High Court rejects judicial review over permission for onshore salmon farm

The High Court has rejected a legal challenge over a decision by North East Lincolnshire Borough Council to grant planning permission for an onshore salmon farm.

In Animal Equality UK, R (On the Application Of) v North East Lincolnshire Borough Council & Anor [2025] EWHC 1331, the claimant, a non-governmental organisation concerned with animal welfare, argued that in resolving to grant planning permission, the council’s planning committee were “materially misled” by the Officer’s Report in relation to animal welfare concerns.

However, Deputy High Court Judge Ridge rejected the challenge, upholding the council’s decision to allow the salmon farm on land off Salvesen Road in Cleethorpes.

The interested party (IP) in the case was a salmon farming operative and the owner of the site. The IP sought full planning permission from the council for the following development:

"Erection of an onshore aquaculture farm with associated water extraction and effluent discharge from and to Grimsby Docks, alongside ancillary processing, energy centre, access, car parking, servicing, external lighting and landscaping and associated infrastructure"

Outlining the background to the case, the judge said: “The planning application was submitted on 20 June 2023 and it was duly advertised and comments were received from various individuals and other organisations.

“By letter dated 23 November 2023 the claimant made representations to the Planning Committee setting out its objections on the basis of intense energy and water consumption and high effluent levels and further relying on the concerns about animal welfare set out in a letter..... dated 5 October 2023, [by] an aquatic animal expert.

“Those concerns related to the pain and suffering felt by animals being kept in highly cramped tank conditions leading to high death rates, disease and cannibalism and the risks of electricity supply interruptions leading to mass fish mortality.”

The Officers Report (OR) began with a description of the proposal and the site, followed by relevant planning policies, before going on to provide details of the representations received.

The objections included "welfare of the fish being farmed and the principle of fish farming".

Under the heading 'Principle of Development' there was the following paragraph:

"Regarding fish welfare and the moral concerns of fish farming that have been raised in representations received whilst these concerns are noted they are not considered to be material land use planning considerations. Indeed, in that way the proposal is akin to other well established on land intensive livestock units such as for chickens, turkeys and pigs."

The proposed application was considered at a planning committee meeting on 29 November 2023 where objections were heard and committee members were referred to the OR, which was supplemented by further oral advice.

Following a vote of 7-4 in favour of the development, the committee resolved to grant planning permission subject to conditions. The council therefore granted planning permission on 1 December 2023.

Proceedings were issued on 11 January 2024 setting out two grounds of challenge. Ground 1 was an allegation that the council’s planning committee members were “materially misled” in relation to the legal non-materiality of animal welfare concerns.

Ground 2 was an allegation that members were “materially misled” regarding the extent to which they were required to rely on other pollution control regimes.

Permission was refused on the papers by Order of HHJ Klein, sitting as a High Court Judge on 22 March 2024. However, following an oral renewal hearing on 5 September 2024, permission was granted on ground 1 by HHJ Belcher, sitting as a High Court Judge.

The claimant had chosen not to seek renewal of the claim on ground 2. At the substantive hearing there were written submissions on behalf of the claimant and the Interested Party about the ability of permitting regimes to consider fish welfare.

The judge noted: “Those submissions relate to the IP's contentions under section 31 of the Senior Courts Act 1981 that the outcome was highly likely to have been the same even if members had been incorrectly advised.”

Outlining the relevant legal principles, Deputy High Court Judge Ridge said: “Whether a particular consideration is material for the purposes of section 70(2) of the Town and Country Planning Act 1990 requires firstly, consideration of whether it is a consideration capable of being material for planning purposes in that it relates to the character of the use of the land. That question is a matter of law for the Court in the event of disagreement. There is none here.

“The second question is whether the consideration should be taken into account in the circumstances of the particular application and that is a matter for the decision maker, subject to review on grounds of Wednesbury reasonableness.”

She continued: “Whether or not a decision-maker chooses to take into account something which is a lawful material planning consideration is a matter of discretion for the decision maker. The only exception is where there are circumstances where a material consideration is so obviously material that a decision maker is required to take it into account. All parties agree that animal welfare concerns are capable of constituting a material consideration as a matter of law. It is further agreed that a planning committee is not required to have regard to, or to disregard, animal welfare concerns but it can legitimately chose to disregard such concerns.”

In the present case, the claimant did not seek to persuade the court that the committee were required to take animal welfare concerns into account, rather that they should properly have been advised that it was open for them to do so if they wished to.

