National Farmers’ Union fails in legal challenge over lawfulness of policy in minerals and waste local plan

Herefordshire Council acted lawfully when it used planning policy to try to control agricultural waste, the High Court has found.

Mrs Justice Lieven dismissed all the grounds argued by the National Farmers' Union (NFU) and noted that an admitted procedural error had not caused it substantial prejudice.

The NFU brought the case against Herefordshire and the Secretary of State for Levelling Up, Housing and Communities as a challenge to the lawfulnes of a policy named W3 in the Herefordshire Minerals and Waste Local Plan (MWLOP), which had been deemed sound by the Secretary of State.

It argued on five grounds that there had been an unjustified extension of plan policies to address agricultural materials that fall outside the definition of ‘waste' in the planning acts.

The NFU also said the council had been irrational and/or engaged in an improper extension of policy requirements to the whole agricultural unit within which any development takes place.

Other grounds were an irrational extension of nutrient neutrality requirements beyond that supported by Natural England, causing the NFU substantial prejudice by failure to consult it and failure to provide adequate reasons on principal issues.

Lieven J said Ground 1 “somewhat shifted during the course of the hearing” which meant the issues before her were whether the minerals and waste plan unlawfully extended beyond the definition of ‘waste’ in s.117(1) Planning and Compulsory Purchase Act 2004 and s.336(1) Town and Country Planning Act 1990, by reference to the Waste Framework Directive, and whether the exclusion of non-hazardous agricultural or forestry material from the definition of waste only applied when  such material did not harm the environment or endanger human health or is spread on land?

The judge said: “The first three grounds all raise a general submission by the NFU that the [council] has illegitimately sought to extend planning control through the mechanism of Policy W3 into areas which are beyond the proper remit of a MWLP.

“The NFU makes the overarching point that most agricultural activities fall outside the scope of planning control and there are wide permitted development rights for agricultural development. It argues that the [council] has sought, through policy W3, to control the otherwise lawful agricultural methods including the use of manure, and of the operation of livestock units.”

She said it was accepted by Herefordshire that W3 was “an unusual policy because it does seek to control the disposal of agricultural waste” but the council felt it was “lawful and wholly justified on the facts of the case, and in particular the problem that large scale agriculture, especially industrial poultry units, have created within Herefordshire”.

The policy provides that waste management method statements will be required for proposals for livestock units on agricultural holdings to demonstrate - under various conditions - that both natural and non-natural wastes will be appropriately managed both on and off-site, with anaerobic digestion supported where used to manage natural wastes generated primarily on the agricultural unit where it is located.

All proposals for livestock units and anaerobic digestion and any other waste management proposals within the River Wye or River Clun special areas of conservation would be required to demonstrate at least nutrient neutrality.

Herefordshire said both rivers had the highest level of protection for their conservation features but high levels of nutrients had resulted in algal blooms and eutrophication.

Lieven J said whether or not faecal matter falls outside the scope of waste controls was contingent on there being no environmental harm.

The NFU argued agricultural activities are not generally subject to planning control and are comprehensively regulated by other statutory regimes, It said W3 sought to regulate not merely development on the agricultural unit, but also the agricultural activities carried out, which fell within the environmental regulation regime.

Lieven J said: "In my view it is clear that this ground should fail. I accept [the] broad submission that [Herefordshire] in WMLP is not bound to restrict the scope of the plan to ‘waste’ as defined in s.336 TCPA and theWaste Framework Directive.”

She said the Planning and Compulsory Purchase Act 2004, cited by the NFU, said only "development plan documents must be prepared in accordance with the local development scheme”, which did not limit the definition of waste.

The NFU argued that Herefordshire had a waste plan and therefore the policies in it must all refer to waste as defined in the planning acts.

“I cannot see that as a matter of law this follows,” Lieven J said. “The issue is not in the name of the Plan, but whether [Herefordshire] were lawfully entitled to include policy W3. Therefore I accept that the ground fails at this first initial hurdle.”

Lieven J rejected the rationality challenge, noting it was “wholly reasonable for [Herefordshire] to be concerned about the overall management of waste generated.

“This is, in my view, no more than considering the cumulative impacts of the proposed development.”

The judge also dismissed the NFU’s third ground that Natural England had said nutrient neutrality measures were only justified on the upper reaches of the River Wye catchment, and that Herefordshire acted unlawfully in requiring this for the entire area.

Herefordshire said Natural England had not objected to its policy and had said: "If the council wishes to take this approach then this is the council's decision.”

The council accepted the NFU had not been consulted at the regulation 19 stage of the process, but said that there was no prejudice because materially the same points were made at both earlier and later stages.

Lieven J agreed and said the NFU had not suffered substantial prejudice from this procedural error.

She also dismissed the argument that the planning inspector concerned failed to give legally adequate reasons for decisions on controversial issues.

Mark Smulian