Monday, 2 August 2010

EIA for Polytunnels


The decision of the Court of Appeal early last month to give permission to appeal in R (Wye Valley Action Association Limited) v. Herefordshire Council and E C Drummond & Son [2009] EWHC 3428 (Admin) caused quite a stir among strawberry growers and other fruit farmers who have become accustomed to covering large acreages of land with polytunnels in recent years. Comments from the NFU and others on the judgment of Ian Dove QC which had been delivered in the High Court in December of last year seem to have been made without the benefit of reading the detailed judgment, and so it is worth going into what was in fact a thoughtful and carefully argued decision.

Until 2005, there were many people who thought that polytunnels were not to be classed as structures at all, but that was put beyond doubt by Waverley case (see below). The question which has now arisen is whether those polytunnels that do constitute development (and are therefore subject to the prior notification procedure under Part 6 of the Second Schedule to the GPDO or, in some cases, require express planning permission) should also be subject to Environmental Impact Assessment.

In the Wye Valley case, the application site was in an AONB, and up to 54 hectares of land would be covered with polytunnels at any one time, with individual blocks of polytunnels covering up to 10 ha each. The site is undoubtedly in a sensitive area. It is of significant landscape and built historic interest, with several listed buildings and a Scheduled Ancient Monument nearby , and the site abuts a Special Area of Conservation and an SSSI. Various public rights of way cross the application site and provide views towards it.

Prior to determining the planning application, the LPA adopted a screening opinion in which they determined that the proposal did not fall within either Schedule 1 or Schedule 2. Their Screening Opinion stated that the application involved the rotation of polytunnels for the purposes of growing soft fruit in the ground and on land that is already cultivated (mixture of arable and turf production) and that therefore the application would not require an Environmental Statement to be submitted. It was this, and in particular the Council’s determination that the development did not fall within Schedule 2, which was the subject of challenge in the High Court.

Natural England had observed in response to the Council’s consultation that rotation of polytunnels at Homme Farm is too infrequent to act as mitigation, and that polytunnels would be an annual feature in the landscape. On that basis they confirmed their landscape objection to the proposal.

The case clearly turned on the interpretation of the Town and Country Planning (Environmental Impact Assessment) Regulations 1999, which give effect to the Environmental Impact Assessment Directive (85/337/EEC) . By Regulation 2, “EIA Development” includes Schedule 2 development “likely to have significant effects on the environment by virtue of factors such as its nature, size or location..." The precise category in which the objectors claimed the proposals fell was paragraph 1(a) of Schedule 2 - "Projects for the use of uncultivated land or semi-natural areas for intensive agricultural purposes..."

The Court therefore had to consider whether or not the area within which this proposal is sited is “a semi-natural area”. To cut a long story short, the Deputy Judge concluded that whilst the European and UK guidance on this topic (which he quoted extensively) was helpful, it simply confirmed the view which he would have held, even without it, applying the wide scope and broad purpose of the Directive and construing the term "semi-natural".

The starting point, he suggested, is that in this context "natural" means untouched by man. It is well known that most of the landscapes of England have been subject to some extent or another to the hand of man artificially denaturing them through agriculture or through technological activity associated with settlement of the landscape. Semi-natural land is land where there has been some interference with that landscape, but the natural qualities which preceded or continued alongside man's activities are still clearly and obviously evident in the natural environmental capital of the area.

During the course of the argument, reliance was placed by the Council on the fact that the land was, and still is, cultivated, and that this should have an impact on whether the land is semi-natural. Obviously, the fact that there has been agricultural cultivation is a relevant factor, but it could not, in the Deputy Judge’s judgment, be determinative, because the language of the 1999 Regulations is "uncultivated land or semi-natural areas". That clearly contemplates that semi-natural land may be cultivated and, therefore, the fact of cultivation cannot remove land from this category. The fact that land has been cultivated does not automatically exclude it from the status of being semi-natural. This is where the Council went wrong, by assuming that because the land is already cultivated it is not covered by Schedule 2. There could be a Schedule 2 project on semi-natural land which had been the subject of cultivation.

