On 27 July 2012, the High Court handed down its judgment in R (Valley Action Group Ltd) v Bath and North East Somerset Council and another (2012) regarding whether a local authority was wrong when considering what constituted “development” under the Town and Country Planning Act 1990 and if the application did constitute development, whether it required an environmental impact assessment.
Development on the Site
Eight mobile poultry units, each of a considerable size, being twenty metres by six metres and three and a half metres high, were installed on agricultural land, with the ability to house 4000 ducks. The units could be towed if necessary as they had metal runners underneath them and could be dismantled if needed. As the site was within an Area of Outstanding Natural Beauty, it was subject to an Article 4 direction by the council which had specifically removed permitted development rights, including agricultural permitted development rights, under the Town and Country Planning (General Permitted Development) Order 1995 in order to further control development in the area. In May 2010, the council concluded that some of the activities on the site (for example, construction of the access road and water supply to the poultry units) were in breach of planning control. However, the council decided that as the units did not constitute “development”, no environmental impact assessment (EIA) was necessary and they could not take enforcement action. Later that year, a retrospective planning application was made for a pond and a screening opinion by the council concluded that an EIA was not required and planning permission was granted for the pond.
What Constitutes Development?
Section 55 of the 1990 Act provides that development is "the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land". The section also provides for what is not classed as development and allows the use of any land for the purposes of agriculture ... and the use for any of those purposes of any building occupied together with land used for such a purpose. The consequence of an activity being classed as development is that planning permission is required for the carrying out of any development of land under section 57 of the 1990 Act.
Judicial Review of the Council’s Decisions
An action group contended that the poultry units were in fact classed as development and further that an EIA was required before permission could rightfully be granted for the pond. The Secretary of State supported the action group’s position on both these points and consequently the court allowed judicial review of both the council’s decisions.
Was it development?
The court found that the council had adopted too narrow an approach to the definition of development when applying the test of size, permanence and degree of physical attachment derived from the case of Cardiff Rating Authority v Guest Keen Baldwin’s Iron and Steel Co Ltd (1949) and later considered in decisions such as Skerritts of Nottingham Limited v SSETR (2000). The court considered that the definition of "building" in section 336(1) of the 1990 Act is defined widely to include “any structure or erection” including structures which would not ordinarily be described as buildings. Barvis Ltd v Secretary of State for the Environment (1971) had held that a tower crane which was not permanently fixed to the floor and could be moved around a site was also a structure or erection and therefore a building. The units, although they could be moved, had not been and had no date by which they would be, which gave the units a significant degree of permanence in planning terms. Also cited in this case was the decision that an object may be classed as a building in planning law without ‘being incorporated into the land’ (R v Swansea City Council ex p Elitestone (1993)) which the poultry units were not.
There is an interesting distinction that was applied by the court, which stems from the case of R (A) v. London Borough of Croydon 2009, between an evaluative and objective analysis of whether something constitutes development. An evaluative analysis is for the decision maker, and not the court to answer and an objective analysis is something the court, as an adjudicator is to determine. The question of whether or not the units constitute development was held to be an evaluative one which should involve the exercise of the planning authority’s judgement.
Was an EIA required?
Under the EIA Regulations 1999 a council, when considering an application for planning permission, must decide whether the development "would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location". If no EIA is carried out when one should be then the planning permission is unlawful.
The court reviewed whether the units were capable of coming within the scope of the EIA Regulations 1999. Schedule 2 of the EIA Regulations 1999 defines categories of activities that will require EIA if they are likely to have significant effects on the environment and provides criteria for these. The criteria applied to intensive livestock installations to make them fall within schedule 2 are that they are not in a sensitive area and have a floorspace of over 500 square metres. The council held that the EIA Regulations 1999 did not apply as the units were within an Area of Outstanding Natural Beauty and floorspace is floorspace within a building and the units were not a building. The court held however that national law should be interpreted and applied so as to effect an EU Directive’s requirements. If it is not possible to interpret national law in order to comply with a directive then inconsistent national law has to be set aside.
Further to that, as the council had not taken into account the cumulative impact of the "development" when forming its scoping opinion in relation to the pond, as of course it did not consider that there was any development to take into account, it was also incorrect in deciding that there was no need for an EIA for the pond.
The case seems to follow the pattern of cases, such as those concerning polytunnels and marquees, that all large structures, whether moveable or not, if they are seen to have a degree of permanence to the land on which they sit will not escape the definition of development. Every case is a matter of fact and degree, but regardless of the fact that the council only has to undertake an evaluation, this decision on the council’s interpretation of development seems to indicate that a council would do well to cast its net wider and include more rather than less into its definition of development, if it is to escape challenge.
Flowing from that, of course if a council has wrongly considered the issue of whether something is classed as development, then it is likely to also consider that it does not fall within the scope of the EIA Regulations 1999 and not require an EIA. The court was of course correct in its reiteration that European law takes precedence over national law and that when any criteria applied by national law – those restricting the application of the regulations to intensive livestock installations not in sensitive areas for example - have the effect of taking something that seems obviously to be EIA development and so require an EIA, which is the purpose of the Directive, outside of the regulations, then they should not necessarily be applied to decide that no EIA is required. The Council should perhaps have been aware that if something smells like it should fall within EIA development then it will be easily argued in any challenge that it is indeed EIA development. The intentions of European law will always prevail and this case is a useful one to highlight that.
In a neat caution to councils when considering projects which on evaluation appear to be borderline, Mrs Justice Lang said: “In my judgment, the definition of“ development” in section 55 … can, and should, be interpreted broadly by planning authorities so as to include, wherever possible, projects which require EIA under the EIA Directive, or developments which require EIA under the EIA Regulations 1999.”