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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Campaign To Protect Rural England, R (On the Application Of) v  EWHC 3458 (Admin) (18 December 2019)
Cite as:  EWHC 3458 (Admin)
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QUEEN'S BENCH DIVISION
B e f o r e :
| The Queen on the Application of Campaign To Protect Rural England
| - and -
| Herefordshire Council
- and –
Withers Fruit Farm Limited
Zack Simons (instructed by Thrings Solicitors) for the Interested Party
Hearing dates: 12th December 2019
Crown Copyright ©
Mr Justice Stuart-Smith:
i) Ground 1:
a) That members were wrongly advised that no weight could be attributed to a document, issued by the Defendant in June 2018 entitled "Polytunnels Planning Guide" ["the POPG"]; and
b) That the POPG created a procedural legitimate expectation that the processes in it would be followed in considering and determining any planning application for polytunnels and the Defendant breached that expectation in its conduct and determination of the Interested Party's application;
ii) Ground 3: the Officer's Report was flawed because it failed to direct the Planning Committee to:
a) The question whether the landscape was "valued" and whether paragraph 170 of NPPF was engaged;
b) The question of bats;
iii) Ground 4: the Defendant was guilty of procedural unfairness because certain documents were not published on the Defendant's website until 18 January 2019 and the Clerk to Ocle Pychard Parish Council did not receive any re-consultation notification in January despite the fact that the Defendant's website says the Parish Council was reconsulted on 15 January 2019.
"Role and purpose of planning guide
1.1 With the continued increase in the use of polytunnels for agricultural soft fruit production within the county, Herefordshire Council has prepared this planning guide to help potential developers prepare their planning applications. It will also provide useful information to officers of the council and other interested parties, local residents for example, on how the council expects the many planning considerations to be addressed within applications for planning permission.
1.2 The Polytunnels Planning Guide 2018 replaces and updates the Polytunnels Supplementary Planning Document (SPD) 2008 and prior to that, a previous voluntary code of practice. It will assist in clarifying which types of polytunnel development will require planning permission and highlight the planning policy issues and requirements such proposals will be expected to address. It will expand upon and provide more detailed planning guidance on a number of relevant, but non polytunnel-specific Core Strategy policies.
1.3 This polytunnels guide will provide invaluable planning advice, however it has not been though a formal public consultation process or sustainability appraisal and therefore cannot constitute a formal SPD."
"4.1 [Section 4] sets out in detail how the various planning issues previously outlined should be considered by the applicant at the pre-application stage and by the council once applications have been submitted.
4.2 Although there are often many planning issues that need to be considered when assessing the appropriateness of a polytunnel scheme, the two key issues which must be balanced are: economic benefits/impacts and landscape impacts. It is therefore these that are first discussed below, followed by a number of other planning considerations that must be fully addressed in order that all potential issues surrounding an application can be adequately considered. …"
"5.6 All applicants will be expected to fully address the landscape impacts of a polytunnel proposal, both individually and in the context of other similar developments within visual proximity of the proposal site.
5.7 A landscape impact assessment will be necessary for the vast majority of planning applications since it is the potential harm to the landscape of an area which is one of the key planning considerations in such schemes."
"Wider benefits to the rural or national economy
4.9 In addition to the commercial/business economic benefits of producing crops under tunnels, there may also be economic benefits to both the economy of the wider rural community and the agricultural economic prosperity of the country as a whole. It is those benefits to the local or national economy that are likely to carry the more weight in the determination of a planning application than those economic benefits to individual businesses. Therefore properly evidenced statements of such advantages should be an important component of any planning application.
Employment and the rural economy
4.10 The soft fruit industry is labour intensive compared to many other parts of the agricultural sector. Temporary staff are taken on to work on fruit farms where polytunnels extend the growing season and can be employed for longer parts of the year than was previously the case before the introduction of tunnel growing. Much of the labour used is temporary foreign labour. During harvesting, these seasonal workers are brought in to a growing area. At this time they make some contribution to the local economy by spending money in local shops and businesses and make use of local services, for example. In addition soft fruit enterprises will purchase goods and services from elsewhere both locally and in the UK, helping to support jobs in supplier companies.
Impact on local services.
4.11 The number of additional employees required to work on fruit farms has resulted in an increase in inward migration to rural areas. In some areas this has increased pressures on local services and infrastructure such as schools, police and doctors' surgeries. Conversely, it can be said that local services are better supported (buses, shops, pubs, schools etc.) and that such support is helping to keep these services alive in rural locations, where they have previously struggled to remain economically viable. The positive or negative influence of an increase in local populations, whether temporary or permanent, should be addressed as part of the assessment of the economic effects that polytunnel proposals may have on localities.
