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Planning matters

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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 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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Permitted changes of use – a solution for the high street?
As highlighted in an earlier blog (Jonathan Wallace, Town Centres: A Time for Change), the high street is finally climbing up the political agenda. Although other issues – the housing crisis, climate change and of course Brexit - remain at the top of the list, the Government is, at last, waking up to the fundamental change being experienced in our town centres. We now have a High Streets Minister (Jake Berry) who, to his credit, set up an expert panel led by Sir John Timpson – of the shoe repairs chain, a staple of many high streets across the country. This panel published their recommendations in the High Street Report in December 2018. These included the creation of a High Streets Task Force to share information and expertise across the country, the Future High Streets fund (which has since been launched) and other short term solutions, related to town centre housekeeping, empty shops and parking. In parallel to this work, the Government undertook a consultation on supporting the high street, with a number of changes to Permitted Development Rights (PDRs) being announced. These new rights, which came into force on 25 May 2019, allow: shops (A1), financial and professional services (A2), hot food takeaways (A5), betting shops, pay day loan shops and launderettes to change use to an office (B1(a)); and hot food takeaways (A5) to change to residential use (C3). In addition to the above, the temporary change of use between commercial and community uses has also been extended from two to three years and the scope of the PDR extended to allow temporary change of use to certain class D1 uses. This is intended to give business and community organisations longer to test the market, before applying for a more permanent permission. My colleagues Steven Butterworth and Jennie Baker previously asked the question - would the new PDRs really improve vibrancy in town centres? The additional flexibility this brings to help centres adapt to change is a good thing. In many areas, particularly those with higher vacancy rates and limited investment, a ‘laissez-faire’ approach which prioritises re-occupation of empty units will be appropriate. The temporary changes of use also allow authorities time to weigh up any potential harmful impacts before granting permanent permissions. Some may have concerns that these recent changes could result in ‘dead’ frontages and/or that the new uses might not be ‘the right type’. Don’t forget, however, for permanent changes of use local authorities can use the prior approval process to consider the potential impact upon the provision of services or the sustainability of key shopping areas. Depending on the end use, they can also consider issues such as highways impact, noise, flooding, contaminated land and design/external appearance. Although perhaps more draconian, they also have the ability to impose Article 4 Directions which restrict PDRs. Lichfields has provided a quick reference guide to the various PDRs for changing between main town centre uses. Inspection of the different permutations raises a number of questions, not least whether a simplified version of both the Use Classes Order and these PDRs would benefit everyone. Why allow a bank to change to an office, dwelling or leisure use, but not a café/restaurant? And why could a hot food takeaway or laundrette go to an office or dwelling, but not leisure use, which would contribute more to town centre vibrancy? Rather vaguely, MHCLG confirmed in May that they will ‘amend the shops use class to ensure it captures current and future retail models’. This will apparently include clarification on the ability of the A use classes to diversify and incorporate ancillary uses. It remains unclear, though, whether the Government will merge A1, A2 and A3 to create a single use class. Whilst keeping A3 uses separate makes more sense, it would be strange if Classes A1 and A2 were not merged, when you can already switch between the two without seeking prior approval. Source: Retail and Leisure Market Analysis Full Year 2018 (Local Data Company – May 2019) Whatever the outcome, local authorities cannot rely upon PDRs to promote the future health of town centres. A more flexible policy framework and approach to determining planning applications is critical. Too many Councils are still developing overly prescriptive policies relating to frontages and protecting Class A1 uses. Primary Shopping Areas will continue to have role in the larger centres but their role and composition must be re-imagined. How many more high profile retail chains need to fail before we recognise the need for new anchors for our town centres? There is no doubt more to come from the Government on this topic. Reliance by Councils on further PDR changes will only go a limited way to addressing the challenges town centre are facing. However, a more flexible and pragmatic approach, allied to a longer-term vision of what their town centres can be in future, and use of the many tools local authorities now have their disposal, could help to provide a catalyst for their revitalisation and re-imagination.

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