Nina Pindham, barrister, No5 Chambers Nina Pindham, barrister, No5 Chambers

Planners must consider environmental impacts

The rote advice given to planners is to assume that the environmental permitting regime will operate effectively and so the operation of environmental permits should not be a consideration in planning decisions. However, two cases this year have indicated that this advice has contributed to decision-makers unlawfully failing to consider a development’s full environmental impacts.

The first of these cases, the Court of Appeal’s decision in R (Squire) v Shropshire Council ([2019] 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 ([2019] 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

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  • Planning Act 2008
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    Planning Act 2008

    In force/
    Current
    Legislation
    England, Scotland, Wales
    Published
    06 Apr 2016

    Commentary

    27/03/2015 Amending Order (SI 2015/949) published.
    10/03/2016 Amending Order (SI 2016/306) published., 16/01/2017 Amending Regulations (SI 2017/16) published, for England and Wales only.
    02/11/2017 Amending Regulations (SI 2017/1012) published.
    10/11/2017 Commencement Order (No. 3) (
    SI 2017/1078) published, for England only., 28/11/2018 Amending Regulations (SI 2018/1232) published.

    Compliance Dates

    26/11/2008 Received Royal Assent, 26/11/2008 Provisions of Parts 1 to 9 (except Section 194(2) to (5) and paragraph 7 of Schedule 7) come into force (see Section 241), 26/11/2008 Part 11, except Sections 206, 211(7), 224 and 225 come into force (see Section 241), 26/11/2008 Part 12, except Section 238, comes into force (see Section 241), 26/01/2009 Sections 194(2) to (5), 201, 202, 203 and 225 (together with related entries in Schedule 13), and paragraph 7 of Schedule 7, come into force (see Section 241)
    01/03/2010 Certain Sections including Sections 15 to 20 and Sections 22 to 26 brought into force by The Planning Act 2008 (Commencement No.4 and Saving) Order 2010 (SI 2010/101)
    06/04/2010 Certain provisions brought into force by the Planning Act 2008 (Commencement No. 5 and Saving) Order 2010 (SI 2010/566)
    06/04/2011 Sections 14(1)(o) and 29 brought into force by the Planning Act 2008 (Commencement No. 6) Order 2011 (SI 2011/705)
    01/10/2011 Sections 14(1)(p), 30 and 153 and Schedule 6 brought into force by the Planning Act 2008 (Commencement No. 7) Order 2011 (SI 2011/2054)
    06/04/2012 Sections 192 and Schedule 8 (tree preservation orders), Section 193 (existing tree preservation orders: transitional provisions), and Section 238 and Schedule 13 (repeals relating to trees specified in the Schedule to SI 2012/601) come into force for, 28/11/2014 Section 198 (appeals relating to old mining permissions) comes into force, in relation to Wales, insofar as it is not already in force (see the Planning Act 2008 (Commencement No. 3) (Wales) Order (
    01/01/2018 Sections 14(1)(m), 14(1)(n), 27 and 28 in relation to dams, reservoirs and the transfer of water resources, enter into force for England only (see SI 2017/1078)

    Characteristics

    Subject

    Energy/climate change General policy Land and development Sustainable development Transport Waste

    Source

    OPSI (Office of Public Sector Information)

    Affected Sectors

    Cross-sector Oil Water Electricity Gas Waste and Cleaning Construction Transport Rail Transport

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