QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT:PLANNING COURT
Bull Street, Birmingham B4 6DS
B e f o r e :
| The Queen on the application of David Palmer
|- and -
|James Davenport (t/a Foxley Estate), DJ and IR Powell
Matthew Reed (instructed by Herefordshire Council Legal Services) for the Defendant
The Interested Parties did not appear and were not represented
Hearing dates: 3-4 August 2015
Crown Copyright ©
HHJ David Cooke:
Ground 1: adequacy of flood mitigation
"Failing to give consideration to whether any of the New Elements and/or those parts of the existing Proposed Development, including the attenuation pond and the outfall/outflow from it, for which no/ insufficient details had been provided (hence the Council's imposition of conditions to the Permission requiring details) were likely to give rise to significant environmental effects, whether alone or in combination, not least the possibility that they might require an increase in impermeable area and/ or the expansion/relocation of the attenuation pond so failing to give consideration to whether the ES was deficient in this respect, failing lawfully to complete the EIA process and failing to have regard to material considerations."
i) The plan at Appendix 1 shows 3 silos adjacent to three of the sheds, on the hardstanding area, but none beside the fourth shed. It is assumed that an additional three similar silos will be required, but there is no space alongside the sheds for them to be built on the hardstanding shown, so an extension to that area will be required;
ii) Condition 4 of the planning permission (1/4/62) refers to construction of "the access turning area and parking facilities shown on the approved plan", but although the plan at Appendix 1 shows an access road it does not identify any vehicle turning or parking facilities. It is to be inferred, the claimant submits, that there will be such facilities and that they will entail additional hardstanding;
iii) Although there is a recommendation that each of the sheds should have an emergency exit door at the rear, the plan does not show any access to such doors, which might require additional vehicle access to the rear of the sheds. Such access might also add to the impermeable surface area.
i) The waste water tank would be above ground rather than below, and
ii) Heating would be provided by a boiler fuelled by LPG, rather than biomass, requiring LPG storage tanks to be situated somewhere on site
each of which, it is said, would or might require additional hardstanding which had not been factored in to the calculations for sizing the attenuation pond.
"Issues raised can be summarised as follows:...
- Drainage/flooding issues and concerns about climate change, and in particular concerns in relationship to Yazor Brook …
A letter has been received from the applicant's agent in response to a letter of objection … it can be summarised as follows:
- Drainage from the proposed development has been designed in accordance with the SuDS requirements. The development includes capacity on site for volume storage of any one in 100 rainfall event with 20% for climate change added. The surface water from the development will only be released into the brook at a green field run off rate. The way in which the drainage has been designed complies with the legislative requirements and will maintain the status quo with no additional loadings on the brook. The design has been accepted by the Council's drainage team…
Drainage and Flooding Issues.
Many of the letters of objection received raise issues in relation to flooding issues, with regards to the nearby Yazor Brook and capacity concerns, surface water run-off and issues in relation to drainage and development on site.
The Environment Agency raise no objections on this matter and the Land Drainage Manager also raises no objection, recommending conditions with regards to surface water outfall and attenuation structure.
Whilst concerns as raised by the objectors on this matter are noted, the development has to be considered on the merits of the application and potential flooding/drainage issues in relation to the development. The application proposes an attenuation pond in order to manage drainage on site and as such (sic) none of the statutory or internal consultees raise objections on this matter. Therefore it is considered that this matter is addressed satisfactorily and it is recommended that the conditions with regard to surface water outfall and on-site attenuation as recommended by the Land Drainage Manager are imposed.
Therefore on flooding and drainage matters the application is considered acceptable …"
i) Condition 2 required the development to be constructed strictly in accordance with the approved plans
ii) Condition 4 required that the development should not be brought into use until the access turning and parking areas shown on the approved plans were properly constructed
iii) Conditions 16, 17 and 18 required that the development should not be commenced until the council had received and approved detailed construction drawings of the attenuation pond and its outfall to the Yazor Brook, and of the design and location of the waste water storage tanks.
