2 Restrictions on Hedgerow Operations
12.200 If a hedgerow qualifies for protection, the landowner (or any utility operator) must first give notice to the local planning authority if they wish to remove or destroy all or part of the hedge.307 The local authority then has 42 days in which to consult the local parish or community council.
They can issue a hedgerow retention notice.308 If they do so it will then be a criminal offence to remove or damage the hedgerow in contravention of the notice.309 There are a number of exceptions, however, where works that damage a hedgerow may be permitted without engaging criminal liability.310 Some of the exceptions are broadly conceived. It is permissible, for example, to remove a section of hedgerow in order to make a new opening for access to land, in substitution for an existing access point, provided that the existing access is filled by the planting of a new hedge within eight months. It is also permissible to create a new access point to land by removing a section of hedgerow if no access is otherwise available, and to lop or trim trees and hedgerow growth if necessary to prevent obstruction of utility supplies (such as electricity wires) using powers in the relevant legislation to do so,311 or for public bodies (such as the Environment Agency) to do so in connection with the exercise of their land drainage or flood defence powers.12.201 A wide exception permits damage ‘for the proper management of the hedgerow’.312 In R. (Conwy County Borough Council) v Lloyd,313 it was held that the regulations permit the total removal of a hedge if that is required for its proper management. In that case, therefore, no offence was committed where 100 metres of ancient hedgerow was removed without permission, in circumstances where expert evidence was given for the defence to the effect that it was dangerous and liable to collapse.
This decision also exposed other flaws in the practical protection afforded by the 1997 Regulations – principally that failure to serve a hedgerow removal notice before carrying out work to remove all or part of a hedge is not in itself a criminal offence. As a result, if a hedgerow has been removed unilaterally by a landowner without prior notification to the local authority, the latter will have difficulty in assessing the status of the (former) hedgerow for the purposes of ascertaining whether it was ‘important’ and therefore protected. This will make it difficult to ground a prosecution for unlawful removal after the event, in cases where unilateral action to destroy a hedgerow has been taken without prior notice to the local authority.
1Town and Country Planning Act 1990, ss 55(1), 57.
2SI 2015/596. Sch 2, Part 6.
3See Town and Country Planning Act 1990, s 55(2)(e) and 55(1).
4Town and Country Planning Act 1990, ss 33 and 39 ibid.
5Town and Country Planning Act 1990, s 43(6)(b). Sparing use is made of this power.
6PPG 7 The Countryside – Environmental Quality and Economic and Social Development (1997) Annex B paras B1–B5.
7PPG 7 ibid, para 2.17.
8PPG 7 ibid, para 2.18.
9The text of PPS 7 is archived at the following link: http://webarchive.nationalarchives.gov.uk/20120919132719/www.communities.gov.uk/archived/publications/planningandbuilding/pps7. The policies on the use of the best quality agricultural land in grades 1, 2 and 3a formerly contained in PPG7 (and referred to above in notes 14–16) are set out in Paragraph 28 of PPS 7 (2004).
10National Planning Policy Framework (Dept for Communities and Local Government, 27 March 2012, ISBN 9781409834137). Available at: https://www.gov.uk/government/publications/national-planning-policy-framework-2.
11Town and Country Planning Act 1990, s 70(2).
12Planning and Compulsory Purchase Act 2004, ss 19(2), 38(6), 1990 Act, s 70(2).
13National Planning Policy Framework (2012) Paragraph 14.
14National Planning Policy Framework (2012) para 17.
15Securing the Future: delivering UK Sustainable Development Strategy (Dept for Environment Food and Rural Affairs, CM 6467, March 2005). See esp p 16 ff (‘guiding principles’). Available at: https://www.gov.uk/government/publications/securing-the-future-delivering-uk-sustainable-development-strategy.
16National Planning Policy Framework (2012) Paras 5 and 7.
17Ibid, para 28.
18Ibid, para 111.
