Norman v Secretary of State for Housing Communities and Local Government & Ors

By an application made under section 288 of the Town and Country Planning Act 1990 (‘the 1990 Act’), the claimant, Felicity Norman, challenges the decision of the inspector appointed by the first defendant, the Secretary of State for Housing, Communities and Local Government to uphold the appeal by the third defendant, Mr Williams, against the refusal by the Second Defendant, Herefordshire Council of his application for planning permission to erect poultry buildings to house 82,500 birds. The inspector’s decision letter was issued on 4 December 2017, following written representations. For ease, this judgment refers to Herefordshire Council as ‘the Council’ and to Mr Williams as ‘the developer’.

The focus of the Claimant’s challenge is on environmental issues, in particular the inspector’s assessment of predicted odour and noise impacts and his reliance on an environmental permit already granted by the Environment Agency. She brings this claim in the context of her growing concern about the environmental impacts of poultry units in the context of their proliferation in Herefordshire and the difficulties faced by local residents in getting their concerns taken seriously. As well as being an elected Councillor and member of the planning committee of Herefordshire Council, the Claimant is the Chair of the North Herefordshire Green Party. During the hearing my attention was drawn to the recent decision of Squire v Shropshire Council [2018] EWHC 1730 (Admin) which also concerns a challenge to the grant of planning permission for poultry units, on grounds relating to environmental impact.

The Defendant challenges the Claimant’s standing to bring the claim on the basis that she is not a ‘person aggrieved’ within the meaning of section 288 of the 1990 Act.

By order dated 13 April 2018, Lang J ordered a rolled up hearing of permission, the substantive challenge and the question of standing. The question of standing only arises if the Claimant would otherwise succeed on her substantive challenge so I deal with the substantive issues first, which is the order in which Mr Goodman, who appeared on behalf of the Claimant, suggested I take matters.

The inspector’s decision letter describes the site, its location and the proposed development as follows:

“4.

Rogers Farm lies adjacent to the A4110, approximately one kilometre north of Bush Bank. There is a range of existing agricultural buildings and farmhouse which form the main farm complex. The appeal site is located directly to the south east of the farmyard and covers an area of some 1.35 hectares. The land rises gently from the existing farm buildings towards Lime Kiln Grove and Ladye Grove Woodland.

5 The proposed development would involve the erection of two poultry sheds on land immediately to the south-east of the existing farm buildings, part of a field currently laid to pasture. The sheds would accommodate approximately 82,500 birds per crop cycle. The birds would be grown up to approximately 35 to 37 days, with an eight to ten day turnaround period. The breaks between crops can be longer at certain times of year, such as Christmas or if clean-out is delayed, leading to around seven to eight crops per year. A new access road would be created and a comprehensive landscape planting scheme is proposed.

6 In addition to the farmhouse, there are two residential properties in the immediate vicinity of the site, Yew Tree Cottage, which is approximately 110 metres from the proposed poultry units and 85 metres from the proposed biomass boiler, and Micklegarth to the north of Yew Tree Cottage.”

The Council’s objections to the development had focussed on odour and noise impacts. The inspector had the following evidence before him in relation to predicted odour and noise impacts:

The odour assessment modelling on behalf of the developer and the Council was based on Environment Agency guidance set out in a document titled “H4 Odour Management – How to comply with your environmental permit”. The Agency’s guidance explains that whether or not odour emissions amount to serious pollution depends on a number of factors including frequency, duration and perceived intensity of exposure as well as the inherent offensiveness of the odour and the sensitivity of the receptor (e.g. residential houses). There is no single method of reliably measuring or assessing odour pollution and any conclusion is best based on a number of pieces of evidence. Modelling can be used to predict odour levels from new development. The modelling method commonly used in the UK calculates a 98th percentile of hourly average concentrations of odour measured over a year. Unacceptable levels of odour pollution can be assessed against exposure benchmarks. The guidance proposes the following benchmarks:

“Benchmark levels

The benchmarks are based on the 98th percentile of hourly average concentrations of odour modelled over a year at the site/installation boundary. The benchmarks are:

•

1.5 odour units for most offensive odours;

•

3 odour units for moderately offensive odours;

•

6 odour units for less offensive odours.

Any modelled results that project exposures above these benchmark levels, after taking uncertainty into account, indicates the likelihood of unacceptable odour pollution. You should also take evidence from other assessment methods and site specific influences into account when drawing final conclusions.”