4.50 Policy SD3 of the Core Strategy provides guidance on the need to protect the availability and quality of water resources. Water is an essential resource, the pollution of which can have serious effects on drinking water supplies (including private water supplies) and ecology. Inappropriate agricultural activities can be a risk to both surface and groundwater quality and quantity. In particular, groundwater requires particular protection from both contamination and over-exploitation. The availability of groundwater can be affected by changes in land use such as the increased use of large-scale agricultural polytunnels, which may restrict recharge through increases in impervious surfaces or the diversion of flows. Groundwater forms part of the base flows of watercourses and is vital to ensure the dilution of discharges, maintenance of water supplies and biodiversity. Both water efficiency and water neutrality (betterment) are key elements of the Government's climate change (reduction) agenda.
4.51 Policy SD4 of the Core Strategy provides guidance to prospective developers in respect of targets to be achieved for water quality in Herefordshire's rivers. Herefordshire SuDS Handbook provides clarity on the treatment train that is required. There is considerable potential for farmers to capture and store surplus water for future use, thereby reducing the need to abstract water from other sources, while enhancing biodiversity. The water quality of Herefordshire's main rivers and their tributaries is of strategic importance and, in particular, high levels of nutrients along parts of the rivers need to be addressed. This is important to the overall environmental objectives of the Core Strategy.
4.52 The Environment Agency, in partnership with Natural England, has developed a Nutrient Management Plan to ensure that the River Wye Special Area of Conservation (SAC) achieves and maintains favourable conditions with respect to phosphate. A Nutrient Management Board was set up in 2015, with the principal objective of identifying and delivering action that result in the achievement of the phosphorous conservation target of the River Wye Special Area of Conservation. The primary mechanism for which is through the delivery of the Nutrient Management Plan.
4.53 In some parts of Herefordshire there are issues surrounding 'low flows' of local rivers (information is based on the Environment Agency's Catchment Abstraction Management Strategies (CAMS)), such as the potential loss of flora and fauna and changes in species distribution. Whilst many existing polytunnel businesses and applicants for new polytunnel planning permissions either already use or seek to use trickle irrigation methods, this form of irrigation is currently exempt from requiring an Environment Agency water abstraction licence. However, late in 2017, DEFRA and the Welsh government announced plans to end water abstraction licensing exemptions in England and Wales to allow regulators to manage water more effectively, following a consultation in 2016. Currently, exempt operators, primarily users of trickle irrigation for horticulture, will need to apply for a licence from 1st January 2018. It is expected that most, but not all, trickle irrigation users will be offered a licence if the abstraction is not thought to be environmentally unsustainable.
4.54 The Environment Agency does, however, seek detailed information on proposed water use and water management from prospective polytunnels developers, hence these are material considerations in determining whether or not to grant planning permission. This is particularly important in the context of both low flow problem areas and where there may be a potential detrimental impact on the water environment of SSSIs and SACs, as well as Special Protection Areas (SPAs) and Ramsar Sites (such as sedimentation, pollution or adverse impacts on biodiversity). In the case of SAC/SPA/Ramsar sites is may also be necessary for applications to include a Habitats Regulations Assessment (HRA) in line with the EC Habitats Directive (1992).
4.55 Planning applications for polytunnels on a significant scale (on sites of 1 hectare or more) should therefore detail the proposed water use in the context of the catchment area and water management techniques through the production of a detailed Water Resources Study/Audit. In cases where small scale polytunnels are not proposing to use water irrigation from low flow rivers or in areas away from SSSIs or SACs then a brief statement of water use and efficiency techniques could suffice. (For more information on Water Resources Studies and Audits see Section 5)."
5.11 Economic arguments as discussed in section 4 above are often technical ones and in order for the local planning authority to assess their validity and importance adequately, they must be set out in robust manner which is fully evidenced. To simply include in the information accompanying a planning application a set of broad statements will not be acceptable.
5.12 In instances where the polytunnels proposed are on a small scale, a simple business case may suffice. It is important to clarify requirements with a development management officer prior to the submission of a planning application. The more economic information that can be provided, the better the understanding of an applicant's business venture and associated business case, and its likely impact of [sic] the local economy. Appendix 1 provides some helpful background questions which an applicant is encouraged to answer:
5.13 A comprehensive economic impact assessment or appraisal should be submitted alongside proposals for large-scale polytunnel schemes. Again, it is essential to discuss the proposal with a development management officer prior to submission of an application."
