Chickens**t EIA

An interesting example last week of the legal pitfalls should planning permission be granted on the basis of inadequate environmental impact assessment.

Interesting partly because although the messages read straight across to all EIA development, including the glitziest of urban development projects, the specific question arose in a very different context:

Did a local planning authority, when granting planning permission for an intensive poultry-rearing facility, fail to consider the likely effects of odour and dust arising from the disposal of manure?

The basis for the error was a misplaced assumption that certain effects would be controlled by other regulatory processes. That is an issue which potentially arises in various development contexts.

The case is R (Squire) v Shropshire Council (Court of Appeal, 24 May 2019), with Lindblom LJ giving the lead judgment.

For a summary of the case, apologies but I will plug again Town’s “free to subscribe” weekly updating service that covers all Planning Court cases and appeals from the Planning Court. The case is summarised by my colleague Paul Arnett in the latest update.

There is much in the judgment about the proper interpretation of environmental permits under the IPPC regime and the extent to which a local planning authority should impose conditions to control matters which may in theory be controlled by other legislation where the regulator under that legislation (in this case the Environment Agency) has indicated that in practice it would not enforce, but what was particularly interesting to me was Lindblom LJ’s conclusion that at first instance Deputy Judge Rhodri Price Lewis QC “was wrong to conclude that the EIA undertaken for the proposed development – in particular the assessment of the likely effects of odour and dust arising from the storage and spreading of manure – was adequate and lawful.

The “project description” part of the environmental statement explained what was proposed:

In chapter 3, “Description of development”, in the “Project Description”, it explained that “[at] the end of each flock cycle, the buildings are cleaned out and the manure removed … and loaded directly in waiting vehicles, which are sheeted and the manure removed from the site for disposal as a sustainable fertiliser on agricultural land.”

The claimant, Ms Squire, was concerned that the 2,322 tonnes of manure to be produced annually would be disposed of by spreading it on farmland close to residential areas, including farmland not not owned by the prospective operator of the facility, Mr Bower. So how were the potential effects in terms of odour and dust, from these proposals, assessed in the environmental statement?

In its assessment of likely significant effects in the environment, the environmental statement relied significantly on an environmental permit that had been issued by the Environment Agency to Mr Bower to cover the activities proposed on his land.

In chapter 9, “Environmental Management”, under the heading “Assessment”, it acknowledged (in paragraph 9.2) the requirement for “an IPPC permit … administered by the Environment Agency”. It said that “[the] permit must take into account the whole environmental performance of the plant, covering e.g. emissions to air, water and land, generation of waste …”, and also this:

9.2 … As the proposed poultry unit will be controlled under the IPPC permitting regime, the likelihood of significant impact on the environment from the proposed development is negligible due to the strict regime of control.”

On “Odour Management”, it said that “[the] development [has] been assessed as part of the IPPC permit application and deemed acceptable subject to odour control conditions”, and that “[the] site is subject to the IPPC permit conditions which requires emissions from the activities shall be free from odour at levels likely to cause pollution outside the site” (paragraph 9.4). On “Dust”, it said that “[the] results of the DEFRA research project demonstrated that emissions from poultry units in terms of particulate matter reduced to background levels by 100m downwind of … even the highest emitting poultry houses” (paragraph 9.7). On “Manure Disposal”, it said (in paragraph 9.11):

“9.11 The proposed poultry units will operate on a floor litter basis and will generate poultry manure. The manure will be disposed of through use as a sustainable agricultural fertiliser. The [applicant’s] manure management plan is attached to this statement as Appendix 4.”

The “Summary” in paragraph 9.16 said this:

9.16 The operation of the site is subject to the rigorous controls of the Environment Agency’s IPPC permitting regime. The site is required to operate to Best Available Techniques and the conditions of the permit require the site to be free from pollution.”

However, the Environment Agency’s response to consultation had made it clear that “[f]or the avoidance of doubt we we would not control any issues arising from activities outside of the permit installation boundary“.

Lindblom LJ noted the following in relation to the environmental statement:

⁃ it did not identify the third party land on which manure was going to be spread.

⁃ there was no meaningful assessment of the effects of odour and dust from the spreading of manure, either on Mr Bower’s land or on any other farmer’s. “It did not seek to anticipate the content of any future manure management plan, including the fields to which it would relate, or the arrangements that would be undertaken for the storage and spreading of manure. It did not attempt to predict and assess the polluting effects of those activities either on land owned by Mr Bower, or on other land to which the manure management plan would not relate. The Manure Management Report did not venture to assess the effects of the arrangements to which it referred. In short, there was no relevant assessment.”