Short term but intense odours during bird removal and clean-out operations were of particular concern to the Council. The guidance requires short / infrequent episodes of very high odours to be considered separately.

“If there are short or infrequent episodes of very high odours that are averaged out by the modelling they would need to be considered separately”.

No benchmarks are provided for short or infrequent odour episodes and no further specific guidance is provided in the document.

The odour modelling produced on behalf of the developer dealt with short term odours as follows:

“Odours that arise during the clearing out process although short in duration can be quite intense. AS Modelling & Data Ltd. do include a peak in emissions when modelling broiler rearing (See Section 3.5); however, as the duration of the emission is short, this has little effect on the predicted 98th percentile statistics, on which guidance on the acceptability or not of odour is based.

To address this, 99.5th and 99.8th percentile statistics, which the cleaning out process will have a more significant effect upon than it does on the 98th percentile statistics, have also been compiled. N.B. the 99.5th percentile is the value equalled or exceeded for 0.5% of the time and the 99.8th percentile is the value equalled or exceeded 0.2% of the time. The results for modelling of the proposed broiler houses at Rogers Farm alone are presented in Table 3b. No comment on the significance / acceptability is made as there is no guidance available; however, the descriptions in Section 3.1 of the main report may be useful when interpreting the results.”

The descriptions in Section 3.1 of the report are as follows

“At 2.0 – 3 ouE/m3 a particular odour might be detected against background odours in an open environment

When the concentration reaches around 5.0 ouE/m3 a particular odour will usually be recognisable, if known, but would usually be described as faint”

The environmental permit issued by the Environment Agency in 2015, pursuant to the Environmental Permitting (England and Wales) Regulations 2010, authorises the rearing of poultry in a facility with a capacity for 82,500 birds. Condition 3.3 of the permit regulates odour from the site and requires that omissions from activities shall be free from odour at levels likely to cause pollution outside the site. Condition 3.4 of the Environment Agency’s permit regulates noise by reference to a similarly worded condition.

The inspector identified the main issue in the appeal as the effect of the proposed poultry unit on the living conditions of neighbours with particular regard to odour and noise and the deposition of bio-aerosols (paragraph 3 of the letter).

Having described the site, its location and the proposed development he identified the main concerns raised by the Council which were inadequate consideration given to the potential for odour and noise to exceed acceptable levels, particularly short term impacts during bird removal and clean-out operations (paragraph 10):

“The Council considers that the assessments of noise and odour do not take adequate account of the impacts experienced by residents seeking reasonable enjoyment of their outdoor amenity space” (paragraph 11).

Turning first to odour, the inspector set out the evidence before him on the clean-out time of the units (10-12 hours in total) and the Council’s position that the clean-out times had been underestimated, as had the uncertainties associated with the odour modelling (paragraph 12 of the letter).

Having considered the evidence, the inspector set out his assessment of the odour evidence before him as follows:

“14.

In my view the Appellant carried out a robust assessment of potential odour impacts which complied with the guidance in the Environmental Assessment regulations. The odour assessment shows that the 98 percentile odours levels would only exceed 3ouE/m³ (described as the level where a particular odour might be detectable against background odours) at Rogers Farmhouse itself, which is owned by the Appellant. Receptors 2 (Yew Tree Cottage) and 3 (Micklegarth) would experience concentrations of less than 3ouE/m³. The contour plots shown in Figure 4 of the Odour Report carried out on behalf of the Appellant (Predicted maximum annual 98^th percentile hourly mean odour concentration) shows that the 3 ouE/m³ contour falls short of the dwellings themselves at Yew Tree Cottage and Micklegate and also most of their gardens/amenity space). Whilst concentrations of 3 (ouE/m³) may be exceeded in part of the gardens the exceedance would only be marginal.”

“15.

The report acknowledges that odours arising during the clearing out process can be quite intense, though of short duration. To assess this, the report set out statistics for the 99.5^th (the value equalled or exceeded for 0.5% of the time) and 99.8^th percentiles (the value equalled or exceeded for 0.2% of the time. A concentration of 5.98 ouE/m³ is predicted at Yew Tree Cottage for a maximum of 0.2% of the time. The equivalent figure for Micklegarth is 4.69 ouE/m³ (5.0 ouE/m³ is defined as a level that will usually be recognisable, if known, but would be described as faint).

16.

