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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!

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Smell the coffee

Smell the coffee

Jonathan Standen 07 May 2019
Addressing Climate Change through Waste Management Practice in the UK The Climate Change Commission (CCC) last week issued a stark call to the UK Government and industry to urgently put in place measures to ensure the UK contributes to stopping global warming. The Commission’s report ‘Net Zero - The UK’s contribution to stopping global warming’, published in May 2019, sets out how the UK should set and vigorously pursue an ambitious target to reduce greenhouse gas emissions to ‘net zero by 2050, ending the UK’s contribution to global warming within 30 years’. The report sets out that a net zero greenhouse gas target for 2050 would respond to the latest climate change science and fully meet the UK’s obligations under the Paris Agreement (2015). As a way of reminder, the Paris Agreement is an agreement achieved within the United Nations Framework Convention on Climate Change (UNFCCC) dealing with greenhouse gases (GHG) emissions mitigation, adaptation and finance starting to apply from the year 2020.The CCC reporting states that ‘In committing to a net zero GHG target, Parliament must understand that, while many of the policy foundations are in place, a major ramp up in policy effort is required. Noting that the foundations are in place including diversion of biodegradable waste from landfill, efficient buildings and low carbon heating, these policies must be strengthened, and they must deliver action.’ The net zero target goes beyond the reduction needed globally to hold the expected rise in global average temperature to well below 2o C, and beyond the Paris Agreement’s goal to achieve a balance between global resources and sinks of greenhouse gas emissions in the second half of the century. There is need however to replicate this ambitious target across the world. If this was achieved coupled with ambitious near-term reductions in emissions it would deliver, the report states, a greater than 50% chance of limiting temperature increase to 1.5%; this perfectly illustrates how much work is needed globally to address the problem we all now face. The reporting sets out a spectrum of sectors which must be addressed, including the role that food consumption and waste management plays in the overall strategy. Specifically, it recommends that biodegradable waste should not be sent to landfill after 2025, which will clearly require additional regulative and enforcement efforts with further supporting action implemented through the waste chain. The report encourages societal choices that lead to a lower demand for carbon-intensive activities, including an acceleration in the shift towards healthier diets with reduced consumption of beef, lamb and dairy products, and reductions in food waste, with one fifth of UK agricultural land shifting to tree planting, energy crops and peatland restoration. A significant contribution to methane gas emissions from landfill sites directly comes from the disposal of food waste. In the UK, it is estimated that that annually 10 million tonnes (Mt) of food are wasted. A fifth of UK greenhouse gas emissions are also associated with food, mostly created during its production. In the UK, emissions from waste sector have fallen by 69% since 1990, due to the UK’s landfill tax, which has reduced the amount of biodegradable waste going to landfill. There has also been an increase in methane captured at landfill sites. Further active steps are now being taken in waste management through the drive for greater recovery and the minimisation (if not cessation) of landfill of biodegradable waste, though the need for greater coordination within across the UK is clearly evident. Scotland currently has a target to reduce emissions of all greenhouse gases by at least 80% by 2050, when compared to its 1990 levels. The target, originally set in the Climate Change (Scotland) Act 2009, is under review as part of the new Climate Change Bill currently being considered by the Scottish Parliament which may provide for a more ambitious target to come forwards. The Waste (Scotland) Regulations 2012 ban biodegradable municipal waste (BMW) from landfill in Scotland from the 1st of January 2021. As yet, no transitional arrangements are in place, which will have significant implications for those who have responsibility of managing the waste stream. In preparation for the Regulations coming into force, the Scottish Government has now made public a report [1] it has commissioned on the current and future markets for the disposal and recovery of BMW. The reporting concludes that ‘despite the significant notice that has been provided of the ban, the alternative waste management options that will be needed may not be available at sufficient scale or at an affordable price at the point when the ban commences’. Authorities which account for 55.5% of residual household waste have made the financial investment to ensure solutions are in place before the ban comes into force. However, other authorities which account for 23.6% of household waste have no alternative arrangements in place at the moment. The remainder have long-term solutions in place but are unprepared for the short-term. The reporting also confirms that ‘commercial waste operators without access to alternative infrastructure appear yet to have made adequate preparations for the ban’. The ban in the short-term is predicted to lead to a significant rise in residual waste treatment costs for organisations that have not already secured a long-term contract, particularly so given the estimated capacity gap in waste treatment infrastructure in Scotland, which stands at approximately 1 million tonnes. The consequence of this, in the short-term at least, is that there will be a greater reliance on exports and landfill in England, though in remaining capacity terms this is also becoming limited. In England, the new Government’s Resources and Waste Strategy published by Defra in December 2018 seeks to reverse the focus on disposal to landfill with the aim to ‘redress the balance in favour of the natural world…to move to a more circular economy which keeps resources in use for longer.’ The Strategy puts in place a framework to support the step-change needed in recycling performance. In England, the ambition is to recycle at least 65% of waste arisings (and in Scotland and Wales 70% by 2025), but the recycling rate has slowed, particularly so over recent years, and it presently stands at approximately 45% (up from 11% in 2000/2001); in comparison, Wales is set to become the world leader for recycling by 2020, currently achieving recycling rates of 63.8% for municipal solid waste, which includes household plastic and other packaging. With recycling rates in England having now plateaued, during recent questions at the House of Commons Theresa May emphasised the need to maximise the amount of waste recycled, rather than sent to incineration or landfill, and warned that whilst work to drive down waste to landfill was welcomed, ‘if wider policies don’t deliver our waste ambitions in the future, including higher recycling rates, then the government will consider the introduction of  tax on the incineration of waste’. There is however a need to incentivise industries to reduce their emissions in ways which do not adversely affect competitiveness. But what part of the residual waste, the non- recyclable elements which remain after recyclable elements, have been retrieved? If the 65% recycling target is achieved, then Defra forecasts that there will still be up to 20 million tonnes of residual waste to be managed by 2035. Now, approximately 3 million tonnes of residual waste is exported from the UK to fuel energy generation.  Retaining that material in the UK, and diverting it from landfill, offers up a potential resource in the form of refuse-derived fuel; this could be treated through energy-from-waste processes to benefit home-based demands for energy generation and CO2 savings, necessary to contribute to the reduction in global warming. To conclude, it is clear that there needs to be a rapid transition to practice which, together with other greenhouse gas producing sectors, will contribute to meeting the UK’s climate change commitments. However, the true measure of success is for the UK, along with other world nations, to provide leadership including the delivery of their GHG objectives ahead of time.   [1] Waste Markets Study – Full Report (April 2019)

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