Dicken & Ors, R (on the application of) v Aylesbury Vale District Council & Anor

This is a renewed application for permission to apply for judicial review following refusal at an oral hearing before HHJ Hamilton QC sitting as a High Court judge in the Administrative Court on 5 March 2007. The judge reserved her reasons which were given in a judgment delivered on 22 March. Dyson LJ refused permission to appeal to this court on consideration of the papers on 2 May 2007.

The judicial review challenge was prospectively directed against a planning permission granted on 25 or 26 May 2006 to the interested party, Kinsale Agriculture, by the Aylesbury District Council for the erection of three buildings for egg production, in effect a chicken farm, and the temporary siting of a mobile home at Norduck Farm, Moat Lane, Aston Abbotts, Buckinghamshire. The site covers some 147 hectares. It is in an area of attractive landscape. The current use of the land is for agriculture, including the grazing of horses. The proposal is to house some 6000 chickens. It will incorporate what is called the “oli-free roosting system”, whose effect is to prevent, so it is said, the build up of chicken waste and to keep the environment free of odour, flies and vermin. During the hours of daylight the chicken flocks will graze on grassland.

The applicants live close to the proposed development; a distance of some 200 metres is referred to in the evidence but I understand the exact distance to be a matter of some controversy. The access track to the proposed poultry houses is shared by two of the applicants. We were told this morning that the third, Mr Roberts, lives on the corner of the track.

The respondent local planning authority initially resolved to grant planning permission on 15 September 2005, but there followed objections complaining of the lack of an environmental impact assessment (EIA) within the meaning of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (“the 1999 Regulations”). The 1999 Regulations, as is well known, transpose the EIA Directive 85/337 into national law. The proposed chicken farm is classified as an intensive agricultural installation, though there was some doubt within the local planning authority as to whether that was an appropriate classification. If so, it is covered by Schedule 2 to the 1999 Regulations. In those circumstances the local planning authority had to decide whether the development was:

“likely to have significant effects on the environment by virtue of factors such as its nature, size and location.”

If it was, then the development would be categorised as EIA development, in which case an EIA leading to what is called an environmental statement would be required.

The 1999 Regulations, Schedule 2 paragraph 1, require that any intensive livestock installation with new floor space exceeding 500 square metres should be screened to ascertain the necessity for an EIA. A screening process was undertaken and on 8 February 2006 a screening decision was made to the effect that no EIA was required. The decision followed a screening opinion prepared by members of the relevant council committee. In due course planning permission was granted without an EIA, as I have said on 25 or 26 May 2006.

Before coming to the terms of the screening opinion I should note that the interested party, Kinsale Agriculture, operates other similar organic poultry farms in two other counties and yet another in New Road, Dinton, Aylesbury. The farm at New Road is much smaller than the proposed operation but there was also incorporated there the oli-free system. The committee members who were to frame the screening opinion visited New Road, and as I understand it observed the system in operation. The system had undergone a three-year field trial at New Road and the interested party says that it has been in use since about 1989 in Sweden, Finland, Norway, Germany, Switzerland, Luxembourg and the Netherlands. But that evidence was not, as Mr Clayton has been at pains to emphasise before us this morning, before the local planning authority at the time of the relevant decisions.

The screening opinion contains these passages. Paragraph 1e:

“Pollution and nuisance - the operation, if poorly managed, has the potential to cause smell and ground water contamination nuisance locally. The application proposes a system of operation and management which minimises both these aspects. A similar scheme, albeit smaller, is in operation at Dinton and no complaints have been received by the Council. It is not considered that the additional scale of development proposed is likely to increase the potential for this type of impact. Given the scale of the proposal and the operating method proposed, no substantive impact has been identified.”

Paragraph 3:

“Characteristics of Potential Impact

Extent of impact - it is considered that the proposal, if not operated as proposed in the application, would have the potential to cause intermittent local smell impacts beyond the site boundary. However, there is no evidence to suggest that the operating system proposed would cause any such substantive impacts.”