I acknowledge that odour concentrations may sometimes exceed the predicted mean values and that such raised levels are likely to be unwelcome to neighbours. Nevertheless I consider that they would be of very short duration and limited to the relatively infrequent clean out cycles. This does not seem to me to be an unacceptable frequency or intensity in a rural area where agriculture is a predominant land use…”

“17.

I note the Council considers that the duration of the clean-out cycle has been underestimated and may be longer than two hours. Even so, it is likely to use machinery and be of relatively short duration. The prevailing wind direction would tend to carry any odour away from the closest affected dwellings, and while the wind direction may not always be favourable, it would be for the most part. I am also mindful that the EP requires the facility to be managed to ensure compliance which will include measures to reduce odour, as set out in the Odour Management Plan approved by the EA.

18

While I acknowledge the sensitivity of nearby receptors, these are matters which have been considered at length through the permitting regime. The framework is clear at paragraph 122, that planning authorities should focus on whether the development itself is an acceptable use of the land and the impact of the use, rather than the control of processes or omissions themselves where these are subject to approval under pollution control regimes, planning authorities should assume that these regimes will operate effectively.

19.

The Council appointed independent consultants. They concluded that the predicted odour concentrations would be below the relevant EA odour benchmark at all receptor locations for all modelling years. The significance of predicted impacts was described as negligible at all receptors. The Council’s consultant predicted that the 98^th percentile concentrations would be lower than reported in the Appellant’s assessment.”

He assessed the potential noise impacts as follows:

“20

The Council considers that inadequate consideration was given to noise levels particularly during bird removal and clean out operations, the duration of which has been in the Council’s view underestimated. The issue of noise is taken into consideration by the EA in considering whether to grant an environmental permit. The Appellant submitted a noise report with the application, and further addendum reports to respond to queries raised by the EA and agents acting for objectors. These reports demonstrate that predicted noise levels would not be significantly adverse

21.

The operation of gable end fans was included in the assessment. The reports demonstrate that the noise levels generated by infrequent night –time events (such as bird catching) would be between 29dB to 34 dB, well below World Health Organisation sleep disturbance criteria, even with windows open at sensitive receptors, and is therefore reasonable and of negligible impact particularly when taking into account the infrequent occurrence of the event.

22.

With regard to HGV/forklift truck movements, these would be of short duration and would take place via doors which are located on the far side of the sheds away from the dwellings. The Appellant’s noise reports confirm that the impact of such infrequent activity would be within acceptable limits”

His conclusion on amenity was as follows:

“23.

I therefore conclude that there will be no significant harm to the living conditions of neighbours arising from the proposal in respect of odour and noise. I acknowledge that odour and noise impacts would be more readily appreciable in garden areas, and that use and enjoyment of gardens is not confined to summer and fine weather. Nevertheless, the evidence demonstrates that the noise and odour levels would remain within acceptable limits, even during the short and infrequent periods when bird catching and clearance would be taking place.”

He turns to other matters from paragraph 24 of the letter onwards, including responding to the Council’s concern that the crop cycles for birds (by which is meant the cycle during which the birds are grown before being removed for slaughter) may become shorter, thereby exposing neighbours to the risk of more frequent noise and higher concentrations of odour during clear-out:

“24.

The Council also suggest that crop cycles may become shorter, with the implication that episodes of noise, higher concentrations of odour and bio-aerosols become significantly more frequent. It refers to ‘expectation within the poultry industry that broilers will reach maturity within 20 days’. The Council does not consider that a suggested condition limiting the operation to 8 crop cycles would be enforceable, with significant resource implications for the enforcing authority.

25.

The application is made on the basis that there will be 7-8 crop cycles, based on a duration of some 33-37 days per cycle. There is speculation in the farming press that the length of cycle may reduce, but it is no more than that at present. To my mind, a condition limiting the number of cycles to eight would be precise and specific, and in the event of noise and odour incidents exceeding the predicted frequency, would enable the Council to take appropriate enforcement action.”

He reached his final conclusion on the planning balance as follows:

“32

It is highly material that an EP has been issued for the site by the EA. This addresses issues of noise, odour, emissions and waste that can impact on health and amenity. The grant of an EP pre-supposes that best available techniques will be used to minimise emissions. Paragraph 122 of the Framework is clear that local planning authorities should focus on whether development itself is an acceptable use of the land, and the impact of the use. Local planning authorities should assume that pollution and emission control regimes will operate effectively.

