The interaction between planning and other regulatory controls - R(Squire) v Shropshire Council

Thu, 30 May 2019

The NPPF at paragraph 42 recognises that “other consenting bodies” have a part to play in the control and regulation of development requiring planning permission.  Planning conditions “should be kept to a minimum” (paragraph 55).  A planning condition concerning matters which are to be controlled under an alternative ‘regime’ are unlikely to meet the test of ‘necessity’.  Where the matter to be controlled is likely to give rise to significant environmental effects, thus triggering the requirement for Environmental Impact Assessment (“EIA”) there is an added layer of complexity.  The recent case of R(Squire) v Shropshire Council [2019] EWCA Civ 888 illustrates the potential pitfalls for local planning authorities and applicants for planning permission.

The Council granted planning permission for the erection of four large poultry sheds.  1,575,000 chickens a year would be raised for food production, producing 2,322 tonnes of manure / litter which the applicant proposed would be spread on his land and that of his neighbour as agricultural fertilizer. Local residents objected, inter alia, on the grounds that the manure spreading would give rise to unacceptable odour and dust harming their residential amenity.  There was no dispute that the proposal was EIA development and that the effects of manure spreading were indirect or secondary effects that fell to be assessed.  By the time the application came before the planning committee the Environment Agency (“EA”) had issued a permit under the EPR.  The Permit effectively provided for the submission and approval of a Manure Management Plan (“MMP”) and compliance with it thereafter.  The Permit also required, by condition, that the permitted activities be operated in accordance with Best Available Techniques (“BAT”).

A local resident brought a claim for judicial review to quash the permission. At first instance ([2018] EWHC 1730 (Admin)) the Judge found for the Council / interested party.  The local resident appealed.

The first issue was whether the activity of manure spreading would be governed by the scope of the Permit.  Lindblom LJ gives a useful analysis of how Permits should be construed.  He found that the Council had not misunderstood the permit.

However, the court found that the EA had been clear in its consultation response that while it would enforce the conditions in the Permit on the applicant’s own land, it would not do so on third party land (ie his neighbours).  Moreover, the EA’s consultation response made it sufficiently clear that its primary concern about manure spreading was the risk of manure leaching or washing into groundwater or surface water and not odour and dust impacts.  So while the Permit could control these matters through a MMP it was not clear that the EA would ensure it did, or if it did, whether this ‘other regulator’ would necessarily take enforcement action.  In respect of the third party land, the EA was clear that it would not.  So the error of the LPA was not in respect of the scope of the Permit itself, but in the scope / effect and enforcement of the future MMP required by the EA under the Permit.

So the lesson for LPA’s is clear:  when deciding what controls are needed through the planning regime, there needs to be clarity as to:

  • What other regulatory controls are available, and
  • What the regulator has indicated it will include as control measures and why, and
  • In what circumstances the regulator has said it will take enforcement action, and
  • What action the regulator has said it will take by way of enforcement, and so
  • What other / residual controls are necessary through the planning regime.

If in doubt, the LPA should impose controls (conditions / obligations) through the planning regime  to ensure that nothing ‘falls between the cracks’.

As already noted, this was EIA development.  The Environmental Statement (“ES”) submitted by the applicant assessed in some detail the effects of dust and odour from the poultry sheds themselves (point of origin, duration, location of local vulnerable receptors, wind direction etc etc).  But save to note that about half the manure would be spread on identified fields in the applicant’s ownership and that the other half would be exported to a neighbour’s land (the fields were not identified) it contained no further ‘assessment’.  The claimant criticised the ES as being deficient.  There was however, further “environmental information” before the committee in the form of the environmental protection officer’s advice and that of the planning officer both of whom regarded the spreading of manure as a ‘normal’ agricultural activity in the local area, that any effects would be short-lived where agricultural best practice was followed, and that the Permit (and potentially other controls over statutory nuisance) would mean that there would not be likely to be significant environmental effects.  However, in addition to the misunderstanding of the future MMP to be submitted to the EA (see above) Lindblom LJ held that the requirement under the EIA Regulations was for a “meaningful assessment” of the likely effects and that the officer’s “broad and generalized comments” did not make up for the lack of a technical assessment in the ES.  He concluded “Ultimately there was nothing within the environmental information for this project that qualified as a proper assessment, in accordance with the EIA Regulations, of the effects of odour from the storage and spreading of manure.”

The lessons for the LPA (and applicants) are clear:

  • If there are indirect/secondary effects that need to be assessed, the assessment should be as complete as for the primary effects.
  • LPAs should not rely on their own ‘generalised’ assessment if there is a deficiency in the applicant’s technical assessment – instead use regulation 25 powers to require further information.

In this case, once the pre-application protocol ‘letter before claim’ had been received the applicant entered into a unilateral planning obligation requiring an (additional) MMP to be submitted to the LPA in order to give the Council control over dust and odour from manure spreading.  However, Lindblom LJ held that its terms did not overcome the lack of a proper assessment of the effects of dust and odour from manure spreading in the EIA process.  The court therefore declined to refuse relief under s31(2A) of the Senior Courts Act 1981.

 

Hugh Richards acted for the local planning authority.

Christian Hawley acted for the interested party.

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