Then the number paragraph 3 is repeated, but the heading is “Conclusion and Recommendation”:

“The site is not in an environmentally sensitive location as defined by the regulations, nor is the location environmentally sensitive within the ordinary meaning of these words; the proposal includes full details of an operating system to control and manage pollution nuisance from smell and ground water contamination. Traffic levels resulting from the proposal are very low and the visual impacts of the buildings would be limited and would be mitigated against. The relevant issues have been addressed in the submitted application.

“It is considered that no environmental impact assessment should be sought.”

The prospective challenge which Mr Clayton QC seeks leave to launch falls under three heads:

I turn to the first of these arguments: the screening opinion and the need for an EIA. The requirement for an EIA has most recently been considered by this court in Catt [2007] EWCA Civ 298. The leading judgment was given by Pill LJ who also gave the first judgment in Gillespie [2003] 2 P&CR 236. At paragraph 26 in Catt Pill LJ cited the judgment of the European Court of Justice v World Wildlife Fund [2001] Common Market Law Reports 149 (paragraph 45) as follows:

“An EIA is required ‘unless the specific project excluded could, on the basis of a comprehensive assessment, be regarded as not being likely to have such effects’ [significant effects on the environment].”

Then at paragraph 29 Pill LJ cited a passage from my judgment in Gillespie, which I shall quote partly because it has been the subject of some discussion by Mr Clayton this morning and partly because it sets part of the context of Pill LJ’s later observations in Catt. Here is the passage:

“Prospective remedial measures may have been put before him (the Secretary of State) whose nature, availability and effectiveness are already plainly established and plainly uncontroversial; though I should have thought there is little likelihood of such a state of affairs in relation to a development of any complexity. But if prospective remedial measures are not plainly established and not plainly uncontroversial, then as it seems to me the case calls for an EIA.”

Pill LJ’s conclusions in the case of Catt are set out at paragraphs 33 to 37 inclusive:

“33.

This is a very different development from that proposed in Gillespie. Developments come in all forms and the approach to the screening opinion must have regard to the development proposed. There will be cases, such as Gillespie, where the uncertainties present, whether inherent or sought to be resolved by conditions, are such that their favourable implementation cannot be assumed when the screening opinion is formed.

“34.

On the other hand, there will be cases where the likely effectiveness of conditions or proposed remedial or ameliorative measures can be predicted with confidence. There may also be cases where the nature, size and location of the development are such that the likely effectiveness of such measures is not crucial to forming the opinion. It is not sufficient for a party to point to an uncertainty arising from the implementation of the development, or the need for a planning condition, and conclude that an EIA is necessarily required. An assessment, which almost inevitably involves a degree of prediction, is required as to the effect of the particular proposal on the environment, and a planning judgment made. (See also the judgment of Ouseley J in Younger Homes (Northern) Limited v First Secretary of State [2003] EWHC 3058 [2004] JPL 950 at paragraphs 59 to 62 citing Dyson LJ in R (Jones) v Mansfield District Council [2003] EWCA Civ 1408.)

“35.

I repeat my statements in Gillespie, at paragraph 36, that the decision maker is not ‘obliged to shut his eyes to the remedial measures submitted as a part of the planning proposal’, and that ‘in making his decision, the Secretary of State [the planning authority] is not required to put into separate compartments the development proposal and the proposed remedial measures and consider only the first when making his screening decision’. Laws LJ was considering the facts in Gillespie and I do not consider he was asserting a general principle that, only when remedial measures are ‘uncontroversial’, can they be taken into account when giving a screening opinion.

“36.

Having referred to Gillespie, Dyson LJ, at paragraph 39 in Jones, stated:

‘The uncertainties may or may not make it impossible reasonably to conclude that there is no likelihood of significant environmental effect. It is possible in principle to have sufficient information to enable a decision reasonably to be made as to the likelihood of significant environmental effects even if certain details are not known and further surveys are to be undertaken. Everything depends on the circumstances of the individual case.’

“37.

