Planning matters blog | Lichfields

Planning matters

Our award winning blog gives a fresh perspective on the latest trends in planning and development.

What came first, the chicken or the EIA rEGGs?
The Court of Appeal has quashed a planning permission granted by Shropshire Council in 2017 for an intensive poultry farming facility near Bridgnorth in Shropshire. The fundamental question of the appeal was whether the LPA, when considering the application, failed to properly consider the likely effects of odour and dust arising from manure disposal. Reviewing this judgement has highlighted the consequences of approving an application which relies on an inadequate environmental statement (ES); and has also clarified the relationship of environmental permits to Environmental Impact Assessment (EIA) planning applications. Context of the case On 1 September 2017, Shropshire Council granted permission for the erection of four poultry buildings at Footbridge Farm. The owner, also the applicant, intends to use the buildings for intensive rearing of poultry. The facility would operate on a 48-day cycle, rearing 210,000 chicks for 38 days and then cleaning the buildings to prepare for the next cycle. Roughly 1,575,000 broiler chickens would be reared over a year. This would produce approximately 2,322 tonnes of manure, which would be disposed of on the applicant’s fields, and any surplus would be spread on third party owned fields near to residential areas. The appellant is a local resident, Ms Squire, who lives about 300 metres from land on which manure might be spread. On granting planning permission, the Council concluded that the technical assessments submitted within the ES ‘are generally satisfactory’, and that ‘adverse impacts on local amenity can be satisfactorily safeguarded’. Additionally, the environmental permit issued and regulated by the Environment Agency (EA) would provide another level of control sufficient to address dust and odour issues. Following the High Court’s dismissal of the appellant’s claim for Judicial Review of the Council’s decision, Ms Squire appealed against the Judge’s decision on two grounds: The Judge was wrong to conclude that the environmental permit issued under Reg.13 of the Environmental Permitting Regulations would control the management of manure outside the site to which the permit is related; and The Judge was wrong to consider the development’s likely environmental effects had been assessed adequately and lawfully in accordance with the EIA legislation. Broiler chickens - source: Wikimedia Commons Summary of the judgement The Court of Appeal first addressed the interpretation and scope of the Environmental Permit, which would be a requirement for an operation of this scale. It held that there was no misunderstanding of the permit’s control, which clearly included removal of manure from the site and the EA would enforce this. The officers had simply misunderstood the role of a future ‘manure management plan’ (MMP) that was referenced in the EAs consultation advice letter as though it were an assessment to reduce the risk of pollution from manure disposal. MMPs are a requirement under the Environmental Permit Regulations (not under the site-specific permit) and must also comply with the statutory Code of Good Agricultural Practice. However, the EA had made clear in its letter that the MMP would only relate to the applicant’s land and would not control any issues arising from activities outside of the permit boundary (drawn around the chicken sheds only). More importantly, the MMP specifically relates to risks of polluting surface or groundwater – not odour and dust. Therefore, it cannot be assumed that in enforcing the site’s permit, the EA will provide additional control contributing to minimising effects of odour and dust outside the permit area. Manure spreading at a Welsh farm - source: Wikimedia Commons In relation to the soundness of the EIA, the Court considered that impacts on neighbouring properties, generated by odour and dust from manure disposal activities were indirect impacts of the proposed development therefore must be assessed through the EIA. However, the ES did not identify the third-party land on which the 1,500 tonnes of manure was going to be spread each year, nor did it attempt to provide a meaningful assessment of the likely polluting effects the manure spreading – either on the applicant’s land or any other land. The Court held that the requirement of an MMP to be produced in the future, was not a substitute for the lack of assessment in the ES, and therefore, the ES was deficient and not compliant with the EIA Regulations. The appeal was allowed, on both grounds. Lessons learned from this case Although the case’s poultry context may not be relatable to many, this decision is a reminder of the importance of ensuring that all EIAs clearly identify and fully assess all impacts of a development - direct and indirect. As the PPG states, mitigation measures are designed to limit or remove any effects of a development, consequently an ES cannot rely on mitigation to mitigate an effect that hasn’t been identified within the assessment. Furthermore, care must be taken to understand the scope, role and effect of any regulatory process, such as environmental permitting, that is considered within an ES. For instance, considering whether a permit can be relied upon as adequate mitigation, and whether mitigation is required beyond the regulatory boundary of such a permit. The appeal could perhaps also result in more thorough scrutinisation of generalised commitments which have become commonplace within ESs for similar developments, such as compliance with the Code of Good Agricultural Practice, or the fact that the process of manure spreading, as intended in this application, is common practice in farming of this intensity. Overall, we now know not to get over EGGcited when chickens are involved, as you should never hurry EIAs concerning slurry!

