Thursday, 27 January 2011

Polytunnels decision vindicated

I commented on 2 August 2010 on the permission granted by the Court of Appeal for an appeal to be brought against the first instance decision in R (Wye Valley Action Association Ltd) v. Herefordshire Council (see “EIA for polytunnels”). Following a hearing in the Court of Appeal in November, judgment was delivered yesterday (26 January) - [2011] EWCA Civ 20 - and the first instance decision was overturned, thus restoring the local planning authority’s original decision.

It was not the visual impact of the development which was directly in point in this litigation, although there are many who think that the visual effect of such an extensive area of polytunnels does have a significantly damaging impact on the landscape in question. The case turned on the interpretation of the phrase “projects for the use of uncultivated land or semi-natural areas for intensive agricultural purposes” as used in the European directive on environmental impact assessment and in the corresponding UK regulations.

What was in dispute, therefore, was the Council’s screening opinion, determining that this was not a case in which EIA was required. The land in question was clearly not ‘uncultivated’, and the case turned on whether it could be described as ‘a semi-natural area’. The Court of Appeal drew attention to the relevant guidance note on the interpretation of these phrases issued by the European Commission and to corresponding guidance issued by Natural England, and placed particular reliance on the advice that “some semi-natural areas may have been subject to low levels of cultivation (e.g. some semi-natural hay meadows and wetland may have been subject to low levels of farmyard manure)”. The guidance note from Natural England gives further examples, including species-rich hay meadow (upland and lowland), unimproved grassland (including calcareous, acid and neutral grassland), coastal and floodplain grazing marsh, scrub consisting of self seeded wild shrubs and trees, fen, marsh and swamp, dwarf shrub heath (i.e. moorland and heathland), peat bogs, bracken, land above the tree-line (i.e. usually over 600 metres above sea-level) and standing water and canals.

The guidance note goes on to say that semi-natural areas are defined largely by the plants and wildlife they support (as detailed in Annex 1 to the note). Often they will not have been subject to active cultivation for many years. However, they may in the last 15 years have been subject to low levels of physical cultivation (e.g. chain harrowing may have caused some disturbance of soil, but there will not normally have been any sub-surface cultivation such as ploughing, discing or heavy harrowing), or to low levels of chemical cultivation (e.g. to replace nutrients lost through hay-cutting or water leaching, as often happens in the traditional management of semi-natural meadows and wetland). The Court of Appeal placed particular reliance on a statement in Annex 1 that "All 'Arable and Horticulture' and 'Built-up areas and gardens' are excluded from the semi-natural habitat definitions."

The primary question, therefore, was whether the Council correctly understood the meaning of the expression "uncultivated land or semi-natural areas". Richards LJ, giving the leading judgment, could see nothing to support the view that it misunderstood the expression or, therefore, that it fell into legal error at this stage of the analysis. The deputy judge (at first instance) considered that the Council erred in its screening opinion by relying only on the fact that the land was already cultivated, thereby failing to appreciate that land which has been the subject of cultivation can still be semi-natural. That was an unfairly narrow reading of the reasons given in the screening opinion. As Richards LJ read the screening opinion, the point being made, albeit in a compressed way, was that the extent of existing cultivation (with a mixture of arable and turf production) was such that the land did not come within the description "uncultivated land or semi-natural areas" in paragraph 1(a) of Schedule 2 to the regulations. This revealed no legal error concerning the meaning of the expression.

The Court went on to find that in applying the expression to the facts, the council reached a rational conclusion. The Court saw see no difficulty whatsoever in the view that the application site, consisting as it did of actively managed farmland already in use for the production of soft fruit, arable crops and turf in rotation, was neither uncultivated land nor a semi-natural area. Even if there had been any doubt on the point, it would be difficult to brand as irrational a view reached on an issue of this kind by council officials familiar with the site and the surrounding area.


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