BW Farms Limited, R (on the application of) v Secretary of State for Levelling Up, Housing and Communities

At the screening stage, the decision-maker must assess the development as changed or extended and, where appropriate, the project as a whole. That includes direct, indirect and cumulative environmental effects. The assessment is not confined to the operational works described in the planning application.

The precautionary principle applies. Where available information leaves a material uncertainty about significant environmental effects, the decision-maker may be unable reasonably to conclude that no such effects are likely. A formal baseline analysis is not a mandatory screening-stage requirement, although the decision-maker may consider baseline evidence. The court reviews the screening judgment on Wednesbury grounds and requires intelligible reasons showing that the environmental effects were properly considered.

BW Farms Limited sought judicial review of a screening direction made by the Secretary of State under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017. The direction concluded that proposed internal alterations to existing livestock buildings, including slatted floors and ridge-mounted ventilation, constituted EIA development.

The claimant argued that the Secretary of State had wrongly treated the proposal as a change in agricultural use, failed to adopt the correct environmental baseline, and gave inadequate reasons. The central issues were whether the screening exercise had to be confined to the operational works, whether cumulative and indirect effects could be considered, and whether the reasons were legally adequate.

1. Claim dismissed. The screening direction disclosed no error of law.
2. The proposal fell within paragraph 13(b)(i) of column 1 of Schedule 2 to the Town and Country Planning (Environmental Impact Assessment) Regulations 2017, concerning a change to already authorised or executed intensive livestock development. The relevant question was whether the development as changed or extended might have significant adverse environmental effects.
3. For screening purposes, the decision-maker had to consider the overall project and the whole development as modified. That permitted consideration of direct and indirect effects, including slurry spreading and waste management, together with cumulative effects from other development. The approach could not be distinguished from Squire merely because the proposal concerned alterations to an existing livestock unit.
4. The Secretary of State was required to consider relevant Schedule 3 criteria and to apply the precautionary principle. In light of conflicting technical evidence and Natural England’s view that cumulative assessment was required, it was open to him to conclude that significant effects could not be ruled out conclusively.
5. A baseline analysis is not identified as a mandatory screening-stage consideration. It is a discretionary matter which may be considered where the decision-maker considers it appropriate. The Secretary of State did consider baseline evidence but reasonably concluded that there was no reliable environmental baseline, given the period of inactivity and conflicting evidence about possible pig rearing on a solid floor.
6. The alleged factual error concerning whether the buildings became vacant in 2018 or 2019 was not established on the material before the decision-maker and was immaterial to the reasoning. The requirements for relief based on mistake of fact were therefore not met.
7. The reasons were adequate. The documents enabled an interested reader to understand that the Secretary of State had considered the principal environmental issues, including odour, ammonia, waste management and cumulative effects. No substantial prejudice arose from the absence of further explanation of the Schedule 2 classification.

First-instance judicial review. Permission to proceed was granted by Lang J on 17 July 2023. The High Court dismissed the claim.