33

There is no suggestion that the use is inappropriate for the land, or that there would be any unacceptable efforts on the character and appearance of the area. No material conflicts with Policies SS6 and LD1 – LD4 of the CS have been identified. The reports submitted by the Appellant as part of the Environmental Impact Assessment have demonstrated that the proposal would not give rise to any unacceptable impacts on air quality and residential amenity, arising from odour, noise, bio-aerosols and emissions to the atmosphere and water environment. There would be no material conflict with Policies SD1 to SD4 of the CS. I therefore conclude that the benefits of the scheme would not be outweighed by any other matters and that planning permission should be granted.”

The principles of law which apply to the Court’s consideration of inspector’s decision letters are well established. They were distilled by Lindblom J (as he was then) in Bloor Homes East Midlands Ltd v Secretary of State for Communities & Local Government [2014] EWHC 754 (Admin):

“(1)

Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to ‘rehearse every argument relating to each matter in every paragraph’ (see the judgment of Forbes J. in Seddon Properties v Secretary of State for the Environment (1981) 42 P&CR 26, at p.28).

(2)

The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the ‘principal important controversial issues’. An inspector’s reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council and another v Porter (No. 2) [2004] 1 WLR 1953, at p.1964 B-G).

(3)

The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. A local planning authority determining an application for planning permission is free, ‘provided that it does not lapse into Wednesbury irrationality’ to give material considerations ‘whatever weight [it] thinks fit or no weight at all’ (see the speech of Lord Hoffmann in Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759, at p.780 F-H). And, essentially for that reason, an application under section 288 of the 1990 Act does not afford an opportunity for a review of the planning merits of an inspector’s decision (see the judgment of Sullivan J, as he then was, in Newsmith v Secretary of State [2001] EWHC Admin 74, at paragraph 6).

(4)

Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision-maker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context. A failure properly to understand and apply relevant policy will constitute a failure to have regard to a material consideration, or will amount to having regard to an immaterial consideration (see the judgment of Lord Reed in Tesco Stores v Dundee City Council [2012] PTSR 983, at paragraphs 17 to 22).

(5)

When it is suggested that an inspector has failed to grasp a relevant policy one must look at what he thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the policy in question (see the judgment of Hoffmann LJ, as he then was, South Somerset District Council v The Secretary of State for the Environment (1993) 66 P&CR 80, at p.83 E-H).

(6)

Because it is reasonable to assume that national planning policy is familiar to the Secretary of State and his inspectors, the fact that a particular policy is not mentioned in the decision letter does not necessarily mean that it has been ignored (see, for example, the judgment of Lang J. in Sea Land Power & Energy Limited v Secretary of State for Communities and Local Government [2012] EWHC 1419 (QB), at paragraph 58).

(7)

Consistency in decision-making is important both to developers and local planning authorities, because it serves to maintain public confidence in the operation of the development control system. But it is not a principle of law that like cases must always be decided alike. An inspector must exercise his own judgment on this question, if it arises (see, for example, the judgment of Pill LJ Fox Strategic Land and Property Ltd. v Secretary of State for Communities and Local Government [2013] 1 P&CR 6, at paragraphs 12 to 14, citing the judgment of Mann LJ in North Wiltshire District Council v Secretary of State for the Environment [1992] 65 P&CR 137, at p.145).”

In South Buckinghamshire DC v Porter (No.2) [2004] 1 WLR 1953 at [36], Lord Brown endorsed at [33] Sir Thomas Bingham MR's observations in Clarke Homes Ltd v Secretary of State (1993) 66 P & CR 263 at pp 271–272 in relation to reasons:

"I hope I am not over-simplifying unduly by suggesting that the central issue in this case is whether the decision of the Secretary of State leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved, as the parties agree, on a straightforward down-to-earth reading of his decision letter without excessive legalism or exegetical sophistication."

Even if the reasoning or analysis of a decision appears unsatisfactory, the Court must still find an error of law in order to justify interfering with the decision:

“….it is unsatisfactory that at the end of the day it is not clear how the conclusions of the Secretaries of State relate to that guidance or to the technical evidence based on it.”

Mr Taylor's difficulty however, is to convert this into a point of law, or to show that it would have affected the ultimate decision. It is clear that as a matter of law, the Secretaries of State and the Inspector were entitled to reach their own conclusions on the noise issue, even though that might conflict with the technical evidence before them. It seems to me highly desirable, as a matter of policy and practice, that the Inspector and the Secretaries of State should follow the framework established by the technical guidance and evidence. But I know of no principle of law which says that they are bound by that approach.” Carnwath J (as he was then) in British Aerospace Plc v Secretary of State (1998) 75 P & CR 486 at pp 497-8

The overlap between the planning and permitting regimes was considered in Hopkins Developments Ltd v First Secretary of State [2007] ENV LR 14, per George Bartlett QC:

“11.