"Flood risk assessments
5.17 In areas particularly prone to flooding and in respect of planning applications for larger polytunnel developments (sites of 1 hectare or more), the Environment Agency will be consulted. A Flood Risk Assessment may be necessary in accordance with the requirements of the NPPF, paragraph 103. Where such a Flood Risk Assessment is deemed necessary, it should be appropriate to the scale and nature of the development and should consider:
(a) flood risk and surface water run-off implications;
(b) any increase risk arising elsewhere;
(c) measures proposed to deal with these risks and effects, e.g. restricting run- off to the Greenfield rates;
(d) explaining what attenuation measures are in place designed to the 1% with climate change standard to prevent flood risk; and
(e) how the polytunnels are designed to prevent run-off and erosion issues."
"Water resources studies/audits
5.18 Planning applications for polytunnels on a significant scale (sites of 1 hectare or more) should detail the proposed water use in the context of the catchment area and water management techniques through the production of a detailed Water Resources Study/Audit. The Water Audit could include the identification of a number of water efficiency measures such as, for example;
- rainwater harvesting from water run-off from the polytunnels and/or re- circulation programmes, and
- the use of buffer zones around polytunnels to help prevent chemical leaching into streams and nearby watercourses.
5.19 This Water Audit will be looked at in detail by the Environment Agency, as part of the application for approval."
"Ecological appraisals/nature conservation assessments
5.21 A wildlife habitat survey carried out by a suitably qualified and experienced ecologist and at an appropriate time of year will be required where a proposal affects a site which is known to have, or is suspected to have, any species protected under the Wildlife and Countryside Act 1981, Conservation of Habitats and Species Regulations 2010 or the Protection of Badgers Act 1992. This will include badgers, bats, certain reptiles and breeding birds. Should habitats or species of significance be identified, further assessment will be required to determine the impact of the development on the wildlife and proposed mitigation to minimise the impact. Applications for the development in the countryside which affect sensitive areas which must be accompanied by ecological assessments and include proposals for long-term maintenance and management.
5.22 The following list should enable potential applicants to satisfy the expected level of detail required as part of a tunnel application:
- A records centre search and extended phase 1 habitat survey, conducted at an appropriate time of year and including an assessment of the presence of protected species and, or the potential of the habitats present to support protected species must be submitted with the application. This should include maps showing phase 1 habitats present, distribution of species and the location and type of existing and proposed polytunnels. Any potential impacts on these features should be identified (Note – information on badgers, if present, should be submitted in a separate confidential report.
- Further protected species surveys at an appropriate time of year will be required for any protected species that have potential to be present or have been found. Pre-application discussion with the county ecologist is recommended to ensure clarity in regard of survey and assessment requirements. A Natural England license is required for any development that would affect a European Protected Species. In addition to protected species, the presence of any priority habitats or species and LBAP habitats and species should also be identified along with any potential impacts.
- Any European sites such as Special Area of Conservation (SAC) or Special Protection Area (SPA) or nationally designated sites such as Sites of Specific Scientific Interest (SSSIs) within a minimum of 2km of the proposal should be identified, along with any potential impacts upon them. Natural England and the Environment Agency must be consulted as to the need for Habitat Regulations Assessment where a SAC or SPA may be affected. Any locally designated sites of wildlife or geological importance must be identified along with any impacts on them. The assessment must identify and describe potential development impacts likely to affect the species and, or their habitats identified (these should include direct and indirect effects both on-site and off-site during site preparation, construction and subsequent working practices). Where harm is likely, evidence must be submitted to show:
- How alternative designs or locations have been considered;
- How adverse effects will be avoided wherever possible;
- How unavoidable impacts will be mitigated or reduced;
- How impacts that cannot be avoided or mitigated will be compensated.
- In addition, in accordance with the local authority's duty under Section 40 of the Natural Environment and Rural Communities Act (2006) and the NPPF, section 11 proposals that will enhance, restore or add to biodiversity interests will be welcomed. This could include provision of bird and bat boxes/tubes as well as the planting of native species within landscaping schemes and restoration of habitats.
- The retention of existing trees, hedgerows and other biodiversity features on the site should be sought. A tree survey in accordance with BS5837:2012 Trees in relation to Construction may be required. Pre-application discussion with the county ecologists is recommended to ensure clarity in regard of survey and assessment requirements.
- Opportunities for creation of BAP habitats where appropriate.
- All proposals will require compliance with Herefordshire Council's Core Strategy policies for biodiversity and geodiversity (SS6 and LD2) and relevant government guidance."
i) The amenity of local residents as a result of traffic-noise and the behaviour of fruit-pickers;
ii) Water supplies from local boreholes and the impact of water abstraction on watercourses in the catchment of the River Lugg and River Wye;
iii) Protected species including bats;
iv) A "valued" landscape;
v) The absence of information evidencing benefits to the local economy.
Applicable legal principles
"Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another. In addition, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgement can only be challenged on the ground that it is irrational or perverse." Tesco Stores Ltd v Secretary of State for the Environment  1 WLR 759, 780 per Lord Hoffmann.
