Wye Valley Action Association Ltd, R (on the application of) v Herefordshire Council & Anor

In screening proposed development under the Town and Country Planning (Environmental Impact Assessment) Regulations 1999, the court must first determine whether the project falls within Schedule 1 or Schedule 2. The legal meaning of the statutory descriptions is for the court. At the second stage, the authority decides whether Schedule 2 development is likely to have significant environmental effects, subject to Wednesbury review. The expression semi-natural area has a broad meaning. Agricultural cultivation does not automatically exclude land from that category. A project which substantially increases agricultural productivity may be for intensive agricultural purposes. Failure to undertake the required assessment is an error of law requiring the planning permission to be quashed.

The claimant sought judicial review of Herefordshire Council’s grant of planning permission to EC Drummond & Son for rotating polytunnels at Homme Farm in the Wye Valley Area of Outstanding Natural Beauty. The Council had issued a screening opinion that the proposal was not Schedule 2 development and therefore did not require an environmental statement.

By the hearing, the challenge had narrowed to whether that screening opinion was lawful, particularly whether the proposal was a project for the use of a semi-natural area for intensive agricultural purposes under Schedule 2, paragraph 1(a) of the 1999 Regulations.

1. Claim allowed. The Council’s screening opinion and planning permission were quashed. The Council had made an error of law by concluding that the proposal was not Schedule 2 development.
2. The Regulations require a two-stage approach. At Stage A, the court determines the legal meaning of the descriptions in Schedule 2. If the language is sufficiently imprecise and the facts admit a range of rational conclusions, the authority retains a lawful range of judgment. At Stage B, where the project is within Schedule 2, the authority assesses whether significant environmental effects are likely. That is primarily a planning judgment reviewable on Wednesbury principles. The present case concerned Stage A.
3. The Environmental Impact Assessment Directive’s broad scope and purpose require a wide construction. The land was a semi-natural area as a matter of law. Its location within the Wye Valley AONB, adjacency to a Special Area of Conservation and Site of Special Scientific Interest, and relationship with a Scheduled Ancient Monument demonstrated significant environmental qualities. Existing cultivation was relevant but could not be determinative.
4. The polytunnel project was for intensive agricultural purposes. Its object was substantially to increase productivity and extend the period during which the land could be used for the crop. The 2006 Regulations and their explanatory material provided helpful context.
5. The Council had materially misdirected itself by treating existing cultivation as excluding the land from Schedule 2. It consequently failed to assess whether significant environmental effects were likely. Since no environmental impact assessment had been undertaken, substantial compliance could not cure the defect. The subsidiary reasons challenge therefore did not require determination.
6. The claimant was awarded its costs on the grounds which survived permission, subject to detailed assessment. Permission to appeal was refused.

First-instance judicial review. Permission to bring the claim was granted on a limited basis by Cranston J on 29 April 2009. The claim was allowed and the planning permission was quashed. Permission to appeal was refused.