The relationship between the planning and pollution control regimes has been the subject of consideration by the Court of Appeal in Gateshead MBC v SSE (1996) 71 P&CR 350 and R v Bolton MBC ex p. Kirkman [1998] JPL 787. They establish the proposition that the impact of air emissions from a proposed development is capable of being a material planning consideration but in considering that issue the planning authority is entitled to take into account the pollution control regime. Thus in appropriate cases planning authorities can leave pollution control to pollution control authorities, but they are not obliged as a matter of law to do so.”

The policy position is set out in the NPPF:

“120.

To prevent unacceptable risks from pollution and land instability, planning policies and decisions should ensure that new development is appropriate for its location. The effects (including cumulative effects) of pollution on health, the natural environment or general amenity, and the potential sensitivity of the area or proposed development to adverse effects from pollution, should be taken into account. Where a site is affected by contamination or land stability issues, responsibility for securing a safe development rests with the developer and / or landowner.

121.

Planning policies and decisions should also ensure that:

•

the site is suitable for its new use taking account of ground conditions and land instability, including from natural hazards or former activities such as mining, pollution arising from previous uses and any proposals for mitigation including land remediation or impacts on the natural environment arising from that remediation

•

after remediation, as a minimum, land should not be capable of being determined as contaminated land under Part IIA of the Environmental Protection Act 1990

122.

In doing so, the local planning authorities should focus on whether the development itself is an acceptable use of the 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. Equally, where a planning decision has been made on a particular development, the planning issues should not be revisited through the permitting regimes operated by pollution control authorities.”

The grounds of challenge advanced on behalf of the Claimant are that:

On behalf of the Claimant, Mr Goodman made the following submissions

Ground 2: A proper reading of the assessment in paragraph 22 of the decision letter is that the inspector exercised his judgment that the noise impacts would not be unacceptable on the basis of his mistaken understanding of the location of the doors. The noise assessment data only performed a subsidiary role in confirming his judgment. Had the inspector correctly understood the location of the doors, he might have looked more critically at the noise data.

Ground 3: the Inspector misinterpreted the Agency’s 98^th percentile benchmark of 3 odour units. Instead of recognising it as a benchmark for unacceptable odour pollution, he treated it as the threshold for detectability. In conflating the two scales he fundamentally misunderstood the implications of the odour assessments before him and failed to appreciate the real life experiences of those who will be exposed to the odours.

Ground 4:The inspector misunderstood and failed to engage with the assumptions and input data for the odour modelling: Uncertainties around the range of odour emission rates per bird, thinning out rates, manure management and the length of time that bird removal would take were key issues for the neighbouring objectors.

Ground 5: The inspector’s reliance on the grant of the environmental permit was erroneous and contrary to principle. The grant of the permit exerted significant impact on his judgment about amenity with the consequence that he deferred his judgment on these key issues to the permitting regime.

Ground 6: The Inspector relied heavily on an odour management plan, which was not before him and the grant of the environmental permit to which no responses had been received to the public consultation. This effectively created a gap in environmental assessment between the environmental permit (which came first) and the planning application, which the Courts have deprecated in cases on outline and reserved matters decisions.

Ground 1: Ground 1 is an overarching challenge enabling cumulative assessment of the other grounds.

Ground 7: The costs decision stands or falls with the principal decision and flaws identified in the decision letter flow into the costs decision and render it unlawful.

Ground 2: the inspector was mistaken in his understanding of the location of the doors but the error was not material. The basis of his decision on noise was the environmental statement which was based on a correct understanding of the location of the doors. Moreover, by the time the inspector came to exercise his judgment there was no evidence to indicate that noise levels remained a concern. The Council had dropped its noise objections, on the basis that noise could be mitigated satisfactorily. Concerns had been raised about noise from the forklift trucks by Mr and Mrs Pritchett at Micklegarth but the specific objection had already been addressed in the environmental statement.

