Emissions “coming home to roost”. Planning appeal for intensive chicken farm refused for making a bad environmental situation worse

19 Jun 2023

Planning and Environment, Cornerstone Climate

An Inspector has dismissed an appeal against the refusal of planning permission for a large scale intensive chicken farm near Bridgenorth in Shropshire. The matter concerned the release of emissions from industrial farming, with important environmental and climate impacts. The case is unusual both for the issues on which it turned and the fact that the LPA’s decision (refusing permission) was defended largely by third-party intervenors rather than the LPA itself.

The application had a somewhat storied history. The LPA originally granted permission for a substantially similar development on the same site in 2018. A group of local residents sought judicial review of the decision, arguing that the Environmental Impact Assessment failed to take into account the full impacts of the odour generated by the proposed plant. The High Court dismissed the claim but the Court of Appeal reversed the decision and overturned the planning permission. The developer made a new application and the LPA’s officers recommended, once again, that permission be granted. On that occasion, however, the members of the Planning Committee disagreed and permission was refused, contrary to officer advice. The developer appealed to the Secretary of State.

The developer had sought to overcome the Court of Appeal’s objections by proposing to install air-scrubbing technology and submitting, with the application, an odour assessment saying that odour levels at the nearest residence would fall within acceptable levels. The LPA’s officers accepted this assessment but, it emerged during the appeal hearing, did not fully examine the basis for its conclusions. These conclusions were challenged by an odour consultant and counsel instructed by members of the local community. They argued that the odour assessment had failed to take into account relevant considerations and, moreover, the evidence basis was questionable as it was based on data collected and held privately by the developer’s consultant, rather than publicly available (and reviewed) evidence. While the appeal was only listed for a hearing, rather than an inquiry, the community’s representatives were forced to take a more adversarial approach in order to properly challenge the claims put forward by the developer. The Inspector agreed with the community, concluding:

“The assessment fails to consider peak odour concentrations at the end of the growing cycle and during the clearing out of the poultry buildings. Moreover, limited explanation is provided for the input data selected and the methodology adopted. These factors combined with the absence of empirical evidence to support the assessment and conclusions leads me to determine that the odour assessment does not adequately model the impact resulting from the proposed development. Therefore, in my judgement, the conclusions reached in the assessment cannot be relied upon.”

The community also argued that the odour report, while taking account of current residential development in the area, failed to consider the emerging local plan, which made provison for substantial residential development much closer to the appeal site (and therefore much more likely to be impacted by the odour. They argued that paragraph 187 of the NPPF would “lock in” the negative impacts of the proposed chicken farm. The Inspector agreed:

“Whilst it is not for me, as part of a Section 78 appeal, to come to a view on the local plan the approach towards the proposed development in the context of the TGV does not sit comfortably with me. I am mindful of paragraph 187 of the Framework, which states that existing businesses and facilities should not have unreasonable restrictions placed on them as a result of development permitted after they were established.

“In this particular regard, if I was minded to allow the appeal, the poultry units would essentially gain “protection” under paragraph 187 of the Framework. It is not unreasonable to think that the appellant would be reluctant to give up his poultry operation given the time and capital that would be expended in establishing this element of his farm business. This would undermine the TGV which is clearly of strategic importance to the Council and the local community.

“Therefore, there is a tension between the development proposed and the emerging local plan. The effect of allowing the appeal would, in my view, be two-fold. Firstly, it would undermine the local plan, TGV and the ambitions of the local community. Secondly, its operations would likely lead to the living conditions of future occupiers of the TGV being compromised. As such, I find that the proposed development would unduly affect future local development and its occupiers.”

Finally, it was agreed between the parties that the ammonia levels in the nearby Site of Special Scientific Interest would, regardless of the proposed development, exceed the benchmark level. The developer argued that this justified the (substantial) contribution that the proposed development would make to ammonia levels. The Inspector disagreed:

“Despite the above it is evident that ammonia and nitrogen levels are already in excess of critical levels and loads at the SSSI thereby having an adverse impact upon it through eutrophication. In my view, the resultant pollutant levels would unacceptably result in the further degradation of the SSSI. Whilst benchmark ammonia levels have already been exceeded this is not justification to make an undesirable situation even worse.

“As such, I conclude that the proposed development would adversely affect the Thatchers Wood and Westwood Covert SSSI by reason of ammonia concentration. It would be contrary to CS Policies CS6 and CS17 and SAMDev Policy MD12 which, amongst other things, require developments to protect restore, conserve and enhance the natural environment, safeguarding natural resources and not to have a significant adverse impact on Shropshire’s environmental assets.”

The case provides important lessons for local authorities, communities, and developers:

  1. Assessments should not simply be accepted at face value, best practice is to submit them to at least a basic degree of scrutiny to ensure that their analysis holds together.
  2. The “lock in” potential of paragraph 187 of the NPPF is a relevant consideration when addressing proposed development near land allocated in an emerging local plan;
  3. The fact that an environmental situation is already bad does not justify a proposed development making it worse; and
  4. Where local authorities are in a difficult position in relation to an appeal (such as where permission is refused contrary to officer advice), local communities may effectively and usefully step into an authority’s shoes to defend the appeal (although it is suggested that they instruct solicitors and counsel to ensure full effect).

Sam Fowles acted for the local community. Estelle Dehon KC and John Fitzsimons acted in the earlier judicial review.

The full decision can be found here.