Court of Appeal judge refuses campaign group permission to appeal dismissal of judicial review challenge over poultry farm expansion

A Court of Appeal judge has refused campaign group Fish Legal permission to appeal the High Court's dismissal of its judicial review application over a council’s grant of planning permission for the expansion of a poultry farm.

Lord Justice Lewison said Powys County Council's position that the potential harm of the expansion to waterways was an immaterial consideration was "arguably" an error of law.

But the Court of Appeal judge found that the local authority had carried out an appropriate assessment and that, "taken as a whole", the grounds of challenge were not arguable.

Fish Legal has been pursuing a judicial review since April of this year in an attempt to stop the farm – based in the River Wye Special Area of Conservation (SAC) – from doubling in size.

The group claimed the council failed to assess the effects of the additional poultry manure that would be spread as phosphate-rich digestate on land in the catchment area.

In its judicial review application, the group argued that, under the Conservation of Habitats and Species Regulations 2017, the development should only go ahead after the council has established that it will not adversely affect the integrity of the SAC.

Additionally, the group contended that under the Town and Country Planning (Environmental Impact Assessment) (Wales) Regulations 2017, the council needed to look at both the direct and indirect significant effects of the development.

Concerning the "error of law" point, the judge said: "The question what is an 'indirect effect' of a project is far from clear; and the UKSC has recently granted permission to appeal in R (Finch) v Surrey CC.

"It is unfortunate that the [Local Planning Authority] did not decide as a matter of planning judgment that the potential for harm to waterways was too remote to be an indirect effect, but rather said that it was an immaterial consideration. Arguably that was an error of law. The question then is whether that infected the actual decision."

Despite this, the judge dismissed the permission application, concluding that the council "did in fact carry out an appropriate assessment" which included manure management and which was submitted to Natural Resources Wales for comment.

He noted that Natural Resources Wales (NRW) asked for further information about manure management, which was subsequently provided. In light of that further information, NRW said that it had no further comment and did not object to the development. "The [council] was entitled to rely on NRW's view", the judge found.

He added: "The [Local Planning Authority] were also entitled to rely on the existence of a regulatory regime, of which NRW was itself the regulator: R (An Taisce) v SS [2015] PTSR 189; R (Morge) v Hampshire CC [2011] 1 WLR 268."

Cllr Jake Berriman, Cabinet Member for a Connected Powys, said the local authority welcomed the Court of Appeal judge’s ruling.

He added: "The planning application was processed and approved correctly and in line with the council's planning policies."

Justin Neal, Solicitor at Fish Legal, said: "This is obviously disappointing – not least for the river Wye. The difficulty we have is that although there is more than one way to describe the same assessment provided by the council, we can't see where the spreading of digestate was considered. And NRW do not – as far as we are aware – regulate the spreading of digestate – nor is it fully regulated as a permitted activity. So, there are massive regulatory gaps where pollution is likely to occur."

He continued: "For the time being, the Wye has become little more than a receptacle for pollution with no one really stepping in to turn things around. We suggest that NRW now confirms publicly that it does not regulate the spreading of digestate and to say what it intends to do to stop digestate fertiliser from causing pollution."

Adam Carey