When forming a screening opinion, the Council were not required to ignore either the conditions proposed to limit the scope of the development or the conditions providing for ameliorative or remedial measures. The consequences of providing the additional seating, and other changes, could not be predicted with certainty but, as Collins J noted, the Council had extensive knowledge and experience, supported by surveys, of the impact of existing football league and cup matches upon the environment. On the basis of that, and the studies into future impact, they were entitled to assess the likely impact of the additional capacity proposed in the context of the continuing ameliorative measures also proposed and to form the screening opinion they did.”

It seems to me worth noticing, as we have been reminded this morning, that the facts in Gillespie were very stark indeed. The development was certainly going to have environmental effects. Their extent was unknown; what would be required by way of remedial measures was also unknown. The Secretary of State sought to set in train an investigative and curative process, but did so by way of planning condition and not an EIA. It is, with respect, perhaps of little surprise that the decision was struck down.

As it seems to me, if a firm judgment can be made on the facts at the screening stage to the effect that there is no likelihood of significant environmental effect, so that in truth there is nothing of substance to argue about, then -- and strictly in such a case only - the local planning authority is entitled to arrive at that judgment, and accordingly conclude that no EIA is required. I should say that I do not consider that this is inconsistent with what was said by Lord Hoffmann in Berkeley [2001] 2 AC 603 see in particular 615G:

“The directly enforceable right of the citizen which is accorded by the Directive is not merely a right to a fully informed decision on the substantive issue. It must have been adopted on an appropriate basis and that requires the inclusive and democratic procedure prescribed by the Directive in which the public, however misguided or wrongheaded its views may be, is given an opportunity to express its opinion on the environmental issues. In a later case Zuid-Holland [1996] ECR 1-5403, 5427 para 70) Advocate General Elmer made this point again:

‘Where a member state’s implementation of the Directive is such that projects which are likely to have significant effects on the environment are not made the subject of an environmental impact assessment, the citizen is prevented from exercising his right to be heard’.”

As with Gillespie, the facts in Berkeley are important. It was concerned with a major development of the Fulham Football Club which would undoubtedly have environmental effects, and the case raised a question whether in effect the LPA was entitled to set aside the requirement for an EIA on no better ground than that in their view a collection of measures might be imposed by way of condition which would have the required ameliorative effects. The case was not without some complexity and there was, if I may respectfully say so, every place in it for the requirement of the democratic process described by Lord Hoffman.

In the present case the applicants say that the oli-free roosting system was unique, unavailable for public scrutiny and unspecified in any document at the time of the screening; and the farm at New Road, Dinton where it was already operating was only one-eighth the size of the proposed development. There are also some subsidiary points under this head of challenge which were summarised by the judge in paragraphs 15 to 17 of her judgment. She said this at paragraphs 22 and 23:

“I conclude from that case [the reference is to Catt] and Bellingham v Gillespie that the planning authority are entitled to take remedial measures into account in determining whether the proposal is likely to have significant effects. If they are satisfied that the remedial measures mitigate any potential adverse effects upon the environment, such that there are no significant effects [that is the judge’s emphasis] their decision not to require an EIA cannot be challenged unless that decision is Wendsbury irrational.”

“The ‘oli-free’ management system had been in operation at Dinton for a number of years, and no complaints had been received by the Council. The officers had been to observe it working and were fully entitled to take this particular management scheme into account and conclude on the question of pollution and nuisance that ‘given the scale of the proposal and the operating method proposed, no substantive impact has been identified’. Similarly under the heading Characteristics of Potential Impact they concluded ‘it is considered that the proposal, if not operated as proposed in the application, would have the potential to cause intermittent local smell impacts beyond the site boundary. However, there is no evidence to suggest that the operating system proposed would cause any such substantive impacts. Details of the operation and management arrangements for the proposal accompany the application.’”

That is of course taken from the screening of opinion which I have already read.

