Palmer, R (on the application of) v Davenport (t/a Foxley Estate) & Ors

This matter was listed for a rolled up hearing of the claimant's application for judicial review of the defendant's grant, on 15 December 2014, of planning permission for the development by the First Interested Party of four poultry broiler units on agricultural land known as Flag Station, Mansel Lacy, Herefordshire. The claimant and his wife own a property known as Shetton Barns approximately 300m away from the proposed development, at which they run a holiday lettings business. A previous similar approval was quashed, by consent, on the grounds of procedural irregularity.

The proposed development consists of four large sheds, each approximately 95m long, 25m wide and 6m high. Each will have three feed silos adjacent, somewhat taller than the shed, and accommodate 45,000 broiler chickens at any one time. The sheds will be built on a raised hardstanding area, from which rainwater runoff would drain into the nearby Yazor brook after passing through a proposed attenuation pond designed to hold back what might otherwise be unacceptably fast runoff from the impermeable surface of the buildings and hardstanding.

It is common ground that the development is such that an Environmental Impact Assessment (or "EIA") is mandatory pursuant to Sch 1 Town and Country Planning (Environmental Impact Assessment) Regulations 2011, for which purpose the developer must submit an Environmental Statement ("ES"). There is then a process of publication and consultation, and the planning authority must consider any representations made. The ES submitted (Bundle vol 2/Tab 25/p408) was based, inter alia, on a drainage report prepared by Land Drainage Consultancy Ltd (1/10/137). The ES stated that foul water (from cleaning the sheds) would be drained to a 50,000L (50m³) underground tank for treatment. The drainage report addressed in particular the issue of flooding risk caused by surface water runoff. It states (p144) that the total impermeable area of the concrete platform (on which the sheds would be built, and including an apron for vehicular access) and an access track to the site would be 13,736 m², and recommended that rainwater runoff be directed into an attenuation pond, from which it would flow out at a controlled rate into the Yazor brook. The recommended size of the pond was calculated assuming rainfall at the maximum level expected once in 100 years, increased by 20% as an allowance for climate change. This gave a containment volume requirement of 1534 m³ (p160). An illustrative plan showing a suitable pond was attached (p165) and the report noted that based on its recommendation of a natural shape, shallow profile and maximum depth of 0.75m, a volume of 1600m³ would be achievable (p160).

The claimant puts forward seven grounds. Ground 1 is in these terms:

“Failing to give consideration to whether any of the New Elements and/or those parts of the existing Proposed Development, including the attenuation pond and the outfall/outflow from it, for which no/ insufficient details had been provided (hence the Council's imposition of conditions to the Permission requiring details) were likely to give rise to significant environmental effects, whether alone or in combination, not least the possibility that they might require an increase in impermeable area and/ or the expansion/relocation of the attenuation pond so failing to give consideration to whether the ES was deficient in this respect, failing lawfully to complete the EIA process and failing to have regard to material considerations.”

This is a somewhat diffuse formulation. In support of it the claimant submits that the ES was defective in that the plans on which the drainage report was based failed to recognise the full extent of the impermeable area that would or might be required, and so failed to assess whether the runoff attenuation proposed was sufficient. In particular it is said that:

Further, at a late stage the proposal was amended in two respects (referred to by the claimant as "the New Elements"):

All of these points had been made to the council by various objectors to the proposals. Mr. Burton submitted in his skeleton that there was "every likelihood" that additional hardstanding would be required for these matters, "meaning the attenuation pond was inadequate". The matter was "beyond doubt" he said in the light of the evidence of Ms Hamilton (the claimant's planning consultant, though not a drainage expert) who said in her witness statement (1/10/p 126) that they would require "a significantly larger attenuation pond…the application drawings show that there is no room for expansion in its current location…".

In considering this aspect of the Environmental statement the council commissioned (but did not make public) its own drainage report from its Land Drainage Manager (2/23, referred to as the "Council Drainage Report") which, it is accepted, reviewed and endorsed the assessment and mitigation proposals set out in the applicants' report. Its conclusion was (p375) "there are no objections in principle on flooding or drainage grounds, subject to the provision of drawings showing the outlet details, and drawings showing cross sections through the attenuation pond identifying depth, levels and dimensions."

Various responses received during the consultation period were summarised and addressed in a supplemental officer's report prepared by the relevant case officer and dated 7 July 2014 (2/17). That report listed all the letters of objection received, and in relation to drainage issues said this:

“Issues raised can be summarised as follows:...

•

Drainage/flooding issues and concerns about climate change, and in particular concerns in relationship to Yazor Brook …

A letter has been received from the applicant's agent in response to a letter of objection … it can be summarised as follows:

•

Drainage from the proposed development has been designed in accordance with the SuDS requirements. The development includes capacity on site for volume storage of any one in 100 rainfall event with 20% for climate change added. The surface water from the development will only be released into the brook at a green field run off rate. The way in which the drainage has been designed complies with the legislative requirements and will maintain the status quo with no additional loadings on the brook. The design has been accepted by the Council's drainage team…

Drainage and Flooding Issues.

Many of the letters of objection received raise issues in relation to flooding issues, with regards to the nearby Yazor Brook and capacity concerns, surface water run-off and issues in relation to drainage and development on site.

The Environment Agency raise no objections on this matter and the Land Drainage Manager also raises no objection, recommending conditions with regards to surface water outfall and attenuation structure.

Whilst concerns as raised by the objectors on this matter are noted, the development has to be considered on the merits of the application and potential flooding/drainage issues in relation to the development. The application proposes an attenuation pond in order to manage drainage on site and as such (sic) none of the statutory or internal consultees raise objections on this matter. Therefore it is considered that this matter is addressed satisfactorily and it is recommended that the conditions with regard to surface water outfall and on-site attenuation as recommended by the Land Drainage Manager are imposed.