19Nationl Planning Policy Framework (2012), Para 112.
20See Nationl Planning Policy Framework (2012), Para 55.
21Ibid, para 55. This guidance replaces with a much simpler and straightforward principle the more detailed guidance on farm cottages formerly contained in Annex A of PPS 7 (2004).
22As to which see Fawcett Properties v Buckinghamshire CC [1961] AC 636.
23See paras 16 and 17 of Annex A to PPS7 ibid.
24National Planning Policy Framework (2012), para 109.
25National Planning Policy Framework (2012), para 115.
26Ibid, para 116.
27Council Directive 1992/43/EEC on the conservation of natural habitats and of wild fauna and flora [1992] OJ L206/7.
28SI 2010/490, reg 39.
29See Art 10 of Directive 1992/43/EEC.
30National Planning Policy Framework (2012) Para 117.
31Ibid, para 112.
32National Planning Policy Framework (2012), para 118.
33‘Where an adverse impact on the site’s notified special interest feature is likely, an exception should only be made where the benefits of the development, at this site, clearly outweigh both the impacts that it is likely to have on the features that make the site of special scientific interest and any broader impacts on the national network of SSSIs’: ibid, para 118.
34Town and Country Planning Act 1990, s 55(1).
35Section 55(1A) ibid, added by Planning and Compensation Act 1991, s 13.
36See for example, R (on the application of Save Woolley Valley Action Group Ltd) v Bath and North East Somerset Council [2012] EWHC 2161 (Admin) (Lang J), considered further below.
37(1988) 56 P & CR 286, CA.
38‘What the local authority are entitled to look at is the whole of the area which was used for a particular purpose including any part of that area whose use was incidental to, or ancillary to, the achievement of that purpose’: G Percy Trentham Ltd v Gloucestershire CC [1966] 1 WLR 506, 513 (Diplock LJ).
39See Allen v Secretary of State and Reigate and Banstead BC [1990] JPL 340 (material change of use requiring planning permission found where only 8% of plants and shrubs sold from a farm shop were not grown on the premises).
40[2006] EWHC 3482 (Admin).
41[2000] 2 PLR 102; [2000] JPL 1025.
42[2000] JPL 1025, 1034.
43Section 55 (2)(e), considered below.
44For permitted development rights and the GDO see below para 12.49 ff.
45Section 55(1), ibid.
46R (on the application of Save Woolley Valley Action Group) v Bath and North East Somerset Council [2012] EWHC 2161 (Admin), para 106 (Lang J).
47Now transposed by the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (SI 2011/1824).
48R (on the application of SAVE Britain’s Heritage) v Secretary of State for Communities and Local Government [2011] EWCA Civ 334.
49See para 12.117 ff.
50See Parkes v Secretary of State for the Environment (1979) 1 All ER 211.
51That is, ‘operations likely to damage the conservation interest’ notified to the landowner with the site notification, and requiring the consent of the statutory conservation body before they can lawfully be carried out: s 28 of the Wildlife and Countrywide Act 1981 as amended. And see Chapter 13 below.
52Sweet v Secretary of State (1989) JPL 245.
53McKellan v Minister of Housing and Local Government (1966) 198 EG 683.
54Town and Country Planning Act 1990, s 55(1).
55For example R (on the application of Save Woolley Valley Action Group) v Bath and North East Somerset Council [2012] EWHC 2161 (Admin) above note 47.
56Restormel Borough Council v Secretary of State for the Environment [1982] JPL 785.
57Wealden District Council v Secretary of State for the Environment (1988) 56 P & CR 286, CA.
58G Percy Trentham v Gloucestershire County Council [1961] 1 WLR 506, CA.
59See (1994) JPL 768 (Ministerial planning decision).
60See Crowborough Parish Council v Secretary of State for the Environment [1981] JPL 281.
61See JL Engineering Ltd v Secretary of State and Warrington DC (1994) JPL 453.The court here extended the principle established in Young v Secretary of State (1983) 47 P&CR 165 and White v Secretary of State (1989) 2PLR 29.