Ground 3: Read as a whole, the inspector’s judgment was that the developer’s odour assessment was robust and it found that odours would be below the Agency’s benchmark of 3 odour units at the nearby residential properties. The challenge focuses narrowly on the words in parenthesis in paragraph 14 of the decision letter, where the inspector is simply adding a reference to a descriptive scale for additional context, not impermissibly conflating the two scales. He refers to descriptions of the smell in paragraphs 15 and 16, as well as paragraph 14. There can be no mistaken conflation of the Agency’s benchmark and the descriptive scale in paragraphs 15 and 16 because those paragraphs deal with short term impacts, for which the Agency’s benchmark is not applicable. If any error is revealed by the working in parenthesis in paragraph 14 it is simply a labelling error.

Ground 4: The inspector dealt with uncertainty over clean out times at paragraphs 12 and 17 of the letter. As the inspector recorded, the Council’s own odour assessment indicated that odour emissions would be negligible. The emission rates per bird constitutes detailed technical matters and not a principal controversial issue. The decision letter allows the parties to understand the conclusions reached on the principal controversial issues. Moreover, the Claimant has not been prejudiced by any inadequate reasoning given she had made no objections or representations before the inspector.

Grounds 5 & 6: The legal proposition is clear, impacts of land use are for the inspector to consider but he is entitled to take account of the environmental permitting regime. The inspector applied the policy correctly and considered odour and noise in detail. Ground 6 is parasitic on ground 5 and falls because it is based on the inspector deferring environment impacts to the environmental permitting regime which did not happen.

Ground 1: The inspector’s reasoning was entirely adequate.

Ground 7 – Costs Decision: The Inspector identified the correct test and exercised his discretion to decide the Council had not substantiated its reasons for refusal.

An inspector’s decision letter should not be laboriously dissected in an effort to find fault. Decisions are to be read benevolently and on the basis that they are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on these issues. The Court must be astute to ensure that challenges are not used as a cloak for a rerun of the arguments on the planning merits. An adverse inference that a decision maker misunderstood something will not readily be drawn and should only be drawn where all other known facts and circumstances point overwhelmingly to a different conclusion (Barwood Strategic Land II LLP v East Staffordshire BC [2017] EWCA 893 at 50; Mansell v Tonbridge and Malling BC [2017] EWCA 1314 at 41/2); R(Newsmith Stainless Ltd) v Secretary of State[2001] EWHC Admin 74; South Bucks DC v Porter(No 2) [2004] 1 WLR 1953 paragraph 34) (Bloor Homes East Midlands Limited v Secretary of State [2014] EWHC 754 (Admin).

On technical issues like noise and odour, judicial reluctance to interfere with matters of judgment is reinforced. The Court should be particularly wary of approaching such documents legalistically and should treat them broadly as documents produced by organisations seeking to offer technical advice and guidance. While it is necessary to understand them sufficiently to enable them to be taken into account correctly, more leeway should be given to the decision-maker with regard to their meaning and application than would be the case with planning or other policy (Holgate J in R(Nicholson) v Allerdale BC [2015] EWHC 2510 (Admin) at [60]).Stoke Poges Parish Council v Secretary of State for Communities and Local Government [2016] EWHC 1772 (Admin).

It is common ground that the inspector was mistaken in his view that the location of the doors to the poultry unit will be on the far side of the shed away from the neighbouring properties. In his submissions on behalf of the Secretary of State, Mr Williams set out the context (which was not disputed) in which the inspector made his noise assessment. Noise impacts had been the subject of assessment in the Environmental Statement. The Council’s position was that noise impacts could be mitigated satisfactorily by way of conditions.The specific issue about night-time noise from the forklift trucks, which forms the basis of this ground of challenge, had been raised on behalf of Mr and Mrs Pritchett and responded to in an addendum to the noise report issued on behalf of the developer. The addendum confirmed that the particular impact had been considered as part of the conclusion that noise impacts would not be significant. A later review of the environmental statement on behalf of the neighbouring objectors did not raise noise issues. Accordingly, by the time of the inspector’s decision making in relation to HGV/forklift truck movements, there were no outstanding objections. As well as the location of the doors, the inspector’s conclusions were based on the infrequent nature of the noise and confirmation from the noise report of the acceptability of the infrequent activity. The noise assessment relied on by the inspector was based on the correct location of the doors. In the circumstances I am satisfied that the error was not material. In the words of Sir Thomas Bingham MR in Clarke Homes Ltd v Secretary of State for the Environment(1993) 66 P&CR 263, it is an example of an error which does not leave room for genuine (as opposed to forensic) doubt as to what has been decided and why. In any event I am satisfied that it was inevitable that the inspector’s decision would be the same were the error to have been corrected because of the other evidence on which the inspector based his conclusion.

