The Court of Appeal has quashed a planning permission for an intensive chicken farming facility in Shropshire (Squire v Shropshire Council and Matthew Bower  EWCA Civ 888, handed down on 24/5/19).
In so doing, the court laid down important principles concerning the environmental impact of intensive farming. It also established the correct approach to interpreting the environmental permits under which such intensive farming facilities operate.
The facility in question is typical of intensive chicken farming – it would be operated on a 48-day cycle, in which 210,000 chicks would be brought into four sheds, reared for 38 days and then removed, leaving 10 days for the buildings to be cleaned and prepared for the next flock. In the course of a year, about 1,575,000 "broiler chickens" would be reared, producing 2,322 tonnes of manure.
As is often the case, the manure was to be disposed of by storage and spreading, partly on the developer's own nearby fields and partly on the fields of an unidentified neighbouring farmer. The Appellant's home is about 300m from one of the fields identified for the storage and spreading of manure. She, and other local residents, objected to the proposed development and highlighted the lack of environmental impact assessment ("EIA") of the odour and dust impacts of the disposal of the manure. She also contended that the environmental permit did not control any pollution which might be caused by the dust and odour impacts of storing and spreading the manure.
The Court of Appeal first addressed the environmental permit. It held that the permit encompassed the disposal of the waste manure outside the permit installation boundary (which was tightly drawn around the chicken sheds).
However, that simply required the permit holder to produce records and a written management system to identify and minimse the risks of pollution from the disposal. It did not create any obligation on the Environment Agency ("EA") to control any dust or odour pollution issues arising from activities outside of the permit installation boundary, whether on the developer's land or on any third party land. The EA would control nitrogen impacts of the manure on groundwater and surface water, but only in Nitrate Vulnerable Zones. This control was irrelevant to other pollution impacts, such as from odour and dust.
The Court of Appeal went on to address EIA. It accepted the position, agreed by the parties in the High Court, that the odour and dust impact of the storage and spreading of the manure were indirect effects of the proposed development, which it was necessary to assess in the EIA.
The Court held that the EIA which had been carried out was deficient – it relied on a future proposed Manure Management Plan, which would only relate to the storage and spreading of manure on the developer's own land. It did not appreciate that the Environmental Permit would not control the odour and dust effects of the storage and spreading of the manure. And it wrongly relied on comments made by the Public Protection Officer, which were "broad and generalized" and which relied on the officer's general experience of agricultural practice rather than on actual assessment.
Beware the slurry trap
These matters are relevant to the environmental impact of many types of intensive farming, as they apply equally to slurry spreading as a result of dairy development; spreading of pig manure as a result of pig farming or spreading of manure produced by poultry. In light of the Court of Appeal's decision, it is important that the odour and dust impacts of the storage and spreading of manure or slurry be subjected to proper assessment.
Developers and councils can no longer rely on control via the environmental permit, or on the fact that such spreading is "common practice", or on a generalised commitment to comply with the provisions of the Code of Good Agricultural Practice and produce a manure management plan. Instead, the fields where the storage and spreading will take place have to be identified; the potential dust and odour impacts modelled and an assessment made of the likely significant effects on the environment and on nearby residents.
Estelle Dehon represented the Appellant, Nicola Squire. She was instructed by Matthew McFeeley of Richard Buxton Environmental and Public Law.