"32 Where there is a document purporting to be an environmental statement, the starting point must be that it is for the local planning authority to decide whether the information contained in the document is sufficient to meet the definition of an environmental statement in Regulation 2 of the Regulations…
33 The local planning authority's decision is, of course, subject to review on normal Wednesbury principles: see R v Cornwall County Council ex parte Hardy  JPL 786, per Harrison J at paragraph 65, applying R v Rochdale Metropolitan Borough Council ex parte Milne  Env LR 416 at paragraph 106…
38 The Regulations envisage that the applicant for planning permission will produce the environmental statement. It follows that the document will contain the applicant's own assessment of the environmental impact of his proposal and the necessary mitigation measures. The Regulations recognise that the applicant's assessment of these issues may well be inaccurate, inadequate or incomplete…
39 [The] process of publicity and public consultation gives those persons who consider that the environmental statement is inaccurate or inadequate or incomplete an opportunity to point out its deficiencies. Under Regulation 3(2) the local planning authority must, before granting planning permission, consider not merely the environmental statement, but "the environmental information", which is defined by Regulation 2 as "the environmental statement, including any further information, any representations made by any body required by these Regulations to be invited to make representations, and any representations duly made by any other person about the environmental effects of the development…
40 In the light of the environmental information the local planning authority may conclude that the environmental statement has failed to identify a particular environmental impact, or has wrongly dismissed it as unlikely, or not significant. Or the local planning authority may be persuaded that the mitigation measures proposed by the applicant are inadequate or insufficiently detailed. That does not mean that the document described as an environmental statement falls outwith the definition of an environmental statement within the Regulations so as to deprive the authority of jurisdiction to grant planning permission…
41 …In an imperfect world it is an unrealistic counsel of perfection to expect that an applicant's environmental statement will always contain the "full information" about the environmental impact of a project. The Regulations are not based upon such an unrealistic expectation. They recognise that an environmental statement may well be deficient, and make provision through the publicity and consultation processes for any deficiencies to be identified so that the resulting "environmental information" provides the local planning authority with as full a picture as possible. There will be cases where the document purporting to be an environmental statement is so deficient that it could not reasonably be described as an environmental statement as defined by the Regulations … but they are likely to be few and far between."
i) Some relate to elements which the objectors infer will be necessary but are not shown on the approved plans, such as vehicle parking and turning areas, and vehicle access to the rear of the sheds. It is not obvious that they are right in these contentions. It is not necessarily the case, for instance, that vehicle turning and parking cannot be accommodated on the concrete apron provided for in front of the sheds. If it is assumed that there will be an emergency exit from the rear of the sheds, it does not necessarily follow that vehicular access will have to be provided to that exit, or that any access that is provided, whether for pedestrians or vehicles, will necessarily be impermeable to water. In any event, if any such additional elements are to be constructed, they will require a separate approval, because of the condition requiring that the development be built in accordance with the presently approved plans. In that eventuality, the council will be able to consider whether separately or cumulatively they affect drainage on the site in a material way.