62In JL Engineering v Secretary of State (above n 29) a pre-1947 industrial use on the site was supplanted by 15 years of exclusive agricultural use of the land between 1973 and 1988. It was here held that planning permission was needed for the creation of vehicle hard standing and industrial storage post 1988, as the original industrial user had been completely supplanted by the agricultural use of the land in the intervening period.
63See Allen v Secretary of State and Reigate and Banstead BC (1990) JPL 340.
64Warnock v Secretary of State for the Environment [1980] JPL 590.
65Williams v Minister of Housing and Local Government (1967) 18 P & CR 514.
66Williams v Minister of Local Government and Housing (1967) 18 P&CR at 518 per Widgery J.
67(1990) JPL 340.
68See (1993) JPL 187 (Ministerial planning decision).
69Hertfordshire County Council v Secretary of State for Communities and Local Government [2012] EWCA Civ 1473 (see Pill LJ at paras 9–11).
70But note that an intensification of the use for agriculture of semi natural areas or uncultivated land can, in some circumstances, require prior consent from natural England and an environmental impact assessment – see further para 12.159 ff below.
71[2014] EWCA Civ 241.
72G Percy Trentham Ltd v Gloucestershire CC (1966) 1 WLR 506 at 513 per Diplock LJ.
73Williams v Minister of Housing and Local Government (1967) 18 P&CR 514.
74Cf. Pitman v Secretary of State for the Environment [1988] JPL 391; Birmingham Corp v Minister of Housing and Local Government [1964] 1 QB 178; James v Minister of Housing and Local Government [1966] 3 All ER 964.
75(1988) JPL 391.
76See Birmingham Corporation v Minister of Housing and Local Government [1964] 1 QB 164; and James v Minister of Housing and Local Government [1967] 1 WLR 171.
77See North Warwickshire Borough Council v Secretary of State for the Environment (1980) 50 P & CR 47.
78See arguendo North Warwickshire Borough Council v Secretary of State for the Environment ibid.
79See Sch 1 to the Agricultural Holdings Act 1986 and Chapter 5 para 5.96 above.
80See s 1 of the Rent (Agriculture) Act 1976, and further Chapter 11 above.
81For more detailed discussion see Chapters 5 and 11 above.
82Hemens v Whitsbury Farm and Stud Ltd [1988] 1 All ER 72, HL.
83Ibid, at 77 h–j and 78 a–c per Lord Keith.
84See Jones v Bateman (1974) 232 EG 1392, CA; Wallace v Perth and Kinross Assessor 1975 SLT 118 and Cresswell v British Oxygen Co Ltd [1980] 3 All ER 443, CA. And see generally Howarth [1987] JPEL 484.
85As to which see Chapter 11 above.
86Lord Glendyne v Rapley [1978] 1 WLR 601, CA; Earl of Normanton v Giles (1978) 248 EG 869; Forth Stud v East Lothian Assessor [1969] RA 35, 46.
87Hemens v Whitsbury Farm and Stud Ltd [1988] 1 All ER 72, HL.
88North Warwickshire Borough Council v Secretary of State for the Environment (1983) 50 P & CR 47.
89See Sykes v Secretary of State for the Environment [1981] 1 WLR 1092.
90McClinton v McFall (1974) 232 EG 707, CA.
91Belmont Farm Ltd v Minister of Housing and Local Government (1962) 13 P & CR 417.
92(1990) JPL 340.
93See (1993) JPL 187 (Ministerial planning decision).
94See Ch 5 para 5.12 ff above.
95Para 12.71 below.
96See Williams v Minister of Housing and Local Government (1967) 18 P&CR 514, Allen v Secretary of State (1990) JPL 340, discussed above paras 12.31, 12.32.
97See Chapter 7 para 7.57 ff above.
98See per Lord Cross in Rugby Joint Water Board v Foottit [1972] 1 All ER 1057.
