The importance of an adequate EIA: the United Kingdom Court of Appeal has quashed the United Kingdom Planning Court's decision to uphold the grant of a planning permission for an intensive poultry farm due to an unlawful EIA

In brief

The case of R (Squire) v Shropshire Council [2019] EWCA Civ 888 concerned an appeal to the United Kingdom Court of Appeal (Court of Appeal) against the United Kingdom Planning Court's (Planning Court) decision to dismiss a submitter's (Submitter) claim for judicial review of the decision by the Shropshire Council (Council) to grant planning permission to a landowner (Landowner) for the construction of four poultry buildings and associated development located in Tasley, England. 

The Court of Appeal allowed the appeal on the basis the Council had not properly assessed the environmental information in respect of the proposed development's impacts on odour and dust emissions. The Court of Appeal held that the Planning Court had erred in concluding that the environmental permit would control the management of manure outside of the site of the proposed development, and that the environmental impact assessment (EIA) undertaken for the proposed development was adequate.

Background

The Landowner applied for planning permission for the proposed development, being an intensive poultry farm. The proposed development was intended to operate on a 48-day cycle and, in the course of a year, an estimated 1,575,000 broiler chickens would be reared and 2,322 tonnes of manure produced. The manure was to be stored and spread on the site of the proposed development and other farmland close to the site of the proposed development. An EIA was completed for the proposed development, and the Environment Agency in April 2017 issued an environmental permit for the facility. The Council consequently granted planning permission for the proposed development.

In the Planning Court, the Submitter argued that the grant of the planning permission was unlawful on the grounds that the Council had failed to consider the likely environmental effects of the proposed development and the position of the Environment Agency in respect of the development application. The Planning Court dismissed the Submitter's application for judicial review as it concluded that the environmental permit controlled the management of manure outside of the site of the proposed development, and that the EIA was adequate and lawful.

Issues

The Court of Appeal considered the following issues:

• whether the Planning Court was wrong to conclude that the environmental permit issued by the Environment Agency would control the management of manure outside of the site of the proposed development; and

• whether the Planning Court had been wrong to conclude that the EIA undertaken for the proposed development was adequate and lawful, particularly in respect of the likely effects of odour and dust arising from the storage and spreading of manure.

The Planning Court had erred in concluding the environmental permit would control the management of manure outside of the site of the proposed development 

The Submitter argued that the Council misunderstood the scope of the environmental permit, and contrary to the Planning Court's decision, the environmental permit did not control the management of manure outside of the site of the proposed development. 

The Council considered the effect of the environmental permit issued to the Landowner in making its decision to grant planning permission. Relevantly, the Council argued that the proposed development would be regulated by the Environment Agency, and that the environmental permit was sufficient to control noise, dust and odour pollution. Additionally, the Council argued that the transportation and spreading of manure on other land was subject to a manure management plan regulated by the environmental permit.

The Court of Appeal however concluded that the Council's view was not an accurate reflection of the environmental permit and turned to the advice given by the Environment Agency on 17 March 2017 and the Environment Agency's Sector Guidance Note EPR 6.09, 2010 (Guidance Note).

The Court of Appeal found that, under condition 2.3.3 of the Guidance Note, an operator must keep written evidence of the arrangements it makes when transporting and spreading manure and must record details of the land to which it is taken in accordance with the Code of Good Agricultural Practice (COGAP) and the manure management plan for the receiving land (see [52]). Consequently, the Court of Appeal found that the Guidance Note was clear that the spreading of manure, and its subsequent impacts on odour and dust, from a poultry facility is expected to be undertaken in accordance with the COGAP and is not an activity regulated by an environmental permit.

The Court of Appeal noted that the Environment Agency stated in its advice that the environmental permit "would not control any issues arising from activities outside the [site of the proposed development]", and that the Landowner ought to prepare a manure management plan with respect to the spread and storage of manure to reduce the risk of leeching into groundwater or surface water in accordance with the requirements under the Environmental Permitting (England and Wales) Regulations 2010 (UK) No. 675 and COGAP. The Court of Appeal relevantly concluded that the advice was clear in that the environmental permit did not regulate conduct outside of the site of the proposed development, and that the manure management plan was only concerned with the proposed development in respect to the leeching of manure into groundwater or surface water, rather than odour and dust.

The Planning Court erred in concluding that the EIA was adequate and lawful

The Submitter argued that the EIA for the proposed development was unlawful as it failed to appropriately assess the effects of odour and dust caused by the storage and spreading of manure, including outside of the site of the proposed development. 

The EIA relevantly stated as follows:

• the proposed development would produce an estimated 1,151 tonnes of manure that would be exported to and spread on, a "neighbouring arable farm" in accordance with COGAP (Appendix 4 of the EIA);

• the proposed development would cause odour emissions at nearby properties (Chapter 8 of the EIA);

• the proposed development will produce dust (Chapter 9 of the EIA).

The Council found that as the proposed development was to be controlled under an environmental permit, the "likelihood of significant impact on the environment was negligible due to the strict regime of control" (see [63]). 

The Council additionally found that the proposed development could operate "without causing a significant impact on the surrounding area", and that although the spreading of manure would cause a "localised odour", it would be "short lived" in the event that "agricultural best practice" was adhered to. 

The Court of Appeal held that the EIA was inadequate and unlawful on the basis that the EIA: 

• failed to appropriately identify the third party land on which an estimated 1,151 tonnes of manure was to be spread;

• failed to meaningfully assess the impacts of dust and odour from the storage and spreading of manure on the site of the proposed development or on a third party's land;

• failed to anticipate a future manure management plan or arrangements for the storage and spreading of manure on the site of the proposed development;

• failed to predict the pollution caused by the proposed development and its associated activities;

• failed to consider any measures to be applied to third party land; and

• unsuccessfully assessed the impacts of the proposed development. 

The Court of Appeal also held that the Council had failed to acknowledge, or make a conscious attempt to assess the proposed development, and that the Council had not gone beyond generalities, and as such had failed to make good the lack of assessment in the EIA. 

No justification to withhold an order to quash the planning permission to enable the Council to properly comply with the EIA regulations

Approximately four months after the decision of the Court of Appeal, the Landowner entered into a planning obligation under section 106 of the Town and Country Planning Act 1990 (UK) c. 8 in the form of a unilateral undertaking. The Landowner submitted that it would not house any poultry in the proposed poultry buildings until it had submitted to the Council a manure management plan and such plan was approved. 

The planning obligation stated that the manure management plan must adhere to "the relevant parts of the Department for Environment and Food Affairs Guidance" and include restrictions on the spreading of manure to agricultural land to ensure that there are no unacceptable effects on residential and public amenity. Additionally, the planning obligation noted that arrangements for complaints in respect of odour and dust, and the recording of names of third parties to whom manure is transported to and disposed are to be in place. Lastly, the planning obligation stated that manure is only to be provided to a third party who agrees in writing to comply with the relevant parts of the manure management plan.

The Council argued that under section 31(2A) of the Senior Courts Act 1981 (UK) c. 54, relief ought be refused because it was "highly likely" that the Council's decision "would not have been substantially different" had the planning obligation been before the Council. 

The Court of Appeal rejected the Council's argument and found that the planning obligation illustrated the uncertainties of the environmental impacts of odour and dust in the EIA. Consequently, the Court of Appeal held that there was no justification to withhold an order to quash the planning permission.

Conclusion

The Court of Appeal allowed the Submitter's appeal and held that the Planning Court had erred in its decision.