CONTINUE READING

Mitigation Matters for EIA Screening

Mitigation Matters for EIA Screening

Liz Evans 11 Jan 2019
A benefit of the current EIA Regulations is the ability to include mitigation at the screening stage to ensure that EIA is undertaken only for those projects that are likely to have significant effects on the environment. Therefore, if it can be demonstrated that the proposed development includes measures to avoid, or prevent, what might have otherwise been significant environmental effects, EIA is not required. Lichfields has successfully taken this approach to EIA screening opinion requests, committing to standard mitigation such as a Construction Environmental Management Plan, Landscape and Ecology Management Plan etc, as well as project-specific mitigation measures such as the installation of a new Sewage Treatment Plant and a Landscape Strategy that responds to particular species within and around a site. Whilst this can justify that EIA is not required, in order to reach this point it may be necessary to frontload assessment work to establish a robust evidence base. This can be challenging to early project budgets, although it should not generate abortive work, as standalone technical reports will likely still be required on specific issues. Should prior survey work not be possible a ‘worst-case’ scenario could be adopted, although this may commit the project to mitigation over and above what is necessary. Ultimately, however, a commitment to mitigation measures at the EIA screening stage can overcome the requirement for EIA to be undertaken for a project. Recently the Secretary of State successfully defended a legal challenge against his decision that the redevelopment of a disused sports complex was not EIA development[1]. The Claimant, a local resident, submitted three challenges, one of which was that “The Defendant placed undue reliance upon conditions in an attempt to remedy the adverse environmental effects which were likely to arise from the proposal”. In order for that proposal to not comprise EIA development all parties involved agreed that a contaminated land condition would need to be attached to any grant of planning permission, requiring further land contamination investigation(s) to be undertaken and approved by the Council prior to the commencement of development, with subsequent measures/mitigation/validation as required. The screening opinion recognised that there were concerns with contaminated land and that there was moderate risk from ground gas and the potential for pollution to surface and groundwater. A key question for the Court was whether the development would be likely to have significant effects on the environment. In defining this term the judgement refers to past rulings where ‘likely’ is real risk and not probability, although it is acknowledged that an exercise of judgement or opinion is still involved. It is the decision maker’s role to judge whether the development is likely to have significant environmental effects. In this case the ruling found that the challenge was unsupported by evidence, given that the Secretary of State’s screening direction assessed the risks and there were no objections raised by the Environment Agency to the Geo-Environmental Ground Investigation report. It was ruled that the Claimant did not establish an arguable justification that these conclusions were wrong. Whilst this case was considered against the superseded 2011 EIA Regulations (which did not specifically refer to the application of mitigation at the EIA screening stage) the current EIA Regulations do allow for this, which arguably strengthens the role of mitigation in determining whether a project comprises EIA development. The proposed mitigation should, however, be supported by evidence to allow the local planning authority to reach a reasoned conclusion on the need or otherwise for EIA and to ensure that the applicant is not committing to overly onerous and potentially costly mitigation in order to minimise the risk of challenge. [1] Kenyon, R (On the Application Of) v Wakefield Council & Ors [2018] EWHC 3485 (Admin) (18 December 2018)  © Cultura Creative (RF) / Alamy Stock Photo

CONTINUE READING