied with mains water by means of a hosepipe connection to standpipes, which are located along the side of the access track.
The witness statement of Mr Kerr, on behalf of GVF, made on 10 May 2010, gave further information:
a) "they rest on their skids on the surface and are held down by metal pegs to stop them blowing over";
b) "the site chosen on which to assemble the first three of them was on a slope… Consequently a narrow trench had to be dug…on the upper side of the slope to receive the side of the unit so that it could be assembled on the level."
There is electric fencing around the paddocks, powered by batteries, which are charged on a regular basis within the barn.
Ducks, not hens, have been installed in the poultry units in phases during 2011. As at January 2011, there were four thousand ducks in eight sheds. At capacity, it is hoped to house five thousand ducks in ten sheds. The ducks are able to roam in the paddock, but do not have access to a pond.
The units have not, in fact, been moved in the way that was originally envisaged. Ms Bartlett, Development Manager at the Council, said in her statement dated 14 July 2011 that two units at the northern end of the site had been moved, and that Mr Shaw had informed her that the units would be moved in 5 to 6 weeks when additional ducks arrived. However, Mr Jones, who lives nearby and gave evidence on behalf of the Claimant, said that the two units to which Ms Bartlett referred were only moved in order to put them into position along the track, before being fitted out and receiving ducks for the first time. He said none of the units has been moved since being placed in position between April and October 2010.
According to Mr Shaw, Head of Rural Enterprises at GVP, the absence of moves was initially explained by the delay in bringing the units into use, caused by the decision to switch from hens to ducks. Two units were fully stocked in May 2011; two in August 2011; two in October 2011; one in January 2012 and two in April 2012. There have been some attempts to move the units within the paddocks but the towing support bars supplied by the manufacturer failed. Mr Shaw referred in court to the problem of the additional weight created by the internal fittings. On 2 July 2012, just before this hearing, GVP managed to move two units with a tractor and a newly fabricated tow bar and A frame.
Mr Shaw said that he anticipated that the units would in future be moved a minimum of three times a year, less frequently than required with hens, because ducks produce less waste and do not scratch the earth. But poor weather could result in the need to move them more frequently. Also, once a flock comes to the end of its useful laying life, it will be destroyed and the whole unit will be completely decontaminated and moved onto fresh ground.
Mr Shaw explained that a unit could only be moved off this particular site (where road access was restricted) by partial or complete dismantling, and transportation on a trailer or lorry.
On 23 April 2010, the Council served a Temporary Stop Notice on GVP pursuant to the provisions of section 171E TCPA 1990. It prohibited the excavation of soil and surface materials from the land and the alteration of levels of the land.
On 21 May 2010, the Council issued an Enforcement Delegated Report. It concluded that some of the activities that had taken place at the site did constitute breaches of planning control, namely, works for the creation of an access track, hard standing, new water supply pipes, alterations to the existing barn, works in respect of ponds and drainage engineering works and the introduction of a mobile home.
However, the Council decided that the placing of the poultry units on the land at the site did not constitute development. The Council therefore concluded that no environmental impact assessment of that activity was required and no enforcement action could be taken.
The reasoning of the Council (through its officers) was set out as follows in the report:
"Over the past few weeks ten prefabricated mobile poultry units have been delivered and assembled on site. Each one measures about 20m x 6m x 3.5 metres in height and will house 1,000 birds (known as a flock). This will provide for a free range egg production operation in which each flock...
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