99See Agricultural Holdings Act 1986, s 25(2)(b), Ch 7 para 7.13.
100Accepted arguendo in Fowler v Secretary of State [1993] JPL 365, John v George [1996] 1 EGLR 7 CA.
101[1993] JPL 365.
102[1993] JPL 365 at 368.
103[1996] 1 EGLR 7 CA.
104The planning consents were not expressed to be linked. Had implementation of either been made conditional upon implementation of the other the litigation in this case would have been unnecessary.
105The Court of Appeal eschewed a narrow analysis of the categories of estoppel and applied the broad principles laid down in Taylor Fashions Ltd v Liverpool Victoria Trustees (1982) 1 QB 133.
106[1996] 1 EGLR 7 per Morritt LJ.
107SI 2015/596.
108SI 1995/418.
109See below para 12.117 ff.
110SI 2010/490.
111Town and Country Planning (General Permitted Development) (England) Order 2015. SI 2015/596 (in force 15 April 2015). The 1995 Order continues to apply in Wales.
112SI 2015/595.
113Directive 92/43/EEC, see Ch 13 para 13.64 ff.
114See SI 2010/490, regs 73–76.
115For permitted development rights uder Sch 2, Part 3, Classes Q and S see below para 12.109 ff.
116For a full discussion see above para 12.39 ff.
117Agriculture Act 1947, s 109, previously allowed the Minister of Agriculture to designate additional land as ‘agricultural land’ even though its current user was not agricultural; this facility is no longer available.
118James v Stockport MBC (1984) 50 P&CR 299 CA; Tewkesbury District Council v Smith (1989) PAD 204.
119See Customs and Excise Commrs v Fisher [1981] 2 All ER 147; South Oxfordshire DC v Secretary of State for the Environment [1987] 56 P&CR 112.
120See Rolls v Miller (1881-5) per Lord Lindley ; ‘[business] means almost anything which is an occupation, as distinguished from a pleasure – anything which is an occupation or duty which requires attention is a business’.
121[1978] AC 359 HL.
122[1989] 1 WLR 1392 HL, decided under the Town and Country Planning General Development Order 1977.
123[1954] 2 QB 171.
124See SI 2015/596, Sch 2, Part 6, Case D.
125RJ Williams Le Roi v Secretary of State [1993] JPL 1033 (dispute as to whether 1977 or 1988 GDO applied, a material consideration as different area rules applied under each of the predecessors to the 1995 Order).
126[1989] 1 WLR 1392, affirming [1988] 57 P&CR 140, CA.
127See Jones v Metropolitan Borough of Stockport (1984) 50 P&CR 299 and Fayrewood v Secretary of State for the Environment (1984) JPL 267.
128[1984] 50 P&CR 299.
129[1987] 56 P&CR 84.
130Cotswold DC v Secretary of State [1993] JPL 1026 (windbreak held not to be a building for the purposes of the GDO).
131See (1994) JPL 1136 (ministerial planning decision).
132[1987] JPL 868.
133[1984] JPL 503.
134[1962] 13 P&CR 417.
135See Cotswold DC v Secretary of State [1993] JPL 1026 (Inspectors decision quashed because, having decided a windbreak was not a fence, he should then have considered whether it was a building. This is material because the 465-metre rule only applies if the structure is capable of characterisation as a building, and not otherwise. A windbreak, as here, is clearly not a structure erected for the purpose of accommodating livestock etc – the other situation in which the rule applies).
136See Fayrewood Fish Farms Ltd v Secretary of State for the Environment (1984) JPL 267.
137General Permitted Development Order 2015, SI 2015/59, Art 3(6).
138Cf Northavon DC v Secretary of State for the Environment (1981) JPL 114; Bilboe v Secretary of State for the Environment (1980) 39 P&CR 495.
139See [1994] JPL 768 (ministerial planning decision).
