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

For a proposed agricultural project, the local planning authority must first construe the relevant EIA category and then decide whether its application to the facts is rationally open to it. The expression uncultivated land or semi-natural areas is inherently imprecise. Courts must avoid glosses and must not substitute their own primary assessment. Actively managed farmland may rationally be treated as neither uncultivated nor semi-natural. Environmental designations, including an AONB, may be relevant but are not determinative. A negative screening opinion need not itself contain reasons, but reasons supplied in it must enable an informed decision whether to challenge the opinion.

Wye Valley Action Association Ltd challenged by judicial review Herefordshire Council’s grant of planning permission for the continuing rotational erection, removal and re-erection of polytunnels on farmland within the Wye Valley AONB. The Council’s screening opinion concluded that the proposal was not a Schedule 2 project under paragraph 1(a) of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 and did not require an EIA.

The deputy High Court judge held that the Council had erred in law and quashed the planning permission: [2009] EWHC 3428 (Admin). The Council appealed. The Association alternatively argued that the reasons given for the screening opinion were inadequate. The central questions were whether the Council had misunderstood the statutory category, reached an irrational conclusion on its application, or failed to give adequate reasons.

Lord Justice Richards gave the leading judgment. Lady Justice Smith and Lord Justice Rix agreed. The appeal was allowed and the deputy judge’s order was set aside.

1. The local planning authority, not the court, is responsible for deciding whether proposed development is EIA development under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. The court’s role is supervisory. Following R (Goodman) v London Borough of Lewisham [2003] EWCA Civ 140 and the principle stated in R v Monopolies Commission, Ex parte South Yorkshire Transport Ltd [1993] 1 WLR 23, the court must distinguish between the legal meaning of the statutory expression and its application to the facts. Wednesbury has no role in determining meaning. At the application stage, intervention is justified only where the conclusion is outside the range open to a rational decision-maker.
2. The words uncultivated land or semi-natural areas in paragraph 1(a) of Schedule 2 are inherently imprecise. The court should avoid glosses or attempted redefinition. The guidance issued by the European Commission and Natural England was a useful aid. Semi-natural land may have experienced human intervention, and nature-conservation, landscape and archaeological value may be relevant. The main focus is whether the area reflects natural conditions and has intrinsic environmental value liable to be lost through agricultural intensification. There is nevertheless a fundamental contrast between semi-natural areas and land already subject to intensive cultivation.
3. The Council correctly understood the statutory expression. Its conclusion that actively managed farmland used for soft fruit, arable crops and turf in rotation was neither uncultivated land nor a semi-natural area was rational. The adjoining SAC and SSSI and Goodrich Castle could not determine whether the application site itself was semi-natural. Inclusion within the AONB was relevant but not determinative, since cultivated land does not become semi-natural merely because it lies within a landscape designation.
4. The further issue of whether the proposal involved intensive agricultural use did not arise. On reasons, R (Mellor) v Secretary of State for Communities and Local Government [2010] Env LR 2 established that a negative screening determination need not itself contain reasons, although interested parties must be able to obtain sufficient reasons in the decision or subsequently. The reasons given here stated the essence of the Council’s reasoning and enabled an informed challenge. The Council was not required to list every consideration, including the AONB.

• Court of Appeal (Civil Division): allowed the Council’s appeal and set aside the deputy High Court judge’s order: [2011] EWCA Civ 20.
• High Court of Justice, Administrative Court: allowed the judicial review, held that the Council had erred in law in its EIA screening decision, and quashed the planning permission: [2009] EWHC 3428 (Admin).