Therefore on flooding and drainage matters the application is considered acceptable …”

These points were repeated in very similar language in a report prepared for the September 2014 meeting of the Planning Committee (2/18) with a recommendation for approval, but the matter was not dealt with at that meeting. It was considered again at the committee's meeting in November, at which a further officer's report, in similar terms on these issues, was presented. The papers for that meeting included an updating note (2/20/p321) which are summarised further representations received, principally it seems from Ms Hamilton, the consultant engaged by the claimant. So far as drainage is concerned however it notes that the owners of the adjoining farm, Mr and Mrs Powell, had stated that the proposed outfall into the Yazor Brook was at a point on their land, and they would not give permission for it. The officer's response was "if necessary other alternative access points are available and would be considered under the relevant drainage condition." A minor change to the text of the recommended conditions 16 and 17 was proposed, to require that the development be undertaken in accordance with the details approved by the Council under those conditions.

The minutes of the November meeting (2/20/p328) show that there was an extensive discussion of the proposal. Mr Palmer and other objectors spoke against it. The councillor for the relevant ward was in favour. Issues as to drainage are noted in the minutes, though there is no record that any of the objectors specifically raised the point now being made as to whether any apparent discrepancies in the proposed plans called into question the adequacy of the drainage arrangements. The point as to the location of the outfall was mentioned, with the ward councillor noting that, as the officer had stated, alternative outfall points were available. The committee then resolved that officers be authorised to grant permission under delegated powers, subject to a detailed list of conditions set out in the recommendation paper before the committee.

The permission granted included the following relevant conditions:

The law as to the degree of completeness and precision required before a document submitted can be properly regarded as satisfying the precondition for delivery of an environmental statement is set out by Sullivan J in R(Blewett) v Derbyshire CC [2003] EWHC 2775 (Admin), to which Mr. Reed referred me. In that case the judge said:

“32 Where there is a document purporting to be an environmental statement, the starting point must be that it is for the local planning authority to decide whether the information contained in the document is sufficient to meet the definition of an environmental statement in Regulation 2 of the Regulations…

33 The local planning authority's decision is, of course, subject to review on normal Wednesbury principles: see R v Cornwall County Council ex parte Hardy [2001] JPL 786, per Harrison J at paragraph 65, applying R v Rochdale Metropolitan Borough Council ex parte Milne [2001] Env LR 416 at paragraph 106…

38 The Regulations envisage that the applicant for planning permission will produce the environmental statement. It follows that the document will contain the applicant's own assessment of the environmental impact of his proposal and the necessary mitigation measures. The Regulations recognise that the applicant's assessment of these issues may well be inaccurate, inadequate or incomplete…

39 [The] process of publicity and public consultation gives those persons who consider that the environmental statement is inaccurate or inadequate or incomplete an opportunity to point out its deficiencies. Under Regulation 3(2) the local planning authority must, before granting planning permission, consider not merely the environmental statement, but "the environmental information", which is defined by Regulation 2 as "the environmental statement, including any further information, any representations made by any body required by these Regulations to be invited to make representations, and any representations duly made by any other person about the environmental effects of the development…

40 In the light of the environmental information the local planning authority may conclude that the environmental statement has failed to identify a particular environmental impact, or has wrongly dismissed it as unlikely, or not significant. Or the local planning authority may be persuaded that the mitigation measures proposed by the applicant are inadequate or insufficiently detailed. That does not mean that the document described as an environmental statement falls outwith the definition of an environmental statement within the Regulations so as to deprive the authority of jurisdiction to grant planning permission…

41 …In an imperfect world it is an unrealistic counsel of perfection to expect that an applicant's environmental statement will always contain the "full information" about the environmental impact of a project. The Regulations are not based upon such an unrealistic expectation. They recognise that an environmental statement may well be deficient, and make provision through the publicity and consultation processes for any deficiencies to be identified so that the resulting "environmental information" provides the local planning authority with as full a picture as possible. There will be cases where the document purporting to be an environmental statement is so deficient that it could not reasonably be described as an environmental statement as defined by the Regulations … but they are likely to be few and far between.”

Given this formulation it is in my view simply untenable to suggest either that the document submitted was so deficient that it was not an "environmental statement" for the purposes of the Regulations, or that the council acted irrationally, in the Wednesbury sense, in accepting it as such. It plainly addressed and considered, in a way the council was advised by its own drainage expert was appropriate and adequate, the main substance of the issue of potential flooding by surface water runoff. It was then for the council to consider, as a matter of planning judgment, whether any deficiencies in its analysis that might emerge from the consultation process were such that planning permission should be refused or could be adequately dealt with by conditions. Its conclusion on those matters is again one which is only challengeable in this court on conventional public law grounds.

Mr. Burton submitted that the council had failed to address and deal with the individual points referred to above, and in so doing had failed to take into account material considerations in relation to the Environmental Impact Assessment, or failed to consider whether the environmental statement was adequate. So far as the latter aspect is concerned, it is plain from what Sullivan J said that if deficiencies in the environmental statement submitted emerge later, they are to be dealt with as part of the consideration of the merits of the application, and not by revisiting the question whether that statement should have been accepted as sufficient to start the application process at all.

As to whether the matters raised constitute "material considerations" (and before considering whether if they are the council had unlawfully failed to take them into account) Mr. Burton submitted that the council was under an obligation to address each of them and consider whether they would produce a significant environmental effect, and if so to require further information in the environmental statement. He relied on Hereford Waste Watchers Ltd v Herefordshire Council [2005] EWHC 191 (Admin). It was not sufficient, he said, to rely on conditions to deal with any such effects after the grant.