140Town and Country Planning General Development (Amendment) (No 2) Order 1991, SI 1991/2268.
141Para 12.93 above.
142Introduced by the Town and Country Planning (General Permitted Development) (Amendment and Consequential Provisions) (England) Order 2014, SI 2014/564 (in force 6 April 2014). The order only applies to England (reg 1(2) ibid). The provisions are now to be found in the 2015 GDO Sch 3 Classes Q, R and S, described below.
143The Town and Country Planning (Use Classes) Order 1987, SI 1987/764 as amended.
144GDO, Schedule 2, Part 3, Class Q.1 ((b), (c)).
145GDO, Schedule 2, Part 3, Class Q.1 ((k)–(m).
146Ibid Class Q.1(f).
147Ibid, Part 3, Class Q.2(1).
148Ibid, Class Q.2(2), (3).
149See ibid, Part 3, Class S.1 (a)–(d).
150Ibid, Part 3, Class S.1(e).
151Ibid, Part 3, Class S.2(c).
152Ibid, Part 3, Class S.2(d).
153Town and Country Planning (Use Classes) Order 1987, SI 1987/764 as amended.
154See ibid, Part 3, Class R.3(2),(3).
155See Sch 2, Part 6, Class A.1 (b), and Class B.2(2)(d).
156Council Directive 85/337/EEC on the assessment of certain private and public projects on the environment, [1985] OJ L175/40.
157By the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988, SI 1988/1199. The Regulations currently applicable in England and Wales are the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, SI 2011/1824: and see DETR Circular 02/1999, ‘Environmental Impact Assessment’. The Regulations currently in force in Scotland are the Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2011, SSI 2011/139.
158Directive 2011/92/EU of the Council and the European Parliament on the assessment of the effects of certain private and public projects on the environment, [2011] OJ L26/1. The 2011 Directive consolidated amendments to the original EIA Directive (Council Directive 85/337/EEC, [1985] OJ L175/40) and made by: Directive 97/11/EC, [1997] OJ L73/5; Directive 2003/35/EC, [2003] OJ L156/17; and Directive 2009/31/EC, [2009] OJ L140/114. The Directive has most recently been amended by Directive 2014/52/EU of the European Parliament and of the Council, [2014] OJ L 124/1. The 2011 consolidated text of the EIA Directive (as amended by Directive 2014/52/EU) will be referred to hereafter as ‘the EIA Directive’.
159See Art 5 and Annex IV to Directive 2011/92/EU.
160Annex I, para 17 ibid. The Directive applies thresholds calculated by reference to the number of places for livestock provided by each facility: see further below para 12.124 ff.
161Art 4.2 and Annex III ibid.
162DETR Circular 2/99 ‘Environmental Impact Assessment’. The thresholds are set out in Annex A of the Circular. This guidance is now available online at: planningguidance.communities.gov/blog/guidance/environmental-impact-assessment/.
163Directive 2003/35/EC of the European Parliament and the Council providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to participation and access to justice Directives 85/337EEC and 96/61/EEC, OJ 2003 L156 p 17.
164See Articles 6.2–6.5 of Directive 2011/92/EU.
165By Council Directive 1997/11 /EC, [1997] OJ L73/5.
166Including intensive livestock installations, which had previously been within Annex 2 and only subject to EIA if member states considered the potentially impact to be significant.
167SI 2011/1824.
168Ie, in planning guidance in Circular 2/99 ‘Environmental Impact Assessment’; planning guidance available at planningguidance.communities.gov (above para 12.119, n 3).
169SI 2006/2522. See further para 12.159 below.
170DETR Circular 2/99 Environmental Impact assessment, Welsh Office Circular 11/99; now available online, see para 12.119, n 3. The Guidance is indicative only – there may be a case for EIA if the thresholds are not exceeded in an individual case, if there are special circumstances. Each case must be considered on its merits.
171SI 2011/1824, Sch 2, para 13.
172SI 2011/1824, reg 3(2).
