Squire, R (On the Application Of) v Shropshire Council

An environmental impact assessment for development producing substantial quantities of manure must meaningfully assess the likely indirect effects of odour and dust from its storage and spreading. General observations about agricultural practice, a future management plan of limited scope, and reliance on environmental permitting cannot replace that assessment.

An environmental permit requiring an operator to take appropriate measures in disposing of manure can govern the operator’s arrangements for removal, transport and any spreading undertaken by that operator. It does not directly regulate a third party’s storage or spreading on separate land. Planning authorities may assume that pollution-control regimes will operate effectively, but must identify any regulatory gap relevant to likely significant environmental effects.

The appellant sought judicial review of planning permission for an intensive poultry-rearing facility expected to produce about 2,322 tonnes of manure annually. Much of the manure would be stored and spread on agricultural land, including unidentified land owned by third parties. She contended that the council had misunderstood the reach of the environmental permit and had failed adequately to assess resulting odour and dust.

A deputy High Court judge dismissed the claim in [2018] EWHC 1730 (Admin). He concluded that the permit could control off-site manure management and that the environmental information was adequate.

The appeal concerned the proper construction of the permit and whether the environmental impact assessment lawfully assessed the indirect effects of storing and spreading manure.

1. Appeal allowed. The environmental impact assessment was incomplete and unlawful. Its unlawfulness vitiated the grant of planning permission, which was to be quashed.

2. The environmental permit had to be construed objectively from its language and full context. Condition 2.3.5 required the operator to take appropriate measures in disposing of manure outside the permit-site boundary so as to prevent or minimise pollution. This extended to arrangements for removal and transport, proper records and, where the operator undertook spreading, arrangements for that operation. It did not impose obligations directly upon third parties or place their activities on their own land under the Environment Agency’s control. The possibility of enforcement, suspension and criminal prosecution reinforced the need for an objectively ascertainable limit to the operator’s responsibility.

3. The planning officer inaccurately understood the Environment Agency’s proposed manure management plan. The plan would concern the operator’s own land and principally the risks to groundwater, surface water and soil. It gave no assurance that odour and dust would be controlled on either that land or unidentified third-party land.

4. The environmental statement contained no meaningful assessment of odour and dust arising from the storage and spreading of manure. It neither identified the third-party land nor assessed the scale, location, proximity to dwellings or likely effectiveness of mitigation. The future manure management plan was not a substitute because it did not yet exist and would not cover third-party land.

5. The general comments of the Public Protection Officer and planning officer did not cure the deficiency. They were not founded on a coherent assessment of the particular disposal arrangements and did not consciously supply the assessment missing from the environmental statement. The environmental information therefore failed to comply with the EIA regime’s requirement to assess the project’s direct and indirect environmental effects before permission was granted.

6. A later planning obligation under section 106 of the Town and Country Planning Act 1990 did not remedy the absent assessment. It was not highly likely that the council’s decision would have been substantially the same had the legal error not occurred. Relief was therefore not withheld under section 31(2A) of the Senior Courts Act 1981.

1. Court of Appeal (Civil Division): In [2019] EWCA Civ 888, the court unanimously allowed the appeal and held that the unlawful environmental impact assessment vitiated the planning permission.
2. High Court, Administrative Court, Planning Court: In [2018] EWHC 1730 (Admin), a deputy High Court judge dismissed the judicial review claim, holding that the environmental permit could control off-site manure management and that the environmental information was adequate.