ON APPEAL FROM THE ADMINISTRATIVE COURT
MR RHODRI PRICE LEWIS Q.C. (sitting as a deputy judge of the High Court)
Strand, London, WC2A 2LL
B e f o r e :
Lady Justice King
Lord Justice Lindblom
| R. (on the application of Squire)
|- and -
- and -
for the Appellant
Mr Hugh Richards (instructed by Shropshire Council) for the Respondent
Mr Christian Hawley (instructed by Hewitsons LLP) for the Interested Party
Hearing date: 19 March 2019
Crown Copyright ©
Lord Justice Lindblom:
The issues in the appeal
The regulatory framework for environmental permits
The Code of Good Agricultural Practice
Sector Guidance Note EPR 6.09
"2.3.3 The operator shall take appropriate measures in off-site disposal or recovery of solid manure or slurry to prevent, or where this is not practicable to minimise, pollution."
The guidance on this condition says that the operator "should maintain written evidence of the arrangements in place when [he exports] slurry and manure such as … records of the quantities and the date of transfer … to … [a] third party for spreading to land" and "the names and addresses and land acreage available where manures and slurries are exported for spreading to land". It goes on to say that "[where] a 'manure agent' or other third party accepts liability for removing manure or slurry from the installation, [the operator] should provide acceptable confirmation that[,] … as a minimum, the third party will ensure that the manure is spread to land in accordance with [the COGAP] … or … that the spreading will be in accordance with a manure management plan for the receiving land". Under the heading "Spreading of manure and slurry to minimise emissions to air", it emphasizes the need to "take appropriate measures when spreading manure or slurry to land to prevent, or where this is not possible to minimise the emissions to air in implementing [the] manure management plan".
The Environment Agency's guidance on the storage and spreading of poultry manure
The regime for EIA
The environmental statement for the proposed development
"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."
"It is anticipated that broiler litter (estimated at 1,150 tonnes) will be exported onto a neighbouring arable farm which lies outside the NVZ. When exporting (or importing), you should be aware of the following:
Records of imports and exports will need to be maintained as evidence of compliance with this requirement, and should include as a minimum, the type of organic manure exported, volume, and date of movement and name/address of recipient."
In section 4, "Storage", it said that "[manure] from the broiler sheds will be covered with polythene sheeting in suitably sited field heaps prior to spreading to land". It acknowledged the importance of adhering to the relevant "recommendations in [the COGAP] when spreading manure" and listed nine of those recommendations. Appendix 2, "Risk Maps for Manure and Slurry Application", stated that "[a] Manure Management Plan has been produced", but that seems to have been a reference to the Manure Management Report itself. This appendix identified "no-spread areas, high risk areas and those areas of the farm that are suitable for applications of manures for most of the year" and "the amount of land available to take the manures produced". In section 5, "Recommendations & Next Steps", the Manure Management Report said that "[a] minimum of 138.08ha … of land will be required to export an estimated 1,151 tonnes of broiler litter when the enterprise is fully operational", and that Mr Bower "should ensure that [he] can secure the non NVZ land in the locality to export the broiler litter".
The Environment Agency's response to consultation
"Environmental Permitting Regulations: The proposed development will accommodate up to 210,000 birds, which is above the threshold (40,000) for regulation of poultry farming under the Environmental Permitting (England and Wales) Regulations (EPR) 2010. The EP controls day to day general management, including operations, maintenance and pollution incidents. In addition, through the determination of the EP, issues such as relevant emissions and monitoring to water, air and land, as well as fugitive emissions, including odour, noise and operation will be addressed.
Based on our current position, we would not make detailed comments on these emissions as part of the current planning application process. It will be the responsibility of the applicant to undertake the relevant risk assessments and propose suitable mitigation to inform whether these emissions can be adequately managed. For example, management plans may contain details of appropriate ventilation, abatement equipment etc. Should the site operator fail to meet the conditions of a permit we will take action in-line with our published Enforcement and Sanctions guidance.
A Permit application has been submitted and, whilst not issued yet, there have been no concerns raised by my Permitting colleagues.
For the avoidance of doubt we would not control any issues arising from activities outside of the permit installation boundary. Your Public Protection team may advise you further on these matters.
Manure Management (storage/spreading): Under the EPR the applicant will be required to submit a Manure Management Plan, which consists of a risk assessment of the fields on which the manure will be stored and spread, so long as this is done so within the [applicant's] land ownership. It is used to reduce the risk of the manure leaching or washing into groundwater or surface water. The permitted farm would be required to analyse the manure twice a year and the field soil (once every five years) to ensure that the amount of manure which will be applied does not exceed the specific crop requirements i.e. as an operational consideration. Any Plan submitted would be required to accord with the Code of Good Agricultural Policy (COGAP) and the Nitrate Vulnerable Zones (NVZ) Action Programme where applicable.
