Valley Action Group Ltd, R (on the application of) v Bath and North East Somerset Council & Anor

Whether a structure is “development” under the Town and Country Planning Act 1990 is generally an evaluative planning judgment, but the planning authority must direct itself correctly in law. A structure may be a building even if it is mobile, detachable, or capable of being dismantled. Permanence is assessed by its significance in the planning context. The statutory concept of building operations is inclusive, and the residual category of other operations in, on, over or under land is broad.

The EIA regime must be interpreted consistently with the wide purpose of the EIA Directive. “Intensive livestock installations” are not limited to buildings. In a sensitive area, the floorspace threshold does not determine whether an installation falls within that category. Screening must consider cumulative effects with other relevant development or projects.

The claimant, a local action group, sought judicial review of two decisions by Bath and North East Somerset Council concerning agricultural activities at Meadow Farm, in an Area of Outstanding Natural Beauty and the Green Belt.

The first claim challenged the Council’s conclusion that mobile poultry units were not “development” under the Town and Country Planning Act 1990, and therefore did not require environmental impact assessment under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 or the EIA Directive.

The second claim challenged the screening opinion for a stock pond, on the ground that it failed to assess cumulative effects with the poultry units and other works. Both claims concerned whether the Council had correctly interpreted and applied the statutory and EIA regimes.

1. Poultry units. The Council’s decision was unlawful because it misdirected itself in applying section 55 of the Town and Country Planning Act 1990. The question whether the units constituted development was an evaluative planning question for the Council, subject to review on ordinary public law grounds, rather than a jurisdictional fact for the court to determine afresh.
2. The Council adopted too narrow an approach to “development”. Under section 336(1), “building” includes any structure or erection. A structure can be a building notwithstanding that it is mobile, unattached to the land, or capable of being dismantled and removed. The Council should have considered the units’ substantial size and weight, their construction and installation, and the significance of their continued presence on the site.
3. The threefold considerations of size, permanence and physical attachment had to be applied flexibly. Permanence meant sufficient duration or significance in the planning context. The ability to move units within a field did not remove the planning significance of their presence there, particularly where they might remain for years.
4. Section 55(1A) was inclusive rather than exhaustive. The works could fall within building operations under section 55(1A)(d). Alternatively, the residual category of “other operations in, on, over or under land” in section 55(1) was broad enough to encompass construction or installation of the units.
5. EIA scope. The poultry units were capable of being projects under article 1(2) of the EIA Directive and capable of constituting “intensive livestock installations” under Annex II, paragraph 1(e), despite their mobility and the absence of a minimum livestock threshold. The term was not confined to installations comprising buildings. The court expressed no concluded view on whether the units actually fell within that category.
6. The Council had failed to consider the EIA Directive and Regulations issues independently after deciding that the units were not development. National law had to be interpreted, so far as possible, in the light of the wording and purpose of the Directive. Section 55 was sufficiently broad to encompass projects requiring EIA.
7. Stock pond. Schedule 3 required consideration of cumulative effects with other relevant development or projects. The screening opinion considered cumulative traffic only and excluded the poultry units by relying on the earlier unlawful decision. It was therefore inadequate, and the grant of planning permission was unlawful.
8. Both judicial review claims were allowed. The Council was required to reconsider the poultry units and carry out a fresh screening opinion for the stock pond. The court reserved the form of relief for further submissions.

First-instance judicial review decision. Both claims were allowed.