In that case the defendant council had approved a novel waste management plant, subject to a condition that before construction the developer should produce, and the council must approve, a report detailing the level of all pollutants and emissions it would produce. Elias J held that the officers' report was consistent with the council having concluded that emissions from the plant would have a significant environmental effect and that it would be inconsistent with the scheme for public transparency and scrutiny of proposals having such effects to postpone the obtaining of details of those effects and evaluation of the proposed mitigation measures to a process dealt with in private by the council as to satisfaction of the condition. Hereford Waste Watchers indicates that if an authority has concluded a development entails a significant environmental effect, it should require information about that effect in the environmental statement and may not seek to deal with the identified effect by way of condition. It is not, therefore, a case that supports Mr. Burton's submission that the council must examine every environmental effect suggested by objectors after the environmental statement has been submitted and require that statement to be amended and resubmitted unless it was positively satisfied that there could be no significant effect.

The present case is in my judgment entirely different. Taken at their highest, the points raised as to possible additional hardstanding go to possible increases in the scale of an environmental effect already identified and addressed in the environmental statement. They do not point to any new effect which the council considered the development to have, but in respect of which the developer had not provided the information required by the Regulations.

Further, to the extent the points made consist of the objectors' fears or inferences that the development would in practice take a different form which would require more hardstanding, it necessarily follows that what they were concerned about was not the development for which permission had been applied, but a possible change to it, which would be a matter for the council to consider as and when any amended or further application was made. No doubt there would be cases in which a development is so inadequately described that it obviously cannot proceed as set out, in which case the council may be unable to assess what are its main environmental effects, but in my judgment that is not the case here. All of the matters raised are in the nature of relatively minor changes, if they eventuate at all.

As Sullivan J pointed out in Blewett, the Regulations are not intended to obstruct development and must be interpreted in a common sense way. It would be inconsistent with that approach to require that once a significant environmental effect has been identified, every minor or possible variation in the extent of that effect must be precisely identified and quantified in advance of approval or that every environmental effect suggested in the consultation process imposes a requirement that it be investigated and ruled out. It is for the authority to take a judgment on the significance of the matters raised in the light of the information available to them, which is a matter of its planning judgment and challengeable only, if at all, as such.

It is in my judgment plain from the various officers' reports and the minutes of the committee meeting that the council did consider the various points that had been made in relation to the adequacy of drainage. The resolution recorded does not state any specific reasons for rejecting those representations or reaching the recommendation, and it must therefore be taken that the reasons were in accordance with those set out in the recommendations to the committee, which it resolved to accept, i.e. that any issues as to drainage and flooding risk had been adequately addressed by the measures proposed. By implication, therefore, the council must have accepted that none of the objections raised demonstrated that these measures were inadequate, or gave rise to a sufficient risk that they would be inadequate such that a further assessment was required before the application could be approved with the conditions proposed.

In terms of the argument raised as to whether the council had failed to consider material matters, in my judgment this is to be approached on the basis that the council did consider the representations made, and evaluated them as not being material, or raising any matter that could not be adequately dealt with by the proposed conditions. The question for the court is whether that conclusion was irrational, in the Wednesbury sense. In evaluating that, the court is entitled to take account of the conditions attached to the commission, and the extent to which they mitigate or control any risk that might otherwise arise. Further, unless the matters raised are such that they are obviously material, in my judgment Mr. Reed is correct to say that the onus is on the claimant to demonstrate that they are material, or could not reasonably have been assessed by the council as not being material.

In relation to the matters relating to attenuation pond capacity, it seems to me that there can be summarised as follows:

It is also submitted under this ground that the council failed to take account of the fact that the outfall from the pond shown on the plans presented was at a point on land owned by the neighbouring occupiers (Mr. & Mrs Powell) who as noted above had stated that they would not give permission for it. This point was specifically mentioned in the officer update provided for the November meeting. The officer's comment was "if necessary other alternative access points are available and would be considered under the relevant drainage condition".

Mr. Burton submitted that the officer could not simply assume that alternative discharge points would be available that would allow the pond to perform its function without expert advice and so the council could not have been satisfied that it would in fact be adequate to deal with the environmental impact identified. This argument in my judgment is subject to the same fallacy. The objection made is at its highest an argument that the environmental statement is inadequate. It is for the council to evaluate that argument, whether it discloses any material consideration and if so how to address it. The necessary inference is that it did not consider that any material consideration was raised.

That conclusion cannot be arguably said to be irrational on the material before the council at the time, or subsequently provided to the court. The Yazor Brook passes near to the southern and eastern sides of the proposed pond. To the south it is in the applicant's land, and it is only to the east that it is on the Powells' land. The drawings provided show that there is a measurable fall in the peak flow level along the course of the brook, and the proposed outfall position is at the lowest point near to the pond. However the level of the brook in the section in the applicant's land is also below the design level of the pond, so that on the face of it an outfall could also be made there. Any repositioning would have to be shown on the detailed drawings which the council would have to have approved before development could commence, so that if any difficulty in fact emerged it would have to be resolved to the council's satisfaction before the development began. The precise location of the outfall is thus not obviously material to the effectiveness of the pond, and has not been shown to be material by anything that was before the council or the court. Any risk that a material impact might emerge was adequately protected against by the condition.

For these reasons, there is no basis in my view on which the Council's assessment that the representations in relation to drainage did not raise any additional material consideration can be suggested to be irrational.

The claimant also submits under this ground that the council failed to consider the visual impact of the "New Elements" on the setting of the listed Flag Station and, Mr Burton said in argument, on the claimant's own property which is substantially further away. The officer's report (p312) notes that the Conservation Manager (Historic Buildings) had considered the impact of the proposal on the listed building (and other listed buildings in the vicinity) and considered that, with the mitigation proposed, the impact would be acceptable. It states separately that the nearest residential buildings are approximately 320m away and (evidently taking into account matters wider than purely visual impact) "when taken together with mitigation through conditions the impact on the properties in the locality is not considered to be so harmful as to warrant refusal."