"In my view the NPPG has to be treated with considerable caution when the Court is asked to find that there has been a misinterpretation of planning policy set our therein, under para 18 of Tesco v Dundee. As is well known the NPPG is not consulted upon, unlike the NPPF and Development Plan policies. It is subject to no external scrutiny, again unlike the NPPF, let alone a Development Plan. It can, and sometimes does, change without any forewarning. The NPPG is not drafted for or by lawyers, and there is no public system for checking for inconsistencies or tensions between paragraphs. It is intended, as its name suggests, to be guidance not policy and it must therefore be considered by the Courts in that light. It will thus, in my view, rarely be amenable to the type of legal analysis by the Courts which the Supreme Court in Tesco v Dundee applied to the Development Policy there in issue. "
"The justification for [the principle that a public authority is bound by its undertakings] is primarily that, when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty."
"(4) The final category of legitimate expectation encompasses those cases in which it is held that a particular procedure, not otherwise required by law in the protection of an interest, must be followed consequent upon some specific promise or practice. Fairness requires that the public authority be held to it. The authority is bound by its assurance, whether expressly given by way of a promise or implied by way of established practice..."
Officers' Reports and Challenges to Planning Decisions
i) An Officer's Report must be read as a whole;
ii) The court must not apply excessive legalism, and Officers' Reports are written for councillors and planning officers not lawyers;
iii) Reports should not be read with undue vigour, but with reasonable benevolence;
iv) Those councillors and planning officers will have a high degree of local knowledge;
v) The functions of planning decision-making have been assigned by Parliament to local planning authorities and not judges;
vi) Matters of planning judgment are for the planning decision makers and not for the courts;
vii) Unless there is a distinct defect in the officer's advice which significantly or seriously misled the members in a material way on a matter bearing upon their decision, the court will not interfere.
Ground 1: failure to apply weight to the POPG or to act in accordance with a legitimate expectation arising from it.
"The Polytunnels Planning Guidance 2018 replaces and updates the Polytunnels Supplementary Planning Document (SPD) 2008 and prior to that, a previous voluntary code of practice. Its purpose is that it will assist in clarifying which types of polytunnel development will require planning permission and highlight the planning policy issues and requirements such proposals will be expected to address. It expands upon and provides more detailed planning guidance on a number of relevant, but non polytunnel-specific Core Strategy policies. This document provides some invaluable advice, but has not been though a formal public consultation process or sustainability appraisal and therefore cannot constitute a formal Supplementary Planning Document and cannot be attributed weight in the decision making process. It advises that the two key issues which must be balanced are identified as economic benefits/impacts and landscape impacts." [Emphasis added to identify criticised words.]
i) The advice that the POPG "cannot be attributed weight" because it was not a formal SPD document is wrong in law. In oral submissions the Claimant clarified its interpretation to be that "cannot attribute weight to the document" means "cannot attribute weight to the contents of the document";
ii) The POPG is a document to which weight can be attributed because it set out to provide useful information to officers of the council about how the Defendant expects planning considerations to be addressed in applications for permission for polytunnel developments; and to give useful information to other interested parties on how planning considerations would be addressed as a matter of practice.
i) The criticised comment goes only to weight, which is within the proper margin of appreciation for the decision maker: it says nothing about potential materiality as such;
ii) When the Report is viewed as a whole and without excessive legalism, it is clear that the Officer's Report was not saying that the contents of and issues raised by the POPG should be given no weight. To the contrary, it is obvious that the Officer did place weight on matters included in the POPG, the most obvious example being that the report concentrated at length on the issues identified in the very same paragraph of the POPG as "the two key issues", namely economic benefits and impacts on the one hand and landscape impacts on the other.