173Reg 2(1), ibid.
174Reg 21, ibid.
175Reg 4(3), ibid.
176R (Goodman) v London Borough of Lewisham (‘Big Yellow’) [2003] Env LR 28; R (on the application of Mouring) v West Berkshire Council [2014] EWHC 203 (local authority failed to carry out the exercise that was essential in considering a warehouse development which fell within the scope of the Town and Country Planning (EIA) Regulations 1999. The local authority should have appreciated that the development was capable at least of falling within Sch 2 to the Regulations and thus required an EIA).
177See R (Jones) v Mansfield District Council [2003] EWCA Civ 1408.
178Reg 5(1) and (2), ibid.
179Reg 5(3), ibid.
180Reg 4(6), ibid.
181R v Secretary of State for the Department of the Environment Transport and the Regions ex part Marson [1998] 3 PLR 90. This decision was given under the 1988 regulations. The effect of the decision was arguably to abrogate the principle that planning permission should not be considered in EIA cases without the consideration of all relevant environmental information. It would also made it difficult for third parties to challenge the decision on judicial review, as members of the public would not have access to a written statement of the reasons for the decision on which to base any challenge and evaluate (for example) whether irrelevant considerations influenced the decision or whether it is based on an error of law. The revised EIA Directive now has stricter provisos as to publicity in Art 9, although until Mellor (below note 161) it was unclear whether these still fell short of requiring that the reason for the preliminary screening decision be published. And see Richardson v North Yorkshire County Council and Secretary of State [2003] EWCA Civ 1860 (failure to give adequate reasons for the planning decision after an EIA has been carried out does not render the decision to grant planning permission ultra vires and void. It goes instead to the need to make information about the decision, validly made, available to the public).
182R (on the application of Mellor) v Secretary of State for Communities and Local Government [2009] EWCA (Civ) 1201, Case C-75/08.
183R (Bateman) v South Cambridgeshire DC [2011] EWCA Civ 157; [2011] NPC 22.
184R (on the application of Cooperative Group Ltd) v Northumberland CC [2010] EWHC 373; R (Jones) v Mansfield DC [2003] EWCA Civ 1408 was applied.
185See, eg R (on the application of SAVE Britain’s Heritage) v Secretary of State for Communities and Local Government [2011] EWCA Civ 334; and R (on the application of Save Woolley Valley Action Group) v Bath and North East Somerset Council [2012] EWHC 2161 (Admin).
186[2012] EWCA Civ 869, paras. 26-30; and see R (on the application of Evans) v Secretary of State, Bamburgh District Council and Persimmon Homes Ltd [2013] EWCA Civ 115, paras. 21 and 22 (Beatson LJ).
187Reg 4(1), ibid.
188Sch 1, para 17, ibid.
189See DETR Circular 2/99 ‘Environmental Impact Assessment’ at para 33 and planningguidance. communities.gov (above at para 12.119).
190See planningguidance.communities.gov (above at para 12.119).
191SI 2006/2522.
192See para 12.159 ff below.
193[2006] EWHC 3482 (Admin).
194[2009] EWHC 3428 (Admin), [2010] Env LR 18; [2011] EWCA Civ 20.
195[2012] EWHC 2161 (Admin) (Lang J).
196See para 12.21 ff.
197[2009] EWHC 3428 (Admin), [2010] Env LR 18; [2011] EWCA Civ 20.
198[2011] EWCA Civ 20.
199In this case, Sch 2, para 1(a) to the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, SI 1999/293 (now the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, SI 2011/1824).
200[2012] EWHC 2161 (Admin) (Lang J.).
201Ie the Town and Country Planning (Environmental Impact Assessment) Regulations 1999, SI 1999/293 (now the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, SI 2011/1824).
202[2012] EWHC 2161 (Admin) para 113.
203See below para 12.158.
204Circular 2/1999, Annex A para A3; planningguidance.communities.gov (above at para 12.119).