The truth is that the oli-free roosting system is, as my Lord, Lord Justice Richards pointed out in the course of argument, this morning part and parcel of the proposed development itself. It is not in reality a separate or free-standing remedial system. Mr Clayton QC accepted as much. It is, as is demonstrated by the report of the Head of Planning prepared before the 15 September 2005 resolution, the very system in which the birds will be housed [see paragraph 35 of that report]. The Head of Planning had before him moreover a detailed report, the Hedwin Owen report, which describes the oli-free system. I accept, as Mr Clayton submitted, that a screening opinion is by its nature a more perfunctory affair than an EIA would be. Nevertheless, on the facts, in my judgment the local planning authority were entitled to conclude that no EIA was required and the judge was right to reject this first ground.

It is to be borne in mind that the test for the judicial review court is the irrationality test. Provided the local planning authority asked themselves the right question and arrived at an answer within the bounds of reason and the four corners of the evidence before them, then it seems to me their decision cannot be categorised as unlawful. Mr Clayton has been at pains to emphasise that the context of the issue here is one that engages the law of the European Union; that is of course right. But there are boundaries to the requirement for an EIA, set as surely by the Directive as by the Regulations. Much has been made of the suggested impact of EU law, but in my opinion I think there is a real risk of over-complicating what in essence is a relatively straightforward matter. If on the question whether the proposed development is likely to have significant environmental effects there is anything of substance to argue, then the process of the Directive and the Regulations requires democratic public participation in that argument. This is, of course, a very important legal requirement as Lord Hoffman’s opinion in Berkeley demonstrates. But if in truth there is nothing of substance to dispute, having regard, it may be, to plainly effective remedial measures, whether or not part and parcel of the development itself, then as I see it there is no requirement for an EIA. This case, as the LPA were entitled to find, is in the latter category. In short, they were entitled to conclude that there were no issues that required determination through the EIA process.

The second point taken on the papers, though not further developed orally by Mr Clayton this morning, is that certain relevant matters were unlawfully disregarded, and the points are put fairly crisply, if I may so, in Mr Clayton’s written skeleton argument at paragraph 16, and I will deal with it if I may shortly. There are four points:

“a.

No weight should be attached [that was the council’s view] to public health measures (bio-security, including avian flu), or by implication to the risks associated with these measures, or the public’s perception of them;

“b.

No weight should be attached to the current lack of certainty as to the contents of the ‘Oli-Free System’ or the ‘OMS’;

“c.

That the Council should take account of the fall-back position that they considered that there were no relevant planning controls over mobile chicken sheds however large they may be; and

“d.

That the Council should take account of the economic benefits of the new operation, but should not take account of the adverse effects on the existing livery stables (of Mr Roberts).”

As to the fallback position ((c) in that list), that was taken into account in the screening opinion (see paragraph 1b). An obligation in an agreement entered into under section 106 of the Town and Country Planning Act 1990 prevents operation of this development without the oli-free system (that is in (b) above) there has been some disputation as to whether there were really any enforcement measures or proper controls in the documentation, but that was a matter for the council’s assessment. As for (a) above, public health and avian flu issues, the learned judge said this (paragraph 27):

“Avian flu was properly considered. It is accepted that health effects and public concerns may be material to an application. Installations with known effects, such as waste incinerators will need to take those matters into account, but this proposal was for a chicken farm. The alleged effects concern the possibility of diseases affecting chicken, which are health matters within the remit of health authorities. The potential for disease does not inevitably spring from the scheme and so the planning authority are entitled to hold that they can be held not to be material in this particular case. The officers came to the view that the risk of disease was not material, but explained the associated risks to the members when the application was first considered.”

Paragraph 28 of the judge’s judgment:

“In paragraph 5.7 of their response to the judicial review protocol the defendant’s officers said ‘Whilst it is recognised that the issue is a developing one at a national and international level, any advice or instruction on the movement, housing or control of poultry is a matter for Central Government and its agencies and not something on which Local Planning Authorities should take unilateral action in the absence of specific Central Government advice’.”

The judge was perfectly correct in holding that the issue relating to bird flu was properly considered and the reasoning there set out cannot in my judgment be sensibly undermined.

