Appellant applies to Supreme Court in challenge of planning approval for farm buildings near River Wye catchment area

An appellant whose case against Herefordshire Council over planning permission for farm buildings bordering the River Wye catchment area has asked the Supreme Court to hear his claim that planning permission was given unlawfully.

The Court of Appeal rejected the case last month, but appellant David Sahota argues that the approach of the lower courts to planning cases has meant that the “precautionary principle” that any scientific doubt about a project’s impact on a protected site should be eliminated before permission is granted has not been applied.

The issue centres around Herefordshire Council’s planning approval of a farmer's application to build a cattle shed and an extension to an existing agricultural building near the River Wye catchment area, which is both a Special Area of Conservation and a Site of Special Scientific Interest.

Herefordshire Council gave permission after its ecology officer advised planning officers that there was no need for a Regulation 63 Habitats Regulation Assessment because the shed would not lead to any possibility of effects to the River Wye.

Regulation 63 provides, among other things, that a competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which is likely to have a  significant effect on a European site or a European offshore marine site must make an appropriate assessment of the implications of the plan or project for that site in view of that site’s conservation objectives.

Sahota, who fears an increased spreading of manure in the area would pollute the Wye and other watercourses, argued that the council failed to carry out an appropriate Regulation 63 assessment of the plan's conservation implications, and that Natural England must be consulted.

He previously argued that the High Court was wrong to accept ‘post hoc’ justification from the ecology officer that was submitted three months after planning permission had been granted and that the planning committee had been misled into believing that there was no need for a Habitats Regulations Assessment.

Handing down judgment in the Court of Appeal in Sahota, R (On the Application Of) v Herefordshire Council [2022] EWCA Civ 1640, Lord Justice Singh said Sahota's real complaint was “not so much that the planning committee was misled by the officers' report…nor even that [ecology officer James Bisset’s] evidence was wrongly admitted by the judge…it is rather that Mr Bissett's advice was wrong”.

Sahota is supported by public interest litigation organisation Good Law Project and has received more than £21,000 in donations gathered on crowd funding platform CrowdJustice.

Good Law Project Legal Manager Emma Dearnaley said, if successful, "this case will set a legal precedent that will protect rivers across the country, by requiring tighter environmental safeguards to be met before new livestock developments are approved".

She added: "Getting the Supreme Court to hear this appeal will be a high bar to clear. But it is really important that we try. Time is running out to protect our rivers and waterways for us and for the generations to come."

Ricardo Gama, a lawyer at Leigh Day who is representing Sahota, said: “Our client is disappointed that the lower courts have accepted that a local planning authority may grant permission for a project that will obviously lead to the deterioration of protected habitats such as the River Wye without carrying out an assessment under the Habitats Regulations.

“There appears to be a mismatch between the precautionary approach which is required by the Habitats Regulations and the hands-off approach that the courts adopt when considering planning judicial reviews. This appeal will test whether that is true and therefore whether the approach of the lower courts is contrary to the Habitats Regulations.”

Herefordshire Council has been approached for comment.

Adam Carey