The manure/litter is classed as a by-product of the poultry farm and is a valuable crop fertiliser on arable fields.
Separate to the above EP consideration, we also regulate the application of organic manures and fertilisers to fields under the Nitrate Pollution Prevention Regulations.
The environmental permit
"1.1.1 The operator shall manage and operate the activities:
(a) in accordance with a written management system that identifies and minimises risks of pollution, so far as is reasonably practicable, including those risks arising from operations …
"2.3.5 The operator shall take appropriate measures in disposal or recovery of solid manure or slurry to prevent, or where this is not practicable, to minimise pollution."
Schedule 2, "Waste types, raw materials and fuels" refers only to "Fuel for biomass boiler units".
The council's decision to grant planning permission
Reconsultation – 14/7/17 comments: It is my professional opinion that a poultry operation of this size and scale can operate without causing significant impact on the surrounding area. As such I have no objection to the application and have no conditions to recommend with the exception of recommending that poultry numbers are conditioned as these were the basis of input parameters on environmental reports reviewed.
The site will be regulated under an Environmental Permit issued and regulated by the EA. As a result it is not the place of the planning system to condition aspects that the permitting regime will address which included odour and noise.
Comments 28/6/17: Having reviewed comments from the odour modelling consultant in response to concerns raised in regard to the odour assessment I can confirm that I am in general agreement with the odour consultant and have no concerns regarding odour.
Comments 16/5/17 on detailed objection from Professor Lockerbie [of Stirling University]:
Professor Lockerbie correctly states the odour assessment does not take into consideration spreading of manure. This is a common agricultural [practice] taking place in the UK and can occur on the land currently. Although spreading of manure does cause localised odour it is short lived where agricultural best practice e.g. ploughing in asap, takes place. Stockpiled manure produces odour for a time until a crust forms at which point little to no odour is emitted. Again this could occur without the development and is not considered relevant. Should manure be stockpiled inappropriately close to receptors legislation exists to address this. …".
"… I do not consider any additional odour assessment is necessary to support this application and find the initial assessment submitted to be generally satisfactory.
Having considered the amended noise and odour assessment I do not consider it likely that the development will have a significant adverse impact on existing properties or areas where properties may be proposed in future. As a result I have no objections to the proposed development as it is possible to be developed in such a way which will not have a significant impact on nearby land uses. As a result the EA permit is sufficient to control noise and odour.
"6.7.5 … The planning application is accompanied by a Manure Management Plan (MMP) … , which identifies the land available at the farm for safely spreading poultry manure and indicates how much would need to be exported. Officers recognise that poultry manure is an agricultural product and fertiliser, and that spreading to farmland is controlled under the Nitrate Pollution Prevention Regulations regulated by the Environment Agency. … Some of this manure will be spread on farmland at Footbridge Farm. Due to controls over nitrogen loading the MMP states that there would be a need to export some of the manure to other farms. The MMP states that manure would be covered with polythene sheeting in suitably sited field heaps prior to spreading to land. The Environment Agency has confirmed that these matters are controlled under the Manure Management Plan that is required as part of the Environmental Permit. As such it is considered that there is an appropriate mechanism for regulating this element of the overall poultry operation."
"6.8.13 The Public Protection Officer has provided further comments following the receipt of the above concerns. The Officer has confirmed that he concurs with the findings of the report and that a poultry development of the scale and size proposed can operate at this site without causing a significant impact on the surrounding area. In addition further clarification has been provided by the applicant's agent and consultant. Officers consider that the odour report has been based upon relevant Environment Agency guidance. … No concerns have been raised over the methodology of the report by the Agency or the Public Protection team. The proposal should be considered in relation to local and national planning policy and in making a decision it is not considered that weight can be given to guidance relating to broiler facilities in Australia. The proposal does not seek permission for manure spreading. This is an agricultural activity and any permission granted for the broiler operation would not seek to control the location for manure spreading. This matter is controlled by other regulations.
"6.8.16 An Environmental Permit for the operation has been issued and the Environment Agency has confirmed that, through this, issues such as odour, noise and dust will be addressed. Officers consider that this will provide an effective system for controlling emissions from the facility. …".
"7.1 … The concerns raised regarding the potential impacts of the proposal, including in relation to residential amenity issues such as odour, have been given due consideration. Officers consider that the technical assessments submitted as part of the Environmental Statement are generally satisfactory. No significant concerns have been raised through consultation with the relevant pollution control bodies to suggest that the proposal is not an acceptable use of land. Officers consider that adverse impacts on residential and local amenity can be satisfactorily safeguarded. In addition the Environmental Permit that has been issued for the operation would provide an additional level of control. …".
The judgment in the court below
Did the council misunderstand the environmental permit?
Was the EIA for the development flawed, and the council's decision therefore unlawful?
Section 31(2A) of the Senior Courts Act 1981
Lady Justice King
Sir Terence Etherton M.R.