Grounds 3 and 4 raise the question of the inspector’s understanding of the odour evidence before him so it is convenient to take them together.

The inspector began his assessment by expressing the view that the developer’s odour assessment was ‘robust’. This finding is, it seems to me, central to the inspector’s judgment about the odour impacts and his finding is not challenged in this respect. This is unsurprising. Despite its concerns about odour, the Council itself accepted that the developer’s assessment complied with best practice and the Council’s own consultants predicted lower, negligible odour concentrations.

In examining the detail of the evidence before him, the inspector considered first the annual hourly average concentrations of odour (the 98^th percentile scale) at paragraph 14 of the decision letter. He found that odour at the neighbouring properties and in most of their gardens/amenity space would be less than 3 odour units. Concentrations of 3 odour units may be exceeded in parts of the garden but any exceedance would only be marginal. Mr Goodman did not challenge the technical findings but contended that the inspector misunderstood their implications by erroneously conflating the 98^th percentile scale with the descriptive scale.

I accept Mr Goodman’s submission any such conflation of the two scales would be erroneous and render the decision letter unlawful because the two scales are markedly different. The Agency guidance sets a benchmark for unacceptable pollution. Based, as it is, on the 98^th percentile of average readings, individual readings could exceed (considerably) the benchmark. In contrast the descriptive scale refers to an instantaneous reading and is akin to a snapshot of the odour experienced locally. I also accept Mr Goodman’s contention that the logical extension of this error, if made, would be a failure to appreciate the real life experience of the neighbours.

However, on a fair reading of the decision letter, I do not accept that the inspector did conflate the scales, as Mr Goodman suggests. The inspector starts the relevant sentence in paragraph 14 with express reference to the 98^th percentile odour levels. He uses the word ‘described’ in the bracketed sentence, in contrast to his earlier reference to ‘levels’ when referring to the 98^th percentile scale which indicates his awareness of the different scales. Moreover, there would have been no need for his subsequent analysis in paragraph 15 about the short term odours had he conflated the scales. As the Agency guidance explains, short term odours require separate consideration because they get averaged out (i.e. downplayed) by the modelling based on a 98^th percentile hourly average measured over a year. Further evidence, were it needed, of his understanding of the different scales, comes from his bracketed references in paragraph 15 to the ‘value equalled or exceeded for 0.5%/0.2% of the time. In my judgment, the reference to the descriptive scale in paragraph 14 is to be read fairly as the inspector seeking to provide some additional context and not because he was under a misapprehension as to the implications of the Agency’s benchmark.

Before the Court Mr Goodman fairly accepted that the inspector could not be criticised for citing the descriptive scale in paragraph 15 because there are no Environment Agency benchmarks for short term odours.

Mr Goodman also contended that the inspector failed to engage with a number of queries about the assumptions underlying the modelling raised on behalf of the neighbouring objectors, including emissions rates, manure management and uncertainties in the modelling.

Decision letters are not required to rehearse every argument or matters of technical detail. They should address the principal controversial issues. Decision letters are to be construed in a reasonably flexible way and on the basis that they are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on these issues.

The inspector’s central conclusion on odour was to accept the developer’s odour assessment as robust. The developer’s consultants had responded to concerns raised by the neighbouring objectors, including amongst other matters, emission rates per bird and uncertainties in modelling. Emission rates per bird and odour management constituted detailed technical matters and were not principal controversial issues. The inspector referred to and acknowledged uncertainty in the modelling evidence at paragraphs 12 and 16, in the context of his primary conclusion that the developer’s odour modelling was robust. Ground 4 is unarguable.

There will be inevitable overlaps between decision making concerned with control of the use of land and decision making to control any potentially harmful environmental impacts of the use of land. In considering the impacts of air emissions and noise from the poultry unit the inspector is entitled to take into account the pollution control regime and assume it will operate effectively but he must not simply rely on the earlier grant of the environmental permit and abdicate responsibility for his decision making (see Gateshead Metropolitan Borough Council v Secretary of State for the Environment [1995] Env L Reports vol 3 page 37, Hopkins Developments Ltd v First Secretary of State [2007] Env LR 14 and NPPF paragraph 122).