The judge noted: “The claimant alleges that the committee in this case was advised that it could not take animal welfare concerns into account. The Defendant and IP dispute that, and instead contend that the advice was that, whilst the committee could take those concerns into account, officers recommended that animal welfare concerns should not be taken into account in this case.”

Analysing the case, she said: “The OR is not a legal report. It is prepared by a professional planning officer and it is intended to set out all relevant matters for consideration, together with a summary of objections. It is to be read benevolently and as a whole and is not to be subject to overly forensic examination. Part and parcel of the report is the requirement for officers to provide their own planning evaluations on a series of matters before coming to a conclusion and providing advice and a final recommendation to members.

“Planning members are trained and are aware that they are entitled to come to their own views on certain matters, having chosen to evaluate matters differently and subject to Wednesbury reasonableness.”

She continued: “The OR is structured such that the main issues are first identified. The Officer was aware that objections on the basis of animal welfare concerns had been raised, they are included in the summary of responses. In the section entitled "Principle of Development", relevant development plan policies are set out and the Officer provides a view as to whether the proposal is in conformity with those policies. He concludes that 'It is therefore considered that the proposed development accords with Policies 5 and 7 of the NELLP'. That is his evaluative judgment.

“He then moves on to consider the implications of permitted development rights and then states that 'the principle of the proposed development is considered to be acceptable'. The next paragraph is the contentious one dealing with fish welfare, as follows:

'Regarding fish welfare and the moral concerns of fish farming that have been raised in representations received whilst these concerns are noted they are not considered to be material land use planning considerations. Indeed, in that way the proposal is akin to other well established on land intensive livestock units such as for chickens, turkeys and pigs.'

“The Officer is dealing with fish welfare and 'moral concerns', acknowledging that they have been raised and stating that they are not considered to be material land use planning considerations. In the context of this sentence I do not accept that the words 'they are not considered to be' are merely a literary flourish or a filler. They are flagging that the view of the Officer is that concerns in relation to fish welfare are not material. The words are not categoric, they give rise to the possibility that the concerns could be material but they are not considered to be so. They are an expression of a professional opinion as to materiality.”

Turning to comments made during the planning committee meeting, the judge noted that while counsel for the claimant alleged that the oral advice of officers in the meeting “compounded the unlawful advice in the report”, counsel on behalf of the local authority contended that the advice was “consistent with the written advice”.

Analysing the arguments, she said: “After the chairperson introduced the item, the Planning Officer gave a description of the site, then went on to deal with matters raised in objection and providing his comments and advice within the commentary. He then turns to animal welfare concerns and says:

"In terms of other matters, the nature of the proposal means it does need extensive amounts of permit for use.

This is where, in terms of what we can or can't consider, in regards to the moral side of what is being proposed, that is not considered a material consideration. That goes along with the welfare of the fish involved as well. But this is a permitted process, it does require as we see on page 20 in the report a number of permits to ensure it is run appropriately."

She continued: “It is notable that the Officer first referenced the extensive permitting requirements of the operation before going on to reference 'what we can or can't consider'. The Officer says that the moral side of what is being proposed is not considered to be a material consideration and that applies equally to the welfare of the fish.

“The words 'can or can't' consider are said by Mr Shattock [for the claimant] to be imperative, indicating that the committee are not entitled to look at such concerns on any view. However, I am conscious that the words used in a committee meeting should not be forensically dissected. The oral advice was generally in accordance with the OR. The Officer had already come to the view that animal welfare concerns should not be taken into account and whilst he uses the word can't, that is merely a confirmation of the view he has already set out in the OR.”

She concluded: “I do not see the oral advice as representing a departure from the advice within the OR.”

Counsel for the claimant lastly pointed the judge to statements in the meeting itself by individuals, but the judge noted that she treats such comments “with a significant degree of caution”.

She said: “I agree with the approach of Mr Justice Dove in R(Village Concerns) v Wealden District Council [2022] EWHC 2039 (Admin) when he advocated that it was necessary to approach transcripts of committee discussions with realism as to their nature in that they are different from the carefully formulated contents of an officer's report. Comments from individual members tasked with making a collective decision are less enlightening than the actual tenor and evolution of the discussions as the debate progresses.”

Deputy High Court Judge Ridge rejected the legal challenge, and upheld the council’s decision to grant planning permission for the onshore salmon farm.

Lottie Winson