205SI 2011/1824, Sch 2, para 2, Table 1.
206Circular 2/1999, Annex A, para A4; planningguidance.communities.gov (above at para 12.119).
207Ibid, Annex A, para A5; planningguidance.communities.gov (above at para 12.119).
208Ibid, Annex A, para A6; planningguidance.communities.gov (above at para 12.119).
209SI 2011/1824, Sch 2, para 2, Table para 3(i).
210Circular 2/1999, Annex A, para A15; planningguidance.communities.gov (above at para 12.119).
211See Annex A, para A33 and 34 ibid.; SI 2011/1824, Sch 2, para 12.
212Or Secretary of State eg where an application is called in.
213SI 2011/1824, reg 4(5).
214See reg 2(1) ibid (definition of ‘the consultation bodies’). The statutory consultees will be those specified in Art 10 of the Town and Country Planning (General Development Procedure) Order 1995, plus (if not included by reason of the 1995 Order) in every case the Environment Agency, Natural England, Nature Scottish Natural Heritage or Natural Resources Wales (as relevant) and the principal council for the area where the development is geographically situated (if not the planning authority).
215Reg 13 ibid.
216See regs 13 and 14 ibid.
217Reg 12(4) ibid.
218SI 2011/1824, reg 10.
219Reg 10(4) ibid. The applicant’s request must include a plan to identify the land, a brief description of the nature and purpose of the development and its possible environmental effects, and ‘such other information or representations as the person making the request may wish to provide or make’ (reg 10(2) ibid).
220Reg 20(1) ibid.
221See Town and Country Planning Act 1990, s 25.
222Reg 17 SI 2011/1824.
223Reg 3 ibid.
224Reg 19 ibid.
225Reg 21 ibid.
226By the Town and Country Planning (Environmental Assessment and Unauthorised Development) Regulations 1995, SI 1995/2258.
227SI 2015/596.
228Ie Circular 2/199 ‘Environmental Impact Assessment’; and see planningguidance. communities.gov (see above para 12.119, n 3).
229Reg 5 SI 2011/1824.
230Reg 5(6) ibid.
231Town and Country Planning (General Permitted Development) (England) Order 2015, SI 2015/596.
232SI 2006/2522.
233SI 2001/3966.
234SI 2006/2522.
235SI 2006/2522, reg 3.
236Reg 2, ibid.
237The thresholds are set out in SI 2006/2522, Sch 1, and are explained more fully below.
238Reg 6, ibid.
239Reg 5 and Sch 1 ibid.
240Natural England, ‘Environmental Impact Assessment (Agriculture) (England) (No 2) Regulations 2006: Public Guidance’ (NE311) para 33.
241D.L. Jackson, (2000) Guidance on the Interpretation of the Biodiversity Broad Habitat Classification (Terrestrial and Freshwater Types): Definitions and the Relationship with Other Classifications, JNCC Report 307.
242Natural England, ‘Environmental Impact Assessment (Agriculture) (England) (No 2) Regulations 2006: Public Guidance’ (NE311) para 35–7 and Table at 9.
243See Directive 2011/92/EU as amended, Art 4.3 and Annex III. Concerns as to the scope of the screening criteria applied to agricultural projects were expressed in the review of the operation of the 2001 regulations undertaken for English Nature in 2004: The Effectiveness of Environmental Impact Assessment (EIA) for Uncultivated Land and Semi Natural Areas, English Nature Research Report 605 (2004) para 3.1.1 and para 4.1.4. The wording of Art 4.3 of the Directive is unambiguous: ‘Where a case by case examination is carried out or threshold or criteria are set [for screening applications] the relevant selection criteria set out in Annex III shall be taken into account’ (emphasis added).
244Natural England, ‘Environmental Impact Assessment (Agriculture) (England) (No 2) Regulations 2006: Public Guidance’ (NE311) Table at 9.
245EIA Agriculture Regulations, (above para 12.159) reg 2(1)(g).