It is correct to say that these opinions were given without knowledge of the New Elements. In as much as these were late changes to the proposal, the question must be whether the council, through its officer, acted irrationally in concluding, as he impliedly must have, that they were not such as to be capable of changing this assessment, or requiring that the matter be referred again to the Conservation Manager. The so-called New Elements comprise, at worst, two categories of low-height construction. The suggested size of the foul water storage tank (to meet the required 50m³ volume) would be between 2 and 3 m high. The four LPG tanks, as far as can be judged from the photographs put forward by the claimant as showing similar items, would be no taller. In the context of the much taller and more massive construction assessed as acceptable, it is simply unrealistic to suggest that these additional elements could have any material extra visual impact, whether seen from the Flag Station or further away. It was therefore entirely rational and appropriate to leave their precise location to be controlled by condition.

Ground 2 is in these terms:

“Failing to publish the Council Drainage Report prior to the Committee Meeting contrary to the Local Government Act 1972, the Council's own constitution and natural justice, despite objectors having repeatedly raised concerns regarding the proposed drainage arrangements.”

It is accepted that the report was a background document that ought to have been disclosed pursuant both to the 1972 Act and the Council's constitution. The defendant asserts however in its detailed grounds of resistance that no prejudice has been suffered by anyone in consequence as publication would not have made any difference to the outcome of the application. The claimant in turn accepts that if this is the case, this defect cannot be relied on to quash the decision (R(Champion) v North Norfolk DC and others [2015] UKSC 52).

In his detailed grounds the claimant says that the report "went to issues raised by objectors… it included essential advice regarding the limitations on the outfall… to Yazor Brook, namely that this needed to be above the flood level of the Yazor Brook… without sight of the full advice [in] the Council Drainage Report the public…could not properly engage in the debate over drainage and flood risk…".

In my judgment there is nothing in this point at all. In respect of the specific information about the level of the outfall, as the Defendant notes, the same point was made in the developer's own report (1/10/p158). Further, the claimant has not demonstrated that this point would have assisted any argument against the scheme, for example because it was a requirement that could not be complied with. Indeed, from the levels shown on the documents in evidence, it appears to be readily satisfied, whether the outfall is at the location originally envisaged or elsewhere (see above). There is nothing else even suggested to be of assistance to any objector on drainage issues, and as noted above the Council's drainage report endorsed the developer's proposed solution. It is untenable to say that objectors could not "engage in the debate" on such issues because they did not have sight of a document that identified no new issue and could not add weight to the points they had already made.

In his skeleton Mr. Burton sought to add to this ground by pointing to the following statement in the Council Drainage Report:

“Surface Water Drainage

A Dutch hand auger was used to examine the soils across the site down to a maximum depth of 1.2 m. Multiple borings revealed a heavily textured, silty reddish-brown soil which was almost completely waterlogged throughout a majority of the soils profiles. That description complies with the soil description provided by Soil Survey England and Wales … for the area of the proposed development. In addition soil descriptions reveal that this area experiences a high water table.”

This he said was relevant to an issue (as to which see below) raised by objectors that the land was shown in the national Soil Survey maps as being in an area of Grade 1 agricultural land, whereas the developer had submitted that such maps were general only and could not be relied on at the level of an individual field, and that the field in question was of no more than Grade 3 status because of its poor drainage and water logging. Objectors had been deprived of important information that would have confirmed their argument.

I do not believe this would have been of any material assistance to any objector. It appears to have been a point lately identified by the claimants, which does not suggest that it immediately struck them as being one of any great weight. The only evidence they can point to is a statement made by their planning consultant Ms Hamilton (1/10/p130) that this statement "indicates that the soil concurs with DEFRA's Agricultural Land Classification Maps, which identify the land as Grade 1." No doubt the soil structure is likely to be part of the assessment of the grade of agricultural land, but there is no indication from this evidence, or anything else before me, that it is the sole or even a critical criterion. The council's Drainage Manager was not concerned to assess the agricultural grading of the land but only to comment as to surface water drainage. In that respect, his report confirms that the soil was waterlogged, which is the basis on which the developer submitted, and planning officers apparently accepted, that it should be regarded as Grade 3.

The claimant sought permission to add an additional ground of challenge as follows:

“2A Proceeding on the erroneous basis that … additional hardstanding would not in turn affect the size of the required attenuation pond…”

This arose from a point taken in the detailed grounds of resistance that since the drainage calculations had been done on the basis that the ground was assumed to have a nil infiltration rate (i.e. no capacity to absorb water by it soaking into the ground) it had effectively been assumed that all rainwater would flow off the surface into the brook and it therefore made no difference whether any or all of the ground was covered in hardstanding. Accordingly, it was said, the points made as to the required size of the pond were academic. Ms Hamilton's witness statement exhibited a letter from a qualified civil engineer stating that this was incorrect, and that an increase in impermeable hardstanding area would require an increase in the size of the pond. But Ms Hamilton's statement itself said that this was the reason why both the developer's engineers and the council's Drainage Manager had stressed the need to provide for an attenuation pond and performed the calculations they had. Accordingly, if the claimant is right and the point taken in the detailed grounds is an error, it is not an error that either of the expert drainage assessments made.

There is nothing in the contemporary documents to suggest that either planning officials or councillors took the view that the detailed calculation of the volume of the attenuation pond that had been done by those experts, or even the requirement to have such a pond at all, were superfluous because the whole area should be regarded as being impermeable. Nor do the detailed grounds of resistance assert that they did. Assuming the claimant's evidence is correct, all that it shows is that the defendant sought to make a bad point in its grounds of resistance (which it has not relied on before me) and not that the original decision was taken on the basis of any error. Permission for this amendment should therefore be refused.

