The first of these cases, the Court of Appeal’s decision in R (Squire) v Shropshire Council ( EWCA Civ 888), overturned the High Court’s ruling that the defendant had not acted unlawfully in granting consent for an intensive poultry-rearing facility.
Over the course of a year, the proposed development would produce some 2,322 tonnes of chicken manure. The plan was to dispose of the manure by spreading it on farmland. Some of that land was owned by the developer and therefore subject to the control of the facility’s environmental permit, which included manure management. However, the part of the land not owned by the developer fell outside the control of this permit.
The Court of Appeal held that the council had erred in failing to consider the likely effects of odour and dust arising from the disposal of manure on land not owned by the developer.
Of more importance to developers, the court held that the council should have taken those impacts into account, despite the fact they would be controlled by environmental regulations applying to manure spreading and that spreading manure as a fertiliser was a common agricultural practice that would occur irrespective of the development’s fate.
The more recent case of R (Preston) v Cumbria County Council and United Utilities Water Ltd ( EWHC 1362 (Admin)) also demonstrated that the full environmental impacts of an environmental permit must still be taken into account.
In this case, the utility was granted planning permission to vary a condition attached to an earlier consent, which extended the duration of a temporary outfall into a river the claimant had an interest in fishing. The new outfall had to be installed after storm Desmond damaged the previous pipe in 2015. Here, the council’s failure to consider the effects of the discharge from the outfall was not salvaged by the discharge being regulated by an environmental permit.
The lesson to be learned from these cases is that the courts will be ready to quash a decision when there are “known environmental unknowns” that are not taken into account by the local planning authority, even when, as in Preston, those environmental effects are already regulated by an environmental permit expressly designed to prevent unacceptable impacts on the environment.
It is no longer appropriate – if it ever was – to rely on the advice that the environmental permitting regime is separate to planning and should not have a bearing on the decision whether to grant planning permission. The complete range of environmental impacts must be taken into account by the decision maker, even when those impacts are regulated by an environmental permit (which rather helpfully will establish what the actual environmental impact will be by virtue of its conditions), and even more so when the impacts are not regulated by any environmental permit at all.
Nina Pindham is a barrister at No5 Chambers