Palmer, R (on the application of) v Davenport (t/a Foxley Estate) & Ors

An environmental statement may satisfy the statutory precondition even though it contains inaccuracies, omissions or insufficient detail. Such deficiencies ordinarily fall to be considered as part of the planning merits, informed by consultation responses, rather than by reopening whether the document qualifies as an environmental statement. Possible minor variations which enlarge an already identified environmental effect do not necessarily require a further assessment. The authority’s evaluation is ordinarily a matter of planning judgment, reviewable only on conventional public law grounds. Under section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990, considerable importance and weight must be given to avoiding harm to a listed building or its setting, but the degree of harm remains a planning judgment and may be outweighed by development benefits.

The claimant sought judicial review of Herefordshire Council’s grant of planning permission for four poultry broiler units near his holiday-lettings business and the listed Flag Station. The challenge concerned the adequacy of the environmental statement and drainage mitigation, non-disclosure of the council’s drainage report, manure-spreading effects, heritage impacts, landscaping conditions, the claimant’s business concerns and the agricultural classification of the site.

The court considered whether the council had lawfully completed the environmental assessment process, taken material considerations into account, complied with its statutory heritage duty and adopted rational reasons for granting permission subject to conditions.

1. Environmental statement and drainage. The submitted document plainly addressed the principal surface-water flooding issue and was properly treated as an environmental statement. Under R(Blewett) v Derbyshire CC [2003] EWHC 2775 (Admin), an environmental statement need not contain perfect or complete information. Deficiencies identified through consultation are generally matters for the planning merits, not jurisdiction to grant permission.

2. The alleged additional silos, parking, access, tanks and LPG storage concerned possible minor enlargements of an effect already assessed, or possible changes requiring further approval. The council was entitled to conclude that the existing attenuation arrangements and conditions adequately controlled the risk. Its assessment was not irrational. Hereford Waste Watchers Ltd v Herefordshire Council [2005] EWHC 191 (Admin) was distinguishable because that case concerned a significant environmental effect which the authority had identified but postponed assessing through a condition.

3. The undisclosed drainage report caused no material prejudice. It identified no new issue and substantially endorsed the developer’s drainage proposals. Applying R(Champion) v North Norfolk DC and others [2015] UKSC 52, the disclosure defect could not justify quashing the permission without a real possibility of a different outcome.

4. The council lawfully considered manure spreading, odour and pollution. The conclusions that the effects were acceptable and could be regulated through planning conditions and environmental permitting were planning judgments open to it.

5. The duty under section 66(1) required considerable importance and weight to be given to the desirability of preserving the listed building or its setting. As explained through East Northamptonshire DC v Secretary of State for Communities and Local Government [2014] EWCA Civ 137 and R (Forge Field Society and others) v Sevenoaks DC [2014] EWHC (Admin), that duty did not make every degree of harm decisive. The nature and degree of harm, its effect on the asset’s significance and the balance against development benefits remained matters of planning judgment.

6. The remaining grounds failed. Public fears may be material without objective support, but need not be accepted as justified or determinative. The claim was dismissed and permission to amend to add ground 2A was refused.

The judgment was a first-instance decision of the Administrative Court on an application for judicial review. It records that an earlier similar planning permission had previously been quashed by consent for procedural irregularity.