Ground 3 is as follows:

“ Failing to require assessment of the environmental effects of the management of the manure from the broiler units ”

It was originally envisaged that manure removed from the sheds would be transported away from site. The proposal eventually approved however was for manure to be spread on nearby agricultural land owned by the applicants. The claimant says that this would amount to disposing of 7000 tons of manure per annum and that no assessment has been made of the effects of doing so, whether in terms of the odour produced or impact on water quality of ammonia or phosphates from the manure. This they say should have been assessed in terms of impact on residential properties, tourism and heritage assets as well as the brook and any other watercourses affected. The principal point relied on was the odour effects which it was said would be substantial over a wide area and would impact particularly on the claimant's tourism business.

Mr Reed submitted that the figure of 7000 tonnes per annum is incorrect, and is derived by misreading figures given in the environmental statement for the whole facility as if they were in respect of each of the four sheds. The correct figure would be 1600 tonnes pa. I agree.

Mr Reed further submitted that these aspects were addressed in the officer's report to the planning committee, which concluded that any impact on environmental health and residential amenity was acceptable. Accordingly, he submitted, the question for the court was limited to whether that assessment was irrational in the Wednesbury sense. As he pointed out, spreading of manure on agricultural fields, whether produced from broiler units or other animals, it is a very ordinary agricultural operation. No objections had been raised in the consultation process about any environmental effects resulting from spreading manure.

There was an assessment of odour prepared and submitted by the developer (2/24), though it is right to say that it is based on emissions from the four units themselves and not from manure spread on fields. Its conclusion was that (p406) "in most cases … odours from the proposed poultry units would rarely be detectable."

The officer's report addressed these issues in a section headed "Environmental Health/Residential Amenity Issues" (2/19/p313). Noting the proposal to spread manure as fertiliser in adjoining areas it said "this is considered a sustainable use and it is recommended that the conditions imposed with regards to a manure management plan which would include movement in covered trailers." In the context, the term "sustainable" might mean that it was considered that spreading the manure was an operation that could be carried on on a long-term basis without incurring a significant environmental cost. The "manure management plan" could be intended only to address the details of the operation, and the only specific point made was that manure should be moved in covered trailers, presumably to reduce any odour during movement.

The report then notes that the council's Environmental Health Officer raised no objections, and had referred to the fact that the operation would require a permit issued by the Environment Agency, which had indicated that it had no objection and would be likely to issue the required permit without any conditions attached. It noted that planning policy E16 stated that such units should be sited at least 400 m from non-agricultural dwellings and that units closer than this "will be carefully assessed", and stated that such assessment included consideration of the control that would be exercised by the Environment Agency through the operation of its permit. Later in the same report (para6.37) it was noted that "Paragraph 122 of the [National Planning Policy Framework] provides that local planning authorities should focus on whether the development itself is an acceptable use of land and the impact of the use, rather than the control of processes or emissions themselves, where these are subject to approval under pollution control regimes. Local planning authorities should assume that these regimes will operate effectively."

Although the nearest residential buildings were approximately 320 m from the host site the conclusion expressed was "When taken together with mitigation through conditions the impact on the properties in the locality is not considered to be so harmful as to warrant refusal… in terms of environmental health and residential amenity issues, the application is considered acceptable and in accordance with the policies of the [local development plan]."

It is also apparent that issues of the effect on nearby buildings, and particularly odour effects, were extensively discussed at the planning committee meeting which resolved to approve the development. Among the comments noted from the debate (p330) was this: "It was asked whether sufficient account had been taken of the fact that there were properties within 320m of the development. The Environmental Health Officer commented that even if properties were within 200m of the development the assessment was that noise and odour levels would be acceptable." There was also a reference to the fact that a further assessment would be required if the operators sought to increase the size of the development further in the future and discussion of whether "additional strength and conditions were necessary in respect of the heating system to be used and odour management and noise management plans." The final word in the debate was given to the local ward councillor who is noted as commenting that "Odour would rarely be detectable. The tourism business referred to was up wind of the prevailing wind… there were no planning grounds for refusal."

There is thus no doubt that the potential odour effects were considered both by officers and by committee members, in the context of it being known that the proposal included spreading manure on fields and was therefore not limited to the matters assessed in the odour report submitted. The committee decided that the proposal was acceptable and must have done so because its members were persuaded by the opinions of the reporting officer, backed up by the Environmental Health Officer and the fact that the Environment Agency had indicated it had no objections, and the ward councillor. There is in my view no basis upon which it can be said that that opinion, in relation to issues of odour, can be said to be irrational, however much the claimants might disagree with it.

So far as pollution from the manure is concerned, the issue in relation to ammonia was referred to in the environmental statement and plainly considered to be acceptable by the Environment Agency. It is said that the statement did not deal with the result of spreading the manure on fields, but it is clear that the Environment Agency was aware of this and there can be no realistic doubt that if it considered there to be any significant problem raised it would have been mentioned in its response.

There was one consultation response pointed to which made mention of phosphates. It came from Herefordshire CPRE and referred to a "Nutrient Management Plan" compiled for Herefordshire council by Natural England and the Environment Agency which "demonstrates unequivocally that there is serious pollution of some of the county's main rivers… At least 40% of the pollution of the Lugg is derived from agriculture with poultry manure being a major contributor to the unacceptably high phosphate levels. Thus new poultry units spreading poultry manure on fields is inevitably going to increase the pollution levels." Neither the Environment Agency nor any other respondent suggested that pollution by phosphates might be a problem.