i) The main bulk of [6.14] of the Officer's Report, up to the words "Supplementary Planning Document" immediately before the criticised words "cannot be attributed weight in the decision making process", is an almost verbatim quotation of [1.2]-[1.3] of the POPG;
ii) In the course of that quotation, the Report makes clear the purpose of the POPG in terms which cannot be criticised and clearly imply that some of the contents of the POPG are matters that are at least relevant (and in that sense potentially material) to the preparation of applications and to identifying requirements that applications will be expected to address. However, it also makes clear (as does the POPG itself) that the document does not have the status of an SPD and has not been through the refining processes that would have been required to give it that formal status. It therefore characterises the POPG as "providing some invaluable advice";
iii) It is plain from the rest of the Officer's Report that the criticised passage does not mean that the contents of the POPG can be ignored and attributed no weight. This is clear from a number of references, of which the most obvious is the words immediately following the criticised passage. That sentence would be irrelevant and unnecessary if the POPG's advice about the key issues (which derives from [4.2] of the POPG) were automatically to be ignored as being attributed no weight. Other references are to be found in the Officer's Report at:
a) [2.5]-[2.6], which list the POPG and the NPPG as "other relevant guidance";
b) [6.17], which refers to the POPG's recognition that the Core Strategy's overall development strategy was produced in the light of the need to promote a diverse and strengthening rural economy, whilst protecting its quality landscape and making sustainable use of natural resources;
c) [6.29], which states that the POPG recognises that "the visual impact of polytunnels is often the most significant negative planning issue in connection with this type of development" at the commencement of the section of the report dealing with landscape and visual impact;
d) [6.30], which refers to the POPG acknowledging the importance of the landscape in more detail than set out at [5.3.7] of the Core Strategy;
e) [6.50], which refers to the POPG's "useful advice" about the impacts of tunnels on Public Rights of Way and, specifically, to Planning Guidance 16 in the POPG which stipulates minimum distances on either side of a Right of Way within which tunnels should not encroach;
f) [6.52], which refers to the distance of the seasonal workers' accommodation being further from a neighbouring property that the distances stipulated in the POPG as "necessary to ensure that the amenities of those living nearby are not detrimentally affected by noise and adverse visual impacts";
iv) The terms of [6.14] of the Officer's Report expressly state that the reason why the POPG is not an SPG and "cannot be attributed weight in the decision making process" is that it has not been through a formal public consultation process or sustainability appraisal. To give the document itself weight as if it had been through such a process would therefore not be justified: but it says nothing about the contents of the document which include, for example, direct references to the Core Strategy and potentially relevant Policies which may obviously be material for applicants, interested parties and the decision maker to consider where appropriate.
i) First, relying upon the statement in [4.9] that "properly evidenced statements of [economic benefits to the local or national economy] should be an important component of any planning application" and upon [5.11]-[5.13], which are set out above, the Claimant alleges that there were no "properly evidenced" statements (robust or otherwise) of the benefits of the scheme to the local and/or national economy;
ii) Second, relying upon [4.11], which states that "the positive or negative influence of an increase in local populations, whether temporary or permanent, should be addressed as part of the assessment of the economic effects that polytunnel proposals may have on localities", the Claimant alleges that there was no such discussion in the Officer's Report;
iii) Third, relying on [4.50]-[4.55] and [5.18]-[5.19], which I have set out above, the Claimant alleges that there was no Water Resources Study or Audit despite the fact that the Site falls within an impact risk zone for the River Wye SAC/River Lugg SSSI and that the Interested Party has not said where water will be sourced or in what quantities; and, separately, that the Environment Agency was not consulted;
iv) Fourth, relying on [5.21]-[5.22], which I have set out above, the Claimant alleges that the Defendant failed to require the Interested Party to carry out habitat surveys at appropriate times of the year to ascertain the presence of bats or great crested newts even though there was evidence to support a suspicion that they were present.
Paragraphs 4.9 and 5.11-5.13
Paragraphs 4.50-4.55 and 5.18-5.19
i) Specifically addressed CS Policies CS3 and CS4 and concluded that the application was compliant;
ii) Recognised that water availability is fundamental to the success of soft fruit businesses and that "therefore it is common for rainfall to be captures and recycled to ensure sufficient water is available for irrigation throughout the growing season";
iii) Identified that pumps were to be installed in the proposed attenuation ponds to transfer water to the reservoir for irrigation;
iv) Recorded the applicant's confirmation that the reservoir and attenuation ponds would be constructed prior to any polytunnels being installed and recommended a condition to that effect;
v) Confirmed that the Environment Agency had been consulted about the applicant's proposals for treated foul drainage and required a bespoke permit for that operation;
vi) Expressed the planning judgment that "the application has demonstrates [sic] that the scheme is capable of delivering sustainable water management throughout which will protect and enhance groundwater resources";
vii) Noted the observations of the Lugg Drainage Board and the conclusion of the Defendant's drainage consultant that the scheme "is, having regard to SD3 and SD5 of the CS and NPPF section 15 principally, … acceptable and capable of being approved subject to conditions."
Proposals do not include any felling of trees which potentially could support roosting bats. Inspection of the modern farm buildings at Highway Farm and the Lodge did not reveal any signs of bat occupation and therefore it is considered that the proposed development will not have a negative impact on roosting bats.
Foraging and commuting habitat may be enhanced by sympathetic management of the hedgerow network i.e. maintaining native hedgerows at a height that will provide sheltered conditions for foraging of their insect prey. Further habitat enhancements could include the provision of flower-rich plots to increase invertebrate populations and in turn food sources for foraging bats."
