This development is a pig sty (literally)

01 Jan 2018

Housing, Planning and Environment

There were about 250 pig arcs on the land and they were visible for miles around. Periodically they would be moved around the pig farm unit. Initially the local planning authority, the South Downs National Park Authority, took the view that, as the use of the land was for agriculture, the pig arcs did not require planning permission. Subsequently the farmer applied for retrospective planning permission for five feed silos to serve the pig farm. Permission was granted despite local opposition. The claimants were directly affected by the silos as they were located directly opposite their home and consequently they launched a judicial review of the decision to grant planning permission on the basis that the Authority should have considered whether or not the pig arcs themselves required planning permission.

The Claimants brought the challenge on the basis that it was an Aarhus Convention claim. The Authority disputed this but Gilbart J ruled that the claim was an Aarhus Convention claim and applied the costs cap.

In a curious report to the committee the Authority’s Director of Planning took a somewhat unorthodox view of the law as to what constitutes development. He examined the three criteria of size, permanence and degree of physical attachment as set out by Sullivan J (as he then was) in R (on the application of Hall Hunter Partnership) v First Secretary of State and others [2006] EWHC 3482 (Admin) but then grafted on a fourth “criteria” of location so that, in his view, when the pig arcs were located on the top of the Downs they required planning permission but when they were moved lower down they did not.

The judge, Mr Justice Dove, ruled that the advice to the committee about whether the pig arcs required planning permission was seriously flawed. The inclusion of a fourth “criteria” related to location was “clearly misconceived”. He also ruled that given the stated and obvious inter-relationship between the silos and the remainder of the pig farming activity, it was important to understand whether the development applied for was in truth providing essential support for unauthorised and potentially undesirable development. It was clearly material to the application, and the proper exercise of development control, to consider whether the application before the committee was only required in order to support other development which required planning permission which, potentially, ought not to be forthcoming. The committee were therefore clearly and significantly misled about a material consideration relevant to the application and that inevitably led to the permission being quashed.

So do pig arcs require planning permission? The answer remains – maybe. As Dove J observed, to determine that question will require a properly directed and fully informed assessment by the Authority. He did not have the evidence before him to undertake that exercise.