The consultation response from HCPRE was unspecific as to the actual impact of phosphates released from manure produced at the proposed site, simply noting that there would be some effect. That response went on to quote the provisions of para 122 of the NPPF discouraging local authorities from considering measures relating to the control of emissions where there were other regulatory authorities with that responsibility. In those circumstances, it seems to me that it was entirely open to the defendant to conclude that this objection did not disclose any environmental impact such as would justify refusal.

Ground 4 reads as follows:

“Failing to discharge its duty under s 66(1) of the Planning (Listed Buildings and Conservation Areas Act 1990, in particular by failing to assess the non- visual impacts of the proposed development on the setting of the Grade II listed Flag Station.”

S66(1) requires that a local authority considering permission for a development "which affects a listed building or its setting… shall have special regard to the desirability of preserving the building or its setting". The grounds go on to allege that the reports of the planning officer, and the advice of the Conservation Officer on which they were based, address only issues of visual appearance and not impact on the setting from odour and noise arising from the machinery at the broiler units and HGV movements to and from those units.

It is not suggested that the defendant failed to consider the impact on the setting of the listed Flag Station at all. The officer's report (2/17) deals with this explicitly (p279) and reaches the conclusion that impact on the setting of the listed building is acceptable and in compliance with relevant policies and the NPPF. It is right to say that the specific matters referred to in that report, and in the comments of the Conservation Officer, concentrate on matters of visual impact. Those comments include the following (p275):

“Flag Station is used as a dwelling in the ownership of the applicant and there are modern farm buildings forming an agricultural yard to the east of the listed building… given the proximity of the proposal to the grade II listed Flag Station and its platform it is necessary to ensure there is compliance with policy HBA4, Setting of Listed Buildings… It is proposed to keep the poultry units to the southern end of the application field in order to reduce their impact on the setting of the listed buildings… There are already modern farm buildings to the east of the listed structures which affect the setting of the listed buildings. It is not considered that the current proposal would significantly affect the setting of Flag Station, not least due to the level of mature trees and general landscaping between the listed building and the proposed site…

Overall the proposal should have no detrimental impact on the setting of the listed building … given the mitigation measures proposed.”

Officers' reports are of course to be read in a sensible and practical way, and not minutely dissected as if they were intended to be precise pieces of legal drafting. There is no doubt that the planning officer was aware that noise and odour issues arose, and that these were distinct from visual issues; he referred to them separately when summarising the issues raised by objectors at p277. There is no reason to think either that he had overlooked the fact that any noise and odour produced would affect the nearby building, given that extensive consideration had been given to the effect on those further away.

Nor is there a reason to think that members of the committee themselves were unaware of these potential impacts. They conducted a site visit, and so were plainly aware how close the Flag Station was to the proposed building. The number of vehicle movements was explicitly referred to in the report submitted to the meetings in September and November (2/19/p301) as were objections that had been received from the claimant's consultant in relation to noise and odour, though these focused on the impact on neighbours (which was where their client's interests lay) and not on the Flag Station itself (p305).

The point about odour impact on the Flag Station was explicitly raised at the November meeting, as can be seen from the summary presented by planning officers of the most recent representations received from the claimant's consultant. Amongst his summary of the points made included the following (p321): "Conservation Officer refers only to visual impacts, not odour impact on Flag Station". No point seems to have been taken about noise. The section recording his comments included the following "Flag Station is in the control of the applicant. It is not unusual for dwellings on poultry units to be in close proximity to the buildings." No relevant change was made to the officer's recommendation.

Taken in the round, it seems to me that the sensible inference from all this is not that the officers and the committee failed to take account of impacts other than visual ones on the setting of the Flag Station, but that they reached a conclusion about the impact on the setting of the listed building in which they considered that the main potential impact on that setting was visual, and so naturally concentrated on that. It is not in my judgment necessary for officers to refer individually to every potential aspect of the impact on the setting, nor is there any requirement that any detailed or structured assessment should be made of every such aspect. It is not therefore a proper inference from the fact that they have failed to mention a particular point that it has been ignored. Given the amount of focus on noise and odour issues generally in this case, it is not credible that either officers or committee members did not have them in mind when considering the impact on the listed building. The assessment of that impact was a matter for the planning judgment of the committee. There is no doubt that the duty was considered and a judgment exercised, and I am not persuaded that any error of law was committed in doing so.

Mr Burton criticised the fact that the officer appeared to give as his reason for rejecting the argument that the conservation officer had concentrated only on visual impact that the Flag Station was owned by the applicant. It would not of course be a valid reason for accepting an impact of an application on the setting of a listed building that the applicant owned the listed building and the impact was acceptable to him. That would amount to accepting that the owner's opinion was decisive, and effectively negate the protection intended to be given to historic assets. But I am not persuaded that it is a fair reading of the minutes to say that either the officer or committee members approached the matter in this way. The officer had formed the view that the impact on the setting of the listed building was acceptable, and the comments made it seem to me to indicate only reasons why in his view the issue raised as to odour was less important than visual matters and did not affect that judgment, in which respect it was relevant that the listed building was in an agricultural setting and might be expected to be affected by otherwise acceptable agricultural uses. It was also relevant in general planning terms that noise and odour impact this would be less likely to attract complaints where they fell mostly on the applicant.

Since this judgment was circulated in draft, Mr. Burton has pointed out that in his skeleton and oral submissions he also expanded on Ground 4 as it had been filed, submitting that the duty under s 66 required that the council must "demonstrably" give "considerable importance and weight" to any kind of harm to the setting of the listed building. The officer's report had stated that the setting of Flag Station would be affected, as had that of the conservation manager, but the council, he said "did not acknowledge that, [or] the implications for the s 66(1) test". He relied on East Northamptonshire DC v Secretary of State for Communities and Local Government [2014] EWCA Civ 137 and R (Forge Field Society and others) v Sevenoaks DC [2014] EWHC (Admin). He made further written submissions on that point, to which Mr. Reed responded.