ii) Other elements will be necessary, and may or may not be able to be accommodated on the hardstanding area already shown or allowed for in the calculations.a) The three silos for the northernmost shed, for instance, if sited in the same position in relation to that shared as those for the others, would not appear to be able to be located on the hardstanding shown on the plan at p165. No location was given for the foul water storage tank, either when it was proposed to be underground or now that it will be above ground. The worst case would be that it would previously have been under the proposed hardstanding area, but will now be above ground and cannot be located on that area. It was suggested in Ms Hamilton's evidence that an unspecified number of above ground LPG tanks will be required for the heating system, and that these could not be accommodated on the existing hardstanding.b) However, even in the worst case scenario that all of these elements had to be located on additional hardstanding, it seems clear that the total additional area required will be trivial in comparison to that already provided for. No dimensions were provided for the footprint of the silos, but it is apparent from the plan referred to that they are tiny in relation to the sheds they adjoin. The suggested size of the foul water tank would have a surface area of approximately 25m2. No numbers or dimensions were provided by the claimant for the gas tanks, but from pictures produced of similar tanks it is again apparent that they are relatively small. The council's witness Mr. Tansley, a planning officer involved with assessing the application, said in his witness statement that they could be accommodated on the proposed concrete apron, but even if sited elsewhere the increase in water flow to the pond would be so minimal that it was not appropriate for the council to require plans for a slightly enlarged pond to be dealt with separately. Mr. Reed said that one gas tank would be required for each unit, and estimated that if separately sited the hardstanding required might be 25 m2 each, so 100m2 in all.c) There is no expert or other evidence before me to suggest that in this worst case scenario, any such additional hardstanding would overload the capacity of the proposed attenuation pond, save for Ms Hamilton's unsupported assertion that a "significantly larger" pond would be required. It does not appear that even that evidence was provided to the Council before the decision was taken. Insofar as can be ascertained from the material before me, it seems highly unlikely that Ms Hamilton can be correct. The anticipated volume of the pond at 1600m3 exceeds the calculated requirement, which already includes substantial safety factors, by a little over 4%. The impermeable area already catered for (13,766 m2) is very substantial; an additional 4% of that amount would be approximately 580m2, so that on the face of it any likely extension for these elements could be easily accommodated within the safety margin already envisaged.d) In any event, if additional hardstanding is required, the conditions imposed ensure that the council must approve it, and so will be able to consider at that point whether it is such as to require enlargement of the pond. I do not accept the submission that was made that the pond is already at the maximum possible size; there was again no evidence to that effect other than Ms Hamilton's assertion, and the inference that Mr Burton sought to draw from the reference in the drainage report to a volume of 1600m3 being achievable that this was the absolute maximum is not in my view a fair reading of the report. The actual volume of the pond will depend upon its surface area, depth and profile, and even if Mr Burton is right that the maximum depth is limited to 0.75m because of the natural water table, the shape presently shown on the plans is irregular and on the face of it easily adaptable so as to increase its surface area. It was suggested that such adaptation was not possible because there is a requirement that the pond may not be closer than 10 m from the brook; if (which seems unlikely) this is an inflexible requirement there is ample room to change the shape of the pond on sides away from the brook.e) It follows that the claimant has not shown that what has presently been approved exceeds the capacity of the drainage mitigation, or that there is any significant risk that if amendments are requested (all of which require to be approved by the council) even in the worst case the conditions attached will not be sufficient to deal with any additional flooding risk.
Ground 2: Failure to publish the Council Drainage Report
"Failing to publish the Council Drainage Report prior to the Committee Meeting contrary to the Local Government Act 1972, the Council's own constitution and natural justice, despite objectors having repeatedly raised concerns regarding the proposed drainage arrangements."
"Surface Water Drainage
A Dutch hand auger was used to examine the soils across the site down to a maximum depth of 1.2 m. Multiple borings revealed a heavily textured, silty reddish-brown soil which was almost completely waterlogged throughout a majority of the soils profiles. That description complies with the soil description provided by Soil Survey England and Wales … for the area of the proposed development. In addition soil descriptions reveal that this area experiences a high water table."
This he said was relevant to an issue (as to which see below) raised by objectors that the land was shown in the national Soil Survey maps as being in an area of Grade 1 agricultural land, whereas the developer had submitted that such maps were general only and could not be relied on at the level of an individual field, and that the field in question was of no more than Grade 3 status because of its poor drainage and water logging. Objectors had been deprived of important information that would have confirmed their argument.
Ground 2A: wrongly treating whole site as impermeable
"2A Proceeding on the erroneous basis that … additional hardstanding would not in turn affect the size of the required attenuation pond…"
This arose from a point taken in the detailed grounds of resistance that since the drainage calculations had been done on the basis that the ground was assumed to have a nil infiltration rate (i.e. no capacity to absorb water by it soaking into the ground) it had effectively been assumed that all rainwater would flow off the surface into the brook and it therefore made no difference whether any or all of the ground was covered in hardstanding. Accordingly, it was said, the points made as to the required size of the pond were academic. Ms Hamilton's witness statement exhibited a letter from a qualified civil engineer stating that this was incorrect, and that an increase in impermeable hardstanding area would require an increase in the size of the pond. But Ms Hamilton's statement itself said that this was the reason why both the developer's engineers and the council's Drainage Manager had stressed the need to provide for an attenuation pond and performed the calculations they had. Accordingly, if the claimant is right and the point taken in the detailed grounds is an error, it is not an error that either of the expert drainage assessments made.