The report concluded that "the polytunnel development will not have an adverse impact on protected species. No BAP habitats will be lost on the site except for a section of species poor hedgerow at the entrance to Highway Farm, which will be replaced with a new species-rich native hedgerow."
i) An objection submitted on 11 July 2018 by a local resident who said that bats were present in the area and at Lower Castleton (some 600 m from the site) and who referred to a survey of bats and birds at Lower Castleton in 2016: it is not clear that the survey was included with the objection;
ii) An objection submitted on 19 July 2018 by a local resident who included that bats fed around Highway Farm and the surrounding areas;
iii) An objection submitted on 16 October 2018 by a local resident who included that there were 7 species of bats (and other wildlife) in the area and that monoculture would affect insects and lead to pathogen build up;
iv) A further letter of objection from the local resident who had previously objected on 11 July 2018. This letter was sent on 22 January 2019, the day before the committee meeting and attached a survey of bats at Monckton Farm (which is adjacent to the site) carried out in November 2018. The survey found evidence of "a smaller number" of roosting bats at Monckton Farm.
"6.68 Results from an extended phase 1 habitat survey are presented within the Ecological and Resource Protection Assessment and identify species within the vicinity from the record search and desktop study. The Councils Planning Ecologist has agreed with the findings of the reports in that the proposed development will not have an adverse impact on protected species and that no BAP habitats will be lost on the site except for the section of hedgerow at the entrance, however there is proposed landscaping through reinforcement and additional hedgerow planting which will outweigh this small loss.
6.69 Representations raised the issue of the presence of badgers in the locality. Legislation seeks to protect Badgers from harm and is therefore different to the way in which other species are protected in legislation. Officers have taken steps to aid protection by not disclosing the size and location of any potential setts into the public domain such as the website, as this provides information to persons that may wish or seek to cause them harm. This is best practice. Nonetheless, officers have fully considered the matter, and the applicant has also taken steps to address the issue. Officers have also raised the issue with Natural England, no objections are raised and an informative is suggested.
6.70 The ecological enhancement through the proposed landscaping is outlined in the LVIA and design and access statement. The Councils Ecologist has examined the submitted documents and raised no objection subject to a condition relating to a habitat protection and enhancement scheme which can be conditioned. I consider there is no conflict with policy LD2 of the CS and am satisfied that there has been detailed consideration to the natural environment to allow the scheme is capable of being delivered in compliance with polices LD2 and LD3 of the CS."
Conclusion on Ground 1
Ground 3: failure to take into account material considerations
i) First, the Claimant alleges that the Report failed to direct the Planning Committee to the landscape being a "valued landscape" within the meaning of  of the NPPF, which would have required heightened support to be given to the protection of the landscape;
ii) Second, the Claimant alleges that the report failed to deal with the question of bats, despite some objectors having raised it specifically. The Claimant alleges that the Interested Party should have been required to carry out surveys at appropriate times of the year.
Limb 1 – Valued landscape
"170. Planning policies and decisions should contribute to and enhance the natural and local environment by:
(a) protecting and enhancing valued landscapes, sites of biodiversity or geological value and soils (in a manner commensurate with their statutory status or identified quality in the development plan)"
"39. Paragraph 109 of the NPPF is a broad statement of national planning policy for the "natural and local environment". The introductory words declare what the "planning system" should do – that it "should contribute to and enhance the natural and local environment". The objective with which we are concerned is also expressed in general terms – "protecting and enhancing valued landscapes". The means by which the planning system is to achieve that objective are not stated. But the two ways in which it obviously might do so are plan-making and the determination of planning applications and appeals in accordance with the relevant provisions of the development plan (unless material considerations indicate otherwise). As Lord Clyde said in Alconbury (in paragraph 140 of his speech), "[national] planning guidance can be prepared and promulgated and that guidance will influence the local development plans and policies which the planning authorities will use in resolving their own local problems". This seems to me a good description of the policy in paragraph 109 of the NPPF. Dove J. recognized this.
40. In Lancashire, for minerals development, there are development plan policies that do what the "planning system" is encouraged to do by paragraph 109. They are Policy CS5 of the minerals core strategy and Policy DM2 of the minerals local plan. It is in those policies that the county council, as mineral planning authority, has provided for the protection and enhancement of the landscape in decision-making on proposals for minerals development, including a landscape that is locally "valued". If a scheme complies with those policies, as the inspector and the Secretary of State concluded here, it is difficult to see how it could be regarded as being in conflict with national policy in paragraph 109."
"6.3.15 None of the above indicators suggest that the local countryside should be treated as having high landscape value. Most of the indicators suggest that the local countryside is of value at a local level only, apart from perhaps the immediate setting of the Ocle Pychard Conservation Area to the east which may be of greater interest.