It is not in my judgment arguable that the council failed to acknowledge the s66 duty, or that the identified harm to setting impacted on that duty; the point was made in terms in the officer's report to the November meeting (p312 at para 6.12). Nor is it any legitimate ground of criticism that this reference was couched in the language of the statute and not the judicial gloss ("considerable importance and weight") put upon that language.

In East Northamptonshire Sullivan LJ held that the duty stated in s66(1) to "have special regard" to the desirability of avoiding harm to a listed building or its setting meant that the decision taker must give this "considerable importance and weight" in balancing any harm found to be caused against other factors in favour of giving permission (para 24). He upheld the judge's conclusion (as to which see para 10) on the facts that an Inspector had not done so because although his report had acknowledged the duty under s66 "at no stage in his decision letter did he expressly acknowledge the need, if he found that there would be harm to the setting of the many listed buildings, to give considerable weight to the desirability of preserving the setting of those buildings" (para 29).

East Northamptonshire was a case of substantial visual intrusion by a controversial development (wind turbines) into the setting of a Grade 1 listed building for which, it had been argued, a considerable part of its significance was the intention of its designer that it should have uninterrupted views. The Inspector had concluded that although harm would be caused, it was "less than substantial" and outweighed by the benefits of the development, applying the language of various Government planning policy statements (para 3). Forge Field involved a challenge to a decision of a local authority granting permission for housing in a field in green belt and an AONB, close to Grade II and II* listed buildings. In that case Lindblom J held that the authority had "carried out a simple balancing exercise between harm to heritage assets and countervailing planning benefits without heeding the strong presumption inherent in s66… against planning permission being granted in a case such as this" (para 55).

It is still plainly the case that it is for the decision taker to assess the nature and degree of harm caused, and in the case of harm to setting rather than directly to a listed building itself, the degree to which the impact on the setting affects the reasons why it is listed. Further, it is for the decision taker then to balance that against the benefits of the development. The duty to accord "considerable weight" to the desirability of avoiding harm does not mean that any harm, however slight, must outweigh any benefit, however great, or that all harms must be treated as having equal weight. The desirability of avoiding a great harm must be greater than that of avoiding a small one. The desirability of avoiding harm to a high category heritage asset must be greater than that of avoiding a similar harm to a less important asset. This is in my view recognised in para 28 of the judgment of Sullivan LJ. Were it otherwise, the presence of a listed building would have the effect of sterilising its surrounding area against any substantial development. Since there are a great many listed buildings, of varying quality and importance, this would act as a substantial obstacle to development of large parts of the country.

Furthermore, in carrying out that balancing exercise, the decision taker is exercising a planning judgment, albeit one informed by the requirement to give "considerable weight" to one factor; see Forge Field at para 49. This is so in respect of the evaluation of both sides of the balance, and in balancing one side against the other. What constitutes the "setting" of a building, and the degree and importance of any impact on that setting are not objectively determinable but matters of planning judgment. In the present case, for instance, Flag Station was listed because it was formerly a railway station in the age of steam locomotives, in which character it would hardly be likely to have been unaffected by noise and smells. Having found harm, it must still be weighed against the benefits of the development. "Considerable weight" on one side of a balance may still be outweighed on the other. Whether it is or not in any particular case is a planning judgment.

The degree of detail required in addressing these matters plainly varies with the circumstances of the case and the issues in it. Neither case relied on requires that in every application detailed reasons must be stated addressing every alleged harm and expressly conducting a balancing exercise in respect of it. Whether the authority has "demonstrated" that it has complied with its duty is a matter for the overall assessment of the court, and not a judicially imposed requirement that the duty be referred to and recorded as having been dealt with in some prescribed language or formulaic manner. In the present case, the authority paid careful attention to its obligations by having the proposal considered by its two relevant conservation officers as well as the planning officer principally in charge, all of whom concluded that it was acceptable. The officers recognised the statutory duty and cannot in my judgment be criticised for stating shortly their conclusions in respect of it, either in relation to the aspect they considered most significant (visual impact) or, when it was explicitly raised just before the November meeting, that which they considered less important (noise and odour).

Mr. Burton further suggested that in concluding that the officers had not treated the fact that Flag Station was in the ownership of the applicant as decisive I had ignored the evidence of Ms Hamilton, which he said was uncontradicted, that at the meeting Mr. Tansley had told councillors "that Flag Station was not considered to be a protected building because it was in the ownership of the applicant and would be occupied by an agricultural worker". I very much doubt if this is an accurate summary of what Mr. Tansley said (it is not said to be a quotation). Mr. Tansley and councillors well knew that Flag Station was listed, and that its ownership and occupation were irrelevant to that. Insofar as he was commenting on the officers' assessment of the degree of importance of any impact on its setting from noise and smells, that was relevant and does not show that the committee were diverted from acting in compliance with the expressly acknowledged duty under s66.

Ground five is as follows:

“Failing to secure the necessary landscaping mitigation through conditions that are sufficiently precise and enforceable.”

In relation to this, it was submitted that the conclusions reached as to visual impact of the development depended substantially on the provision or maintenance of hedges and trees to reduce the visual impact of the buildings as seen from the claimant's and other properties, some of which would be outside the application site itself although on land owned by the applicant, and yet the conditions imposed were not specific as to what measures would be taken, requiring only plans to be produced and approved by the Council, did not control landscaping outside the site, did not require all the landscaping to be in place prior to the commencement of building and envisaged a soft landscaping scheme that would only have to be maintained for five years.