I am satisfied that the inspector did not abdicate responsibility for his decision making. The fact that seventeen paragraphs in a thirty four paragraph decision letter focus on odour and noise impacts is evidence of his close attention to the issues. His references to the environmental permit in paragraphs 18 and 32 of his decision are entirely appropriate. He reminds himself of the relevant NPPF guidance. He was entitled to have regard to the environmental permit, particularly where, as here the permit had been granted in advance of the planning decision and the conditions were available for inspection. Having had regard he went on to consider and form his own assessment of the odour/noise evidence before him.

As advanced by Mr Goodman, ground 6 (the inspector’s alleged failure to take account of the environmental impact assessment) is parasitic on ground 5 because it relies on the inspector having deferred his judgment on environmental impacts to the environmental permitting regime. As I have found he did not do I do not consider the ground further.

I find grounds 5 and 6 to be unarguable.

As advanced by Mr Goodman, ground 1 on reasons is an overarching ground drawing together the cumulative errors in the decision letter expressed in the other grounds. Accordingly it no longer arises in circumstances where I have found that the other grounds are not made out. In any event I consider the decision to be adequately reasoned.

As advanced by Mr Goodman, the challenge to the costs decision is dependent on the Claimant having established that the inspector’s decision on the appeal was unlawful. Accordingly this ground falls in light of my conclusions above. Nonetheless I accept Mr Williams’ submission that there is nothing unlawful about the costs decision. The Inspector identified the correct test and the basis of the application before him. He exercised his discretion and formed a judgment that the Council had not substantiated its reasons for refusal.

Given my findings on the merits of the substantive claim, it is not necessary for me to rule on the issue of standing. However the parties made full submissions before me on the point so I set out my brief assessment of the submissions.

The meaning to be attributed to the phrase ‘person aggrieved’ will vary according to the context in which it is found. It is therefore necessary to have regard to the particular legislation involved and the nature of the grounds on which the appellant claims to be aggrieved Walton v Scottish Ministers [2012] UKSC 44 at paragraph 84. In Ashton v Secretary of States for Communities and Local Government [2010] EWCA Civ 600 Pill LJ addressed the particular context of an application to the Court under section 288 of the 1990 Act. Normally, participation in the planning process which led to the decision sought to be challenged is required. There are exceptions but the example Pill LJ relies on – a person misled by a planning advertisement - indicates that the failure to participate requires readily apparent justification.

The Claimant lives 10 miles away from the development site. She does not have a private interest that is affected by the proposed development. She did not participate in the appeal before the Inspector. It was open to her to submit representations to the Inspector in a personal capacity but she chose not do so. Mr Goodman suggested her participation would have been superfluous because she would simply have been making the same case as the Council given her membership of the Planning Committee. Yet, as is apparent from her witness statement to this claim, the Claimant has wider reasons and experience to bring to the claim than simply her membership of the Council who refused permission. She is the chair of the North Herefordshire Green Party and has broader environmental concerns based on her experience. These are factors which the inspector might have found helpful to hear about but which were not put before him.

Mr Goodman submits that the Claimant would have standing under judicial review and that her standing should not be dependent on the route by which she arrives at the Court. In my view this does not assist Mr Goodman given the stipulation of the Court in Walton v Scottish Ministers to look specifically at the statutory context in which the question of standing arises.

It is also necessary to look at the grounds being advanced by the Claimant in this Court (Walton v Scottish Ministers [2012] UKSC 44 at paragraph 84). She advances the same concerns about odour and noise and impacts on residential amenity which the Council and the neighbouring objectors raised. She relies on the report produced for the neighbours in their objections to the Inspector and on arguments advanced by the Council. In my judgment the Claimant has simply stepped into the shoes of the Council and the neighbouring owners, who would be persons aggrieved, having participated in the appeal before the Inspector, but who have chosen, for whatever reason, not to challenge the inspector’s decision. Whilst the Claimant may feel aggrieved about the inspector’s decision, that does not make her a person aggrieved under the 1990 Act.

This is a rolled up hearing. I conclude that Grounds 2 (noise) and Ground 3 (odour) were arguable and I grant permission on those grounds but dismiss the claim. Grounds 4, 5 and 6 were unarguable. Grounds 1 and 7 were consequential on a finding of unlawfulness in relation to other grounds and accordingly I dismiss them. While it is not necessary to decide the question of standing for the purposes of this claim, I find that the Claimant is not a person aggrieved within the meaning of section 288 of the 1990 Act.