Lastly (d). It was a matter of planning judgment what if any weight to give to effects on the existing enterprise. As the judge said, these points were really already covered in the arguments on the first point and she dealt with them very much in that way. The local planning authority and the judge were, in my view, entitled to approach those matters as they did. Overall on this part of the case I am inclined to agree with the submission made in writing by the interested party, namely that the applicant’s arguments tend to confuse the notion of leaving material considerations out of account with that of giving little or no weight to considerations which might well be accepted as material. Weight is always a matter for the planning decision maker on the merits. The interested party cites Tesco v Secretary of State [1995] Vol 1 WLR 759 at 780.

The last point which Mr Clayton addressed in his oral submissions this morning concerns the impact on property values. The applicants cite a number of instances in which property values, or I should say more accurately asking prices, have dropped at the prospect of this development. Unhappily in one particular case, one of his client’s properties has been on for sale for a considerable period of time with no offers being made. The learned judge below recorded the submission under this head as follows, paragraph 33:

“Mr Upton submitted that the development proposal shares an access way with the claimants, but this unusual factor was not taken into account in considering the balance between the applicant and the objectors. He said the amenity of the residents and the blighting effect of the threat of avian flu were not given enough weight. The residents’ material assets, i.e. the value of their properties including the livery stables belonging to Simon Roberts, were not considered, despite the fact that they are listed in Schedule 4 of the EIA regulations. The defendants failed to take account of the human factor and only considered the benefits of the proposal.”

In my judgment this argument cannot stand in light of this court’s decision in Lough v The First Secretary [2004] 1 WLR 2557. That was a planning case relating to a major development on the South Bank of the Thames. I can go directly to paragraph 51 of Pill LJ’s judgment:

“There remains the discrete question on the inspector’s finding ‘that matters of property valuation’ do not amount to material planning considerations, and its bearing on Convention rights. I readily accept that a diminution in value may be a reflection of loss of amenity and may be taken into account as demonstrating such loss and its extent but, in his reply, Mr Clayton, as I understand it, sought to create diminution of value as a separate and distinct breach of article 8 and article 1 of the First Protocol. Having regard to the background and purpose of each article, I do not accept that submission. A loss of value in itself does not involve a loss of privacy or amenity and it does not affect the peaceful enjoyment of possessions. Diminution of value in itself is not a loss contemplated by the articles in this context.

“I do not underestimate the importance to landowners of a loss of value caused by neighbouring developments but it does not in my view constitute a separate or independent basis for alleging a breach of the Convention rights involved. The weighing of interests should not be converted into an exercise in financial accounting to determine the loss to the respective landowners and to the community.”

That reasoning is not, so far as I can see, obiter; it is not, despite counsel’s submission to the contrary made per incuriam: and it seems to me to be binding on us. It disposes of the suggestion which Mr Clayton would pursue, if it were open to him, that there is here a potential violation of article 1 of the First Protocol to the European Convention on Human Rights. It also establishes that diminution in property values per se is not generally to be regarded as a planning consideration. So far as loss of value is said to be evidence of loss of amenity, loss of that kind is as it seems to me better judged directly, and it cannot be argued here that the local planning authority failed to have regard to the development’s prospective effects on amenity.

Mr Clayton was also inclined to submit that the terms of Annexe 4 paragraph 3 of the EIA Directive have the consequence that a failure to have regard to property values in a context of this kind might itself risk an infringement of European law. The reference there is to the term “material assets”. Mr Clayton submits that this shows it is a requirement of European law to bear in mind such matters as property values as freestanding considerations. However the expression, as my Lord, Lord Justice Mummery pointed out in the course of the argument, is plainly lodged within a list of aspects of environmental matters, and it does not seem to me possible to construe this paragraph in the Annexe as referring to freestanding considerations of private property values.

In all those circumstances there is, I think, no substance in the third point. I would hold against Mr Clayton, despite his comprehensive submissions, on all of the three points that have been canvassed. If my Lords agree, it is unnecessary to go into a remaining dimension in the case, namely whether the applicant should be put out of court on delay grounds.

For my part I would refuse the application for the reasons I have given.

I agree, and especially since this is a permission application rather than the full hearing of an appeal on the substantive issues, I think it unnecessary and probably unwise to add any separate reasoning of my own.

I agree. So permission to appeal is refused.