Ground 3: Failing to assess effects of manure spreading
" Failing to require assessment of the environmental effects of the management of the manure from the broiler units "
It was originally envisaged that manure removed from the sheds would be transported away from site. The proposal eventually approved however was for manure to be spread on nearby agricultural land owned by the applicants. The claimant says that this would amount to disposing of 7000 tons of manure per annum and that no assessment has been made of the effects of doing so, whether in terms of the odour produced or impact on water quality of ammonia or phosphates from the manure. This they say should have been assessed in terms of impact on residential properties, tourism and heritage assets as well as the brook and any other watercourses affected. The principal point relied on was the odour effects which it was said would be substantial over a wide area and would impact particularly on the claimant's tourism business.
Ground 4: non visual impact on the setting of a listed building
"Failing to discharge its duty under s 66(1) of the Planning (Listed Buildings and Conservation Areas Act 1990, in particular by failing to assess the non- visual impacts of the proposed development on the setting of the Grade II listed Flag Station."
S66(1) requires that a local authority considering permission for a development "which affects a listed building or its setting… shall have special regard to the desirability of preserving the building or its setting". The grounds go on to allege that the reports of the planning officer, and the advice of the Conservation Officer on which they were based, address only issues of visual appearance and not impact on the setting from odour and noise arising from the machinery at the broiler units and HGV movements to and from those units.
"Flag Station is used as a dwelling in the ownership of the applicant and there are modern farm buildings forming an agricultural yard to the east of the listed building… given the proximity of the proposal to the grade II listed Flag Station and its platform it is necessary to ensure there is compliance with policy HBA4, Setting of Listed Buildings… It is proposed to keep the poultry units to the southern end of the application field in order to reduce their impact on the setting of the listed buildings… There are already modern farm buildings to the east of the listed structures which affect the setting of the listed buildings. It is not considered that the current proposal would significantly affect the setting of Flag Station, not least due to the level of mature trees and general landscaping between the listed building and the proposed site…
Overall the proposal should have no detrimental impact on the setting of the listed building … given the mitigation measures proposed."
Ground 5: inadequate landscaping conditions
"Failing to secure the necessary landscaping mitigation through conditions that are sufficiently precise and enforceable."
In relation to this, it was submitted that the conclusions reached as to visual impact of the development depended substantially on the provision or maintenance of hedges and trees to reduce the visual impact of the buildings as seen from the claimant's and other properties, some of which would be outside the application site itself although on land owned by the applicant, and yet the conditions imposed were not specific as to what measures would be taken, requiring only plans to be produced and approved by the Council, did not control landscaping outside the site, did not require all the landscaping to be in place prior to the commencement of building and envisaged a soft landscaping scheme that would only have to be maintained for five years.
Ground 6: Claimant's fears
" Failing to have regard to the claimant's fear that the proposed development will ruin, rather than merely affect, the Shetton Barns tourist business. "
The grounds submit that the claimant's fear to this effect was not acknowledged in the officers' reports, and that even if it was considered not to be objectively justified, the existence of that fear was capable of being a material planning consideration.
Ground 7: Grade 1 agricultural land
" Failure to reach a conclusion on or provide reasons for a conclusion on the loss of agricultural land marked as Grade 1 on DEFRA's Agricultural Land Classification Map but which the [developer] asserted was only Grade 3B "
The claimant had contended, relying on the map referred to, that the application site was Grade 1 land, and that its loss for the purposes of the proposed development would be contrary to the authority's published policy E15. The officer update for the November meeting records the fact that this objection had been put forward by the claimant's planning consultant, together with the response of the applicant's agent that the classification maps were general in nature and could not be relied on at the level of a specific field, and that the field in question was the worst on the farm by reason particularly of waterlogging and liability to flood. The issue is not referred to in the "officer comments" section of that update, and there is no record in the minutes of any point being made on this issue by any of those who spoke at the meeting.