⁃ “it cannot simply be inferred from the relevant parts of the environmental statement that its authors had concluded that the proposed storage and spreading of manure on farmland was not a potential source of pollution, including odour and dust, with significant effects on the environment, which ought to be addressed in determining the application for planning permission. Those who prepared the environmental statement – and Cymru ADAS Wales, who prepared the Manure Management Report in Appendix 4 – were of course entitled to assume that the Environment Agency would perform its regulatory functions as it should, and as far as they went (see my judgment in Preston New Road Action Group v Secretary of State for Communities and Local Government [2018] Env. L.R. 18, at paragraphs 89 to 93; the judgment of Glidewell L.J. in Gateshead Metropolitan Borough Council v Secretary of State for the Environment [1995] Env. L.R. 37, at p.49; and the judgment of Gilbart J. in Frack Free Balcombe Residents’ Association v West Sussex County Council [2014] EWHC 4108 (Admin), at paragraph 100). The control that would be exerted by the Environment Agency through the environmental permit was clearly a factor they had in mind. However, they did not attempt to relate that control to the spreading of manure on land to which the permit and its conditions would not apply. Nor did they consider whether a gap would exist between the control under the permit and such control as could be exercised through restrictions and requirements imposed in the planning process. The Manure Management Report touched upon measures by which harmful effects on the environment might be reduced. But it did not consider what measures were likely to be applied on third party land, in what form such measures might be imposed as requirements attached to the planning permission – whether by conditions or by a planning obligation under section 106 of the Town and Country Planning Act 1990 – or how effective they were likely to be in reducing the effects of odour and dust.”

⁃ “the future manure management plan to which the planning officer referred in paragraph 6.7.5 of his report was not a substitute for the assessment lacking in the environmental statement. Not only was it yet to come into existence, but even when it did it was only going to relate to the storage and spreading of manure on Mr Bower’s own land, and not to the substantial quantities that were going to have to be disposed of elsewhere.”

The judge concluded:

In my view, therefore, the environmental statement was deficient in its lack of a proper assessment of the environmental impacts of the storage and spreading of manure as an indirect effect of the proposed development. In this respect it was not compliant with the requirements of the EIA Directive and the EIA regulations.”

The judge then considered whether any advice in the report to committee satisfactorily addressed the inadequacies in the environmental statement. There was not. Nothing “went beyond generalities“.

He therefore allowed the appeal – the planning permission had been issued unlawfully.

Before deciding to quash the permission, Lindblom LJ then considered whether under section 31 (2A) of the Senior Courts Act 1981, the permission should not be quashed on the basis that it was highly likely that the council’s decision would have been substantially different had the legal error not occurred. Mr Bower sought to argue that the position had changed because, after the proceedings had been issued, he had entered into a section 106 unilateral undertaking so as to control the effects arising by way of a manure management plan. The judge did not consider that the undertaking saved the permission from being quashed:

The planning obligation itself illustrates some of the uncertainties persisting at the time of the council’s decision. It does not, however, overcome the lack of a proper assessment of the environmental effects of odour and dust in the EIA. There is, in my view, no justification here for withholding an order to quash the planning permission, which will enable the council, when redetermining the application, to ensure that the requirements of the EIA Directive and the EIA regulations are properly complied with“.

The lesson is to make sure that any environmental statement properly assesses all direct and indirect environmental effects that are likely to arise from a development, without reaching unwarranted assumptions that effects will be limited, or that mitigation will be achieved, by way of separate regulatory processes. If the local planning authority considers that the assessment is inadequate it should require further environmental information to be provided (following the procedure set out in regulation 25 of the 2017 Environmental Impact Assessment Regulations). I am surprised that the court was even prepared to consider whether deficiencies were in practice remedied by any analysis in the committee report, and not surprised that the belated decision to enter into a section 106 unilateral undertaking did not save the day.

This is no Chicken Little message that the sky is falling, but Squire is certainly a reminder of the care that is needed, particularly in relation to environmental impact assessment, in order to avoid landing in the unpleasant stuff.

Simon Ricketts, 1 June 2019

Personal views, et cetera

Author: simonicity

Partner at boutique planning law firm, Town Legal LLP, but this blog represents my personal views only.

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