Court of Appeal quashes grant of permission for poultry-rearing facility over incomplete EIA

The Court of Appeal has allowed an appeal in a dispute over whether Shropshire Council properly gave planning permission for an intensive poultry-rearing facility.

In Squire, R (On the Application Of) v Shropshire Council [2019] EWCA Civ 888 Lindblom LJ, with whom Lady Justice King and Master of the Rolls Sir Terence Etherton agreed, held that Shropshire had not properly assessed environmental information related to manure disposal and resulting odour and dust.

Local resident Nicola Squire had challenged Shropshire’s grant of permission to Matthew Bower, but the council won in the High Court last July.

The judge said the case concerned whether Shropshire failed to consider the likely effects of odour and dust arising from manure disposal and the relevance to that of the environmental permit and the adequacy of the environmental impact assessment (EIA).

Ms Squire’s home is about 300 yards from the proposed site of four buildings where in the course of a year about 1.6m broiler chickens would be reared, and some 2,322 tonnes of manure produced. The manure would be disposed of on farmland close to residential areas near Bridgnorth – some of it not owned by Mr Bower.

Ms Squire said the grant of planning permission was unlawful because the council had failed to consider the likely effects of the development on the environment in accordance with requirements for EIAs, and that it had failed to take into account those effects, and the position of the Environment Agency, as material considerations.

Lord Justice Lindblom said the appeal turned on whether the High Court had been wrong to conclude that the environmental permit would control the management of manure outside the site to which the permit related; and that the EIA undertaken for the proposed development was adequate and lawful.

The Court of Appeal judge concluded that neither Shropshire’s public protection or planning officers expressly recognised the need for a meaningful assessment in the EIA of the likely effects of odour from the disposal of large quantities of poultry manure on farmland outside the application site, including some 1,150 tonnes on unidentified third party land.

He said: “Neither acknowledged that such an assessment was required before planning permission could properly be granted for the proposed development.

“Neither went beyond generalities. And neither made good the lack of assessment in the environmental statement. Ultimately there was nothing within the environmental information for this project that qualified as a proper assessment, in accordance with the EIA regulations, of the effects of odour from the storage and spreading of manure.”

The judge added: "In my view the EIA for the proposed development was incomplete and unlawful, and this unlawfulness vitiated the council's decision to grant planning permission."

Lord Justice Lindblom rejected submissions from counsel to Shropshire and Mr Bower that in light of a planning obligation entered into by Mr Bower in relation to a manure management plan four months after the proceedings were issued, and relying on section 31(2A) of the Senior Courts Act 1981, the court should conclude that relief should be refused, because it was "highly likely" that the council's decision "would not have been substantially different" had the obligation been before the committee. 

The Court of Appeal said he could not accept that submission. "The planning obligation itself illustrates some of the uncertainties persisting at the time of the council's decision. It does not, however, overcome the lack of a proper assessment of the environmental effects of odour and dust in the EIA. There is, in my view, no justification here for withholding an order to quash the planning permission, which will enable the council, when redetermining the application, to ensure that the requirements of the EIA Directive and the EIA regulations are properly complied with."

Mark Smulian