6.3.16 Taking account of the [GLVIA3] criteria … the local landscape in the immediate vicinity of the application site is assessed as having Local Level Value whilst the countryside in the immediate vicinity of the Ocle Pychard Conservation Area is assessed as being of Parish/Community Level Value."
i) The local resident who objected on 16 October 2018 submitted that the Ocle Pychard NDP showed that the residents of the area hold the landscape in very high regard. She submitted that "91 acres of polythene and 72 caravans" do not enhance and contribute to the attributes, assets and features of the area;
ii) An objection was lodged by Marches Planning and Property Consultancy acting on behalf of residents of Ocle Pychard Parish, which took issue with the assessment of the applicant's consultants. The central contention was that the proximity to the Ocle Pychard conservation area and the presence of the Three Choirs Way were factors that suggest the site is within a valued landscape which should be protected and enhance in accordance with paragraph 170(a) of NPPF.
The Officer's Report
"emphasises the importance planning policies and decision have in contributing and enhancing the natural and local environment. This is achieved by protecting and enhancing valued landscapes, sites of biodiversity or geological value and soils. …"
Conclusion on landscape impacts
"The Landscape Officer has given full consideration to the magnitude of the impacts of the whole of the development. The main impact would arise from the introduction of the polytunnel coverage themselves, however polytunnels and caravans are temporary in nature and can be removed from site without resulting in the loss of elements within the landscape, as Case Officer for the application I would agree with the Landscape Officer and conclude that the impact is not significant. Consideration has been given to the visual intrusion on existing residents, and whilst there is acknowledged to be degree of harm, the result would not to a degree whereby the properties would be regarded as 'unattractive and unsatisfactorily places to live', as suggested in the representation submitted on behalf of the Ocle Pychard residents. The proposed site does benefit from both a varied topography and extensive vegetative cover in particular along the watercourse. The orchard planting, some of which is already in place, will mitigate these views further once fully established and with planting within the framework of the site these identified effects could be mitigated further.
The Landscape Officer has outlined that the mitigation measures proposed in the LVIA are sufficient to offset any adverse impacts on landscape character and visual effects, with regards to both the Polytunnels and seasonal workers accommodation. There has been a considerable amount of local representations made with regards to landscape impact and all have been fully considered during officers assessments. However, whilst the development will be visible from the PROW's and a number of residential properties, enhancement and reinforcement of existing landscaping will mature over time and reduce the impact. Overall, officers would conclude, having regard to the above advice received and assessment above, that the proposals, with the appropriate mitigation secured by the conditions suggested, would comply with the requirements of policy LD1 and LD3 of the Herefordshire local Plan – Core Strategy, Policy OPG11 of the Ocle Pychard NDP and with the guidance contained within the NPPF."
Limb 2 - Bats
Ground 4: procedural unfairness
i) First, documents were only published on the Defendant's website on 18 January 2019, which was the Friday before the committee meeting on Wednesday 23 January 2019. It is alleged that this prejudiced neighbours who had no proper chance to review the Fruit Traffic Management Report and the amended Noise Management Plan; and it is alleged that the Clerk to Ocle Pychard Parish Council did not receive any re-consultation notification in the month of January 2019, though the Defendant's website says that the Parish Council was notified on 15 January;
ii) It is alleged that no statement of the economic benefits to the economy of the wider rural community and the agricultural prosperity of the country were disclosed, and that they should have been because they were supporting documents, it being apparent on the evidence that Mr Leeds, the driving force behind the Interested Party, submitted a document setting out the benefits both to the Interested Party and to the wider economy.
i) There is no legal requirement for the reports to be made available more than 5 days before the meeting. There was a requirement pursuant to s. 100B(3) of the Local Government Act 1972 for the Officer's Report to be available five days before, and it was. The OR referred to the reports which form the subject of the first limb of this complaint and they were available if anyone wished to read them. As a matter of fact the Interested Party submits that no prejudice was caused because representations were made about the new reports and, in any event, the concerns which might have been the subject of any response to the new reports were already (and forcefully) articulated;
ii) The Interested Party's economic need assessment was commercially confidential and was rightly withheld. In any event, the economic case was debated at length in the Officer's Report at [6.15]-[6.28] and in public at the committee meeting in the presence of the Claimant's representatives. There was therefore no prejudice.