The site also needed to be considered not only by itself but in the context of the wider area in which it was situated. This was a site which abuts a European designated site of nature conservation status, a Special Area of Conservation, and a site of Special Scientific Interest, a site which is within the AONB, overlooked by a Scheduled ancient monument, which clearly comes within the definition of "semi-natural area" as a matter of law. It is an area which has within it a significant number of designated sites, or areas, some of which are overlapping, and which are redolent of the high quality natural environment of the kind which could be described as “semi-natural".

The next question which arose was whether this was a project for intensive agricultural purposes. The purpose of providing the polytunnels is to engineer a step change in the productivity of the land. Whilst the crop grown remains the same, the amount of the crop and the length of time the land can be used to cultivate it is substantially extended. The productivity of the land is substantially improved. That is the object of this development.

This therefore led to the conclusion that the Council had made an error of law in finding that this development was not a project within Schedule 2 and so their decision had to be quashed, because in consequence of that the Council had failed to undertake an environmental impact assessment of the proposal. They failed to go on to consider whether or not the project would have significant environmental effects and, therefore, whether or not it required an environmental statement.

This case is expected to be heard in the Court of Appeal in November, so we have not yet heard the end of this. But this is a robust judgment which it may prove difficult to overturn.

© MARTIN H GOODALL

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The subject of polytunnels was one of the very early topics to be covered in this blog. At the time I wrote the piece (late in 2005), I had not been aware that this subject had recently been the subject of an appeal in the local authority area where I used to work which was heard and determined by an Inspector of my acquaintance. He told me when I met him a short time later that he was greatly relieved that what I had written coincided with what he had decided in the appeal! The appellants in fact challenged the decision (in R (Hall Hunter Partnership) v First Secretary of State and Waverley Borough Council and Tuesley Farm Campaign/Residents Group [2006] EWHC 3482 (Admin), when Sullivan J (as he then was) upheld the Inspector’s decision and agreed that polytunnels can amount to development.

Here is what I wrote:

Polytunnels

[2 December 2005] I was re-reading a copy of Planning the other day and revisited the ongoing debate over polytunnels. I no longer act for one of the largest strawberry growers in the country, so can comment on this topic without fear of prejudicing my clients’ interests.

Obviously it will be a matter of fact and degree in each case, but it seems to me that quite a few polytunnels now in use do amount to permanent structures for planning purposes and their erection thus constitutes development.

It is worth bearing in mind the tests originally propounded in Cardiff Rating Authority v. Guest Keen Baldwin ([1949] 1 KB 385),where one looks at size, attachment to the ground, how far its erection involves construction or assembly (as opposed to merely lifting it into place) and permanence. The other leading authority is the more recent case of Skerritts of Nottingham (which involved a marquee).

On the one hand it will no doubt be argued that polytunnels can be erected and dismantled by staff or agricultural contractors without specialist equipment or labour, but even in this case, if the polytunnels remain in place for more than a few months (let alone a year or more), they are likely to be seen as permanent and therefore in the nature of structures.

As one correspondent has pointed out, some polytunnels are complex assemblies with a substantial framework. They are fixed in place with deep anchors screwed into the ground by machine, and some can be a much as 5 metres high, extending over a considerable acreage. Polytunnels of this nature would clearly be structures, applying the tests both in Cardiff Rating and in Skerritts, and the work involved in their erection would undoubtedly come within the definition of either building or engineering operations in Section 55.

In principle, such structures should come within Class A in Part 6 of the Second Schedule to GPDO, although this should not be automatically assumed – the conditions and limitations applying to that class should be carefully checked. Provided a structure qualifies within Class A, planning permission is not required as such, but there is an absolute requirement to give prior notification, enabling the LPA to decide whether it wishes to approve the siting and design of the structures. If the structures are erected without the prior notification procedure having been strictly complied with, then their erection will not be permitted development and will therefore be unlawful, and the LPA would be perfectly entitled to issue an enforcement notice requiring their removal. I am aware of such enforcement notices having been upheld on appeal, and having survived at least one High Court challenge.

So, if polytunnels are a bone of contention with your authority, you may well be able to do something about it.

© MARTIN H GOODALL


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