246Natural England, ‘Environmental Impact Assessment (Agriculture) (England) (No 2) Regulations 2006: Public Guidance’ (NE311) para 32.
247See the Town and Country Planning (General Permitted Development) Order 1995, SI 1995/418, Sch 2, Part 6 (Agricultural Buildings and Operations).
248See The Effectiveness of Environmental Impact Assessment (EIA) for Uncultivated Land and Semi Natural Areas, English Nature Research Report 605 (2004) para 3.1.2.
249See Natural England, ‘Environmental Impact Assessment (Agriculture) (England) (No 2) Regulations 2006: Public Guidance’ (NE311) paras. 46–49
250Reg 2 ibid., italics added.
251[2005] EWHC 808.
252Brooke LJ at [2005] EWHC 808, judgment para 27.
253See reg 5(7) ibid.
254As to which see Chapter 13 para 13.163 below.
255See reg 3(2) ibid.
256Reg 17 ibid.
257Reg 4 ibid.
258See reg 22 ibid.
259Reg 8(1) ibid.
260Reg 9 ibid.
261Regs 8(5) and (6) ibid.
262Reg 8(4).
263See reg 10.
264Sch 3, para 3.
265Sch 3, para 5.
266Reg 12(1) ibid.
267Reg 12(5) ibid.
268Reg 16 ibid.
269Reg 16(3) ibid.
270Reg 19 ibid.
271Reg 33(9) ibid.
272Reg 35(2) ibid.
273Reg 22 ibid.
274Reg 25 ibid.
275Reg 23 ibid.
276Reg 27 ibid.
277Reg 22 ibid.
278Reg 29 ibid.
279Town and Country Planning Act 1990, s 198(1).
280Town and Country Planning (Scotland) Act 1997, s 160(1), et seq.
281Town and Country Planning Act 1990, s 198(6).
282SI 2012/605.
283Town and Country Planning (Tree Preservation) (England) Regulations 2012, SI 2012/605, reg 5.
284See ibid regs 8, 10 and 11.
285Reg 12 ibid.
286See Bullock v Secretary of State for the Environment (1980) 40 P&CR 246.
287[2009] EWHC 220 Admin.
288See (2009) EWHC 220 Admin, judgment at para 42.
2892012 Regulations, regs 16 and 17 ibid.
290See 2012 Regulations, reg 14 ibid.
291Guidance on the management of trees subject to TPOs is given in Tree Preservation Orders: A Guide to the Law and Good Practice (2000) Department of Communities and Local Government, (available at http://www.communities.gov.uk/documents/planningandbuilding/pdf/tposguide.pdf.
2921990 Act, s 210.
2931990 Act, s 210(3).
2941990 Act, s 206.
2951990 Act, s 207.
2962012 Regulations, reg 24.
297See ibid, reg 24(2)–(4).
298Planning (Listed Buildings and Conservation Areas) Act 1990, s 69(1).
299Town and Country Planning Act 1990, s 211(3).
3001990 Act, s 211(4).
3011990 Act s 213.
302Guidance on the management of trees in Conservation Areas is given in Chapter 9 of Tree Preservation Orders: A Guide to the Law and Good Practice (2000) Department of Communities and Local Government, (available at http://www.communities.gov.uk/documents/planningandbuilding/pdf/tposguide.pdf).
303SI 1997/1160.
304Ibid, reg 4(1).
3051997 Regulations, Sch 1, para 7; for these purposes Sch 3 lists 56 species of woody tree.
306Ibid, Sch 2, lists 57 woodland plant species for this purpose.
3071997 Regulations, reg 5. The form of the notice is contained in Sch 4 to the 1997 Regulations.
308Ibid, reg 5(2).
309Ibid, reg 7.
310See ibid, reg 6.
311See Electricity Act 1989, Sch 4.
3121997 Regulations, reg 6(1)(j).
313[2003] EWHC 264 (Admin).