Limb 1 – Late publication of reports
i) A Noise Management Plan dated December 2018, which was a revision of an earlier version dated November 2018; and
ii) A Fruit Traffic Management Statement dated December 2018, there having been no previous version of this document.
i) Ms Jones objected to the application on 19 July 2018, including objections based on traffic noise, specifically "the prediction of 2 lorries per day" which she regarded as "wholly optimistic" and referring to "2 lorries to take fruit away" and the installation of a blast chiller. She did not become aware of the Fruit Traffic Management Statement before the decision to grant permission was taken. She says that when she did become aware of it, she learned for the first time the extent that the Development would have on her home and place of business in terms of noise emissions. She refers specifically to the background noise of tractors and trailers going to the packhouse and of there being 2 articulated HGV collections of fruit from the cold store between 9am and 6pm and to her expectation that there will need to be deliveries of packaging, such as fruit boxes;
ii) Ms Pryce wrote two letters of objection. The first raised the issue of 360 seasonal workers making a lot of noise when outside and having football matches and disturbing nose levels from traffic, the chiller units and other machinery. The second raised the question of noise pollution from machinery and from the large number of workers living in close proximity to residents. She says she was not aware of the December 2018 Noise Management Plan or the Fruit Traffic Management Statement before the committee meeting as she did not check the website frequently but depended on friends and neighbours to tell her when new documents were posted. Had she been aware of them, she says she would have written a further letter of objection. Specifically, she says that her further objections would have included objections relating to outside music and the playing of football.
i) In the main text the only change was in [1.4] which added a reference to a plan to the existing text. This is of no consequence for the current issue;
ii) The details of the plan were set out in a table with columns for Source, Possible effects on Impact and Mitigation to Consider. Three changes were made:
a) In relation to Outside Music, the December version introduced a limitation that "No amplified music is allowed";
b) In relation to Outside Music, the November version had an entry for location, which stated "Football pitch and farm buildings only to minimise impact on Monkton residents", which was deleted in the December version;
c) In relation to Inside Music, the hours (7am -10pm only) and the stipulation "Keep volume to a sensible level, monitor feedback from neighbours and modify volume accordingly" remained unchanged, but an entry in the November version for Live Music, which said that it should be "as above. Advise neighbours of special event in advance", was deleted from the December version.
Viewed overall, the December 2018 plan did not raise any new issues that could have generated further objections of any great substance.
i) At [5.2] to the use of the existing farm buildings at Highway Farm to accommodate a blast chiller, cold store and loading bay where fruit would be stored for a short period before being transferred off site;
ii) At [5.3] to the provision of 72 caravans for 6 workers each;
iii) At [7.16] to the transport of fruit to the cold store and dispatch building by internal routes rather than on the public highway;
iv) At [8.12] to the daily transport of fruit from the cold store by articulated lorry, though the suggestion at that stage was that the fruit would be transported "once per day".
i) The late publication of the reports breached no formal time-limits;
ii) The content of the reports caused no prejudice to interested parties, having been very substantially foreshadowed and the subject of prior objections;
iii) The timing of the reports caused no prejudice as there was time for any interested person to respond if they wished to do so, bearing in mind the limited nature of any new information disclosed for the first time in the reports;
iv) This limb of Ground 4 fails.
Limb 2 – Economic information
"100D- Inspection of background papers.
(1) Subject, in the case of section 100C(1), to subsection (2) below [a time limit], if and so long as copies of the whole or part of a report for a meeting of a principal council are required by section 100B(1) or 100C(1) above to be open to inspection by members of the public–
(a) those copies shall each include a copy of a list, compiled by the proper officer, of the background papers for the report or the part of the report, and
(b) at least one copy of each of the documents included in that list shall also be open to inspection at the offices of the council. …
(3) Where a copy of any of the background papers for a report is required by subsection (1) above to be open to inspection by members of the public, the copy shall be taken for the purposes of this Part to be so open if arrangements exist for its production to members of the public as soon as is reasonably practicable after the making of a request to inspect the copy.
(4) Nothing in this section—
(a) requires any document which discloses exempt information to be included in the list referred to in subsection (1) above; or
(b) without prejudice to the generality of subsection (2) of section 100A above, requires or authorises the inclusion in the list of any document which, if open to inspection by the public, would disclose confidential information in breach of the obligation of confidence, within the meaning of that subsection.
(5) For the purposes of this section the background papers for a report are those documents relating to the subject matter of the report which—
(a) disclose any facts or matters on which, in the opinion of the proper officer, the report or an important part of the report is based, and
(b) have, in his opinion, been relied on to a material extent in preparing the report,
but do not include any published works."
"97.. Here the councillors were not better off than the objectors. […]
99.. Moreover, fairness in the planning process is not confined to a consideration of the interests of the objectors. It also needs to respect the confidentiality of the applicant […] it would be unfair to Arsenal FC for the local planning authority to be made to reveal what was handed to its advisers in confidence in the clear expectation that it would have a very carefully restricted circulation.
100.. A planning authority needs to be able to examine matters in a confidential manner with applicants, as was done here, and for that purpose to use independent consultants to whom disclosure of the relevant information is made in confidence. This is the same process that the GLA went through. If a local planning authority cannot do that, it will be hindered in its negotiations with developers over the content of publicly beneficial packages such as the extent of affordable housing and other legitimate benefits related to the value of the development and its funding. The public interest would be harmed."