There is of course nothing unusual in matters such as hard and soft landscaping being referred to in general terms in a permission which requires that the detail be set out in the scheme to be produced later and approved by the planning authority. It is not the case here that the assessment of visual impact depended upon the achievement of precise objectives by such measures, so that it might be said that there was an obligation to set out conditions that imposed a requirement to achieve precisely those objectives and nothing less. Rather, the judgment was a general one that the visual impact could be rendered acceptable by measures that were adequately described in general terms. That is a matter of planning judgment.

Whilst it is the case that some of the language of the conditions refers to matters "on site" (e.g. condition 9) others do not. Condition 10 for instance refers to all existing trees and hedgerows that are to be retained in accordance with the approved plans and particulars, therefore including no doubt those that are shown to be retained even though not on the application site itself. Condition 13 requires the development of the landscape management plan including long-term design objectives "for all landscape areas including the woodland area immediately to the South of the application site". Plainly therefore this includes landscape areas outside the application site itself. The language is general and inclusive, and there is therefore nothing in the submission that was made that by referring only to the woodland area "to the South" it is not adequate to protect trees between the application site and the claimant's property, which is not due south but to the south-south-west.

Condition 12 requires that the soft landscaping scheme shall be completed no later than the first planting season after the development is completed, and thereafter maintained for five years during which time any trees shrubs or plants that die must be replaced. It was submitted that this meant there was no protection at all to landscape after the five-year period. That in my judgment however is not a fair reading of the conditions. The five-year period is evidently intended to ensure that the proposed new planting becomes properly established, and thereafter both that new planting and the existing hedges and trees required to be retained are to be maintained in accordance with the long term landscape management required by condition 13.

It is correct that the conditions do not require that all of the proposed landscaping measures are put in place prior to the commencement of any construction work. But there is no obligation on the authority to ensure that that is the case, and Mr Reed is right to submit that the terms of these conditions and the balance to be achieved between permitting the development to go ahead and the introduction of measures to reduce the impact on nearby properties is entirely a matter for the planning judgment of that authority.

Ground 6 is follows:

“ Failing to have regard to the claimant's fear that the proposed development will ruin, rather than merely affect, the Shetton Barns tourist business. ”

The grounds submit that the claimant's fear to this effect was not acknowledged in the officers' reports, and that even if it was considered not to be objectively justified, the existence of that fear was capable of being a material planning consideration.

It is no doubt the case that the existence of fears on the part of the public as to the effects of a development may be taken into account as a relevant planning consideration even if the fears are not supported by any objective or scientific evidence. That may for instance be the case where a substantial number of people fear a health effect, say from the operation of a radio mast, even if the scientific evidence available does not show any basis for that fear. This is not at all the same as saying that the council must take account of every fear that is expressed, still less that it must operate on the basis that every such fear must be accepted as if it were justified, or must be guarded against.

There can be no real doubt that the officers and councillors were well aware of the extent of the effect that the claimant contended the development might have on his business. The claimant made a great many submissions to emphasise his objections, both personally and through his specialist consultants. He spoke at the November meeting, and although the minutes do not record exactly what he said, I have little doubt that he would have emphasised the extent of his concerns. The minutes make a number of references to arguments raised as to the impact on tourism and the conflict with a tourist business, which is presumably a reference to the claimant's business. It is not an arguable error of law that these points are noted generally or not referred to in the precise terminology that the claimant may have used. It is plain that the substance of them was made clear to the decision takers.

It was the function of the officers and councillors concerned in the exercise of their planning judgment to balance the objections made, including that one, against the merits of the application, and in doing so to weigh up the strength of that objection and whether they regarded the concerns expressed to be justified. They did so, and must be taken to have preferred the arguments made, by the ward councillor and others, that the effect on the tourist business would not be as significant as alleged, and was not a sufficient ground to refuse the application.

Ground 7 is as follows:

“ Failure to reach a conclusion on or provide reasons for a conclusion on the loss of agricultural land marked as Grade 1 on DEFRA's Agricultural Land Classification Map but which the [developer] asserted was only Grade 3B ”

The claimant had contended, relying on the map referred to, that the application site was Grade 1 land, and that its loss for the purposes of the proposed development would be contrary to the authority's published policy E15. The officer update for the November meeting records the fact that this objection had been put forward by the claimant's planning consultant, together with the response of the applicant's agent that the classification maps were general in nature and could not be relied on at the level of a specific field, and that the field in question was the worst on the farm by reason particularly of waterlogging and liability to flood. The issue is not referred to in the "officer comments" section of that update, and there is no record in the minutes of any point being made on this issue by any of those who spoke at the meeting.

Reading the officer's report in a commonsense way as I must, it seems to me that he must have concluded that the information provided by the applicant's agent was the more reliable and the claimant's contentions were not sufficient to require the matter to be investigated further. The relative importance of the point in planning terms was also a matter of his planning judgment. No doubt with hindsight it might have been better if he had stated this explicitly, but members of the committee were properly informed of the contentions that had been made, and it must therefore be taken to be among the considerations they had in mind when giving their approval. As Mr Reed points out, it is not necessary for reasons to be given for approval, and so it was not necessary for a conclusion to be specifically expressed on this issue.

I do not consider that it is realistic to think that if the claimant had been in possession of the council's drainage report and able to refer to its statement that the soil structure found was consistent with the DEFRA map classification it would have made any difference to this conclusion. It was a tangential reference in the course of considering a different point, and it is stating the matter altogether too highly to say, as the grounds do, that it "rebutted" the applicant's position.

In my judgment Grounds 3 and 4 are sufficiently arguable to warrant the grant of permission, though I have concluded that they ultimately fail. I would refuse permission on all the other grounds, and refuse permission to amend to introduce the proposed ground 2A.