4 Projects subject to Environmental Impact Assessment
(a) Schedule 1 projects (Mandatory EIA)
12.134 The only agricultural developments that come under Sch 1, and therefore require EIA in all cases before planning permission can be granted, are installations for the intensive rearing of pigs or poultry.
The 1999 regulations provide188 that EIA will be required for all installations for the intensive rearing of pigs or poultry with more than(i)85000 places for broilers or 60000 places for hens, or
(ii)3000 places for the production pigs (of over 30kg in weight), or
(iii)900 places for sows.
(b) Schedule 2 Projects – The Indicative Thresholds
12.135 Ministerial guidance indicates that in the Secretary of State’s view, environmental assessment will normally be needed for Sch 2 projects in three types of case only:
(i)For major projects of more than local importance,
(ii)Occasionally, for projects on a smaller scale which are proposed for sensitive or vulnerable locations, and
(iii)In a small number of cases, for projects of unusually complex and potentially adverse environmental effect, where expert and detailed analysis of those effects would be desirable, and relevant to the issue of principle as to whether or not the development should be permitted.189
12.136 The right hand column of Sch 2 to the 2011 EIA regulations sets out basic indicative thresholds and criteria as a guideline to when EIA will be applicable to new categories in eth categories specified. Additionally DETR Circular 2/1999 gives more detailed guidance and information for the purpose of guiding local planning authorities when identifying Sch 2 projects that will require EIA.190
12.137 Agricultural operations which are specified in Sch 2, and which may therefore require the carrying out of an EIA before development consent can be given, include the following:
(a) Converting Uncultivated Land or Semi Natural Areas to Intensive Agriculture
12.138 Projects for the use of uncultivated land or land in semi natural areas for intensive agricultural purposes (for example the erection of greenhouses or livestock buildings) will not normally require EIA unless the area of the development covers more than 5 hectares.
Several recent decisions have illustrated the potential scope of this category, which is somewhat wider than might otherwise have been thought. As many agricultural land uses do not require planning consent, they will outwith the 2011 regulations. Operations in this category which do not require planning permission will, however, be caught instead by the Environmental Impact Assessment (Agriculture) (England) (No 2) Regulations 2006,191 which create a parallel consent procedure operated by Natural England for non – planning cases. This is discussed below.192 The potential for some categories of uncultivated land project to be caught by planning law, with the potential for the requirement of an EIA before planning permission can be granted, has been illustrated in three recent decisions: R (on the application of Hall Hunter Partnership) v Secretary of State;193 R (on the application of Wye Valley Action Association Ltd) v Herefordshire District Council;194 and R (on the application of Save Woolley Valley Action Group Ltd) v Bath and North East Somerset Council.19512.139 The Hall Hunter case was considered above196 in the context of the definition of ‘development’ requiring planning permission. The court gave a wide interpretation to ‘building operations’ to include the erection of polytunnels, but was not asked to consider the additional implication that if within development control, such development might also be subject to a requirement to carry out an EIA before development consent can be given. The potential for this additional requirement to come into play was subsequently considered in R (on the application of Wye Valley Action Association Ltd) v Herefordshire District Council.197
12.140 In the Wye Valley Action Association case a farmer applied for planning permission for polytunnels covering 255 hectares of land, of which no more than 54 hectares would be covered at any one time, and not more than 10 hectares in a single bloc.
The whole of the site was in open countryside and within the Wye Valley Area of Outstanding Natural Beauty. It was adjacent to the River Wye Special Area of Conservation and a Site of Special Scientific Interest. Herefordshire District Council adopted a screening opinion in 2008 that ‘the application involves the rotation of polytunnels for the purpose of growing soft fruit in the ground and on land that is already cultivated… therefore the application will not require an environmental statement to be submitted’. This was held to be a material misdirection at first instance, and the grant of planning permission was initially quashed by the High Court. The key finding was that land can be a ‘semi-natural area’ whether it has been previously cultivated or not – the assumption by the planning authority that land could not be a semi-natural area simply because it was already under cultivation was held to be a misdirection on a point of law by the authority.12.141 The Court of Appeal reversed this decision.198 Richards LJ accepted that the terminology used in the relevant planning regulations199 (‘semi-natural areas’) was inherently imprecise and invited different conclusions when applied to the facts of different cases. The planning committee retained a discretion as to the interpretation of the facts when deciding the first order question – whether the development was within Sch 2 or not – and on which different planning authorities might legitimately, and rationally, adopt different conclusions. The court would not review this decision, which must be made on the merits of each case.
12.142 The third decision is R (on the application of Save Woolley Valley Action Group Ltd) v Bath and North East Somerset Council200 The High Court held that the installation of eight mobile poultry ‘sheds’ on metal skids was an intensive livestock installation, and that its situation in the Cotswold Area of Outstanding Natural Beauty meant that it was potentially Sch 2 EIA Development.
The Council had initially decided that the mobile poultry sheds were not ‘development’ and that they did not therefore have to address the question whether they were ‘EIA Development’ within the meaning of the EIA Directive or transposing regulations.201 The court ruled, however, that the interpretative matrix to be applied in cases requiring a consideration of the application of EIA must be the opposite: if an operation was within the EIA Directive, this must be considered first; and then, if the EIA Directive was engaged, English law must be interpreted so as to give effect to the Directive where possible:202‘...The definition of development in section 55 TCPA 1990 can, and should, be interpreted broadly by planning authorities so as to include, where possible, projects which require EIA under the EIA Directive or developments which require EIA under the EIA Regulations 1999. Otherwise the Directive will not be effectively implemented in UK law’.
12.143 It followed that ‘development’ must be construed broadly in order to secure the effective implementation of the EIA Directive and that, whether or not the sheds were ‘buildings’; they could be considered livestock installations. The fact that the holding concerned was within an Area of Outstanding Natural Beauty meant that it was in a sensitive area and therefore the Sch 2 thresholds were not applicable. It could be EIA development even if the floor area of the sheds combined did not exceed the indicative threshold of 500 square metres.
12.144 It should be noted, finally, that although many kinds of new building benefit from permitted development rights under the GDO, these are removed where an EIA would otherwise be required.203 Some categories of farm building, such as intensive livestock buildings or intensive horticultural facilities, may therefore require EIA under this heading if they are built on previously uncultivated land and cover an area of more than 5 hectares – or a lesser area if the impacts will be sufficiently significant.
(b) Water Management Projects
12.145 Water management projects for agriculture, including irrigation and land drainage projects, will normally only require EIA if the development would result in permanent changes in the character of more than 5 hectares of land.204 In particular, regard should be had to whether the development would have damaging wider impacts on hydrology and surrounding ecosystems. Most routine water management projects undertaken by farmers would not normally be expected to require an EIA.
(c) Intensive Livestock Installations
12.146 The provision of intensive livestock installations for pigs and poultry is covered by Sch 1, and will require EIA in all cases if the thresholds there set are to be exceeded eg if places are to be provided for more than 900 sows. Other intensive livestock installations come within Sch 2, and will require EIA if they are likely to have a significant effect on the environment. This would apply, for example, to units for housing livestock other than pigs and poultry, and to pig and poultry units which are below the thresholds for mandatory EIA set in Sch 1 but which nevertheless have potentially significant effects on the environment. Development of this kind is Sch 2 development if the area of new floor space to be provided exceeds 500 square metres.205 Where this is the case, the relevant indicative thresholds indicate that EIA would be more likely to be required if an intensive livestock installation is designed to house more than 750 sows, 2000 fattening pigs, 60000 broilers or 50000 layers, turkeys or other poultry.206 Planners are directed that the significance of the potential impacts will often depend upon the level of odours emitted by the installation, increased traffic and the arrangements for waste handling.
(d) Intensive Fish Farming
12.147 Planning guidance indicates that EIA will be more likely to be required if an installation for intensive fish farming is designed to produce more than 100 tonnes (dead weight) of fish a year.207 The key factors for consideration in coming to a decision whether and EIA is required will be any likely wider impacts on hydrology and ecology, as well as the physical impacts and scale of the development itself.
(e) Reclamation of Land from the Sea
12.148 Much development involving the reclamation of land from the sea will require EIA before planning permission can be given. EIA is more likely to be required where the work proposed is on a site that exceeds one hectare in extent. When assessing the significance of the development, planners are directed to have regard to the likely wider impacts on natural coastal processes beyond the site itself as well as the scale of the reclamation work involved208.
12.149 Several other categories of Sch 2 development may be relevant in an agricultural context, eg where farm diversification is proposed:
(f) Wind Power
12.150 Installations for the harnessing of wind power for energy generation may require an EIA if the development involves the installation of more than 2 turbines or the hub height of any turbine or other structure involved exceeds 15 metres.209 EIA is more likely to be required for commercial developments of 5 or more turbines or more than 5 MW of new generating capacity.210
(g) Tourism and Leisure Facilities
12.151 Holiday villages and associated developments may require EIA if the area of the development exceeds 0.5 hectares. Permanent campsites and caravan sites will not normally require EIA unless the development exceeds 1 hectare in area. Planning guidance indicates that EIA is more likely to be required for permanent campsites and caravan sites with more than 200 pitches. Similarly golf courses and associated developments (such as driving ranges), which are commonly involved in farm diversification, will not normally require EIA unless the area of the development exceeds 1 hectare.211 New 18-hole golf course will normally require EIA, and the potential impacts to be considered her will include the increased traffic that will be generated following the development, and the effects on eh surrounding landscape ecosystems and hydrology.
(h) General Considerations in Screening Planning Applications
12.152 It must be appreciated that the indicative thresholds set out in Sch 2 and explained in the relevant Ministerial Circular are merely guidelines. As explained above, whether an EIA will be required, in an individual case, will depend in each case upon whether the planned development will have ‘significant’ environmental effects. The planning authority212 must also have regard, when screening applications for EIA, to the criteria set out in Sch 3 to the 2011 regulations.213 These direct them to have regard to a number of factors related to the characteristics of the development, its location and the characteristics of its potential impact. Characteristics of the development, which will be relevant, include its size, the use of natural resources envisaged, the production of waste and pollution and nuisances, as well as the risk of accidents having regard to the technologies and substances to be used in its construction. The environmental sensitivity of the geographical areas likely to be affected by the development must be considered, having regard to a number of specific factors – these include existing land uses, the abundance and regenerative capacity of natural resources in the area, and the absorption capacity of the natural environment (paying particular attention to wetland areas, coastal zones, mountain areas and nature reserves, natural parks and designated wildlife sites such as SSSIs). Regard must also be given to the characteristics of the potential impacts themselves eg the geographic area and size of the affected population, the magnitude and probability of the likely impacts and their duration frequency and reversibility.