3 Town and country planning: development rights

2.09 The use of land or buildings for agriculture has largely been outside the development control under the Town and Country Planning legislation since its inception in 1947. This policy is reflected in the Town and Country Planning Act 1990, s 55(2)(e) of which exempts from the definition of ‘development’ the use of land or buildings for agriculture, or a change of use to agricultural use.

2.10 The long-standing exemption of agricultural operations from planning control has been controversial, and a greater measure of control has been introduced on some categories of agricultural development in recent years, largely as a result of the need to implement EU Environmental Directives within UK domestic planning law. So, for example, a degree of environmental control has now been introduced as a consequence of the implementation of the EU’s Environment Assessment Directive.¹⁶ This directs Member States to ensure, before consent to certain types of development is given, that projects likely to have a ‘significant’ effect on the environment are made subject to an assessment of their environmental effects.

2.11 The principal transposing measures implementing the EU Directive in England and Wales are now the Town and Country Planning (Environmental Impact Assessment) Regulations 2011.¹⁷ This subjects planning applications for certain kinds of agricultural operation, such as poultry or pig rearing, to the requirement of environmental assessment. The developer will, in cases where EIA applies, be required to submit an Environmental Statement with his application for planning permission, giving details of the likely effects of the proposed operation on the physical and human environment. Not all applications identified in Schedule 2 of the 2011 Regulations as ‘likely’ to have a significant effect on the environment will require an environmental assessment. Local planning bodies must screen applications to identify those operations that will be likely to have a ‘significant’ effect on the environment by reference to the criteria of location, size and nature established in the Directive and the 2011 implementing regulations. Only those agricultural operations or developments that are found, after screening, to be likely to have a ‘significant’ effect on the environment will be subject to an environmental impact assessment under the 2011 Regulations. The Department for Communities and Local Government publishes policy guidance to local authorities on the operation of thresholds established in the regulations for identifying the ‘significance’ of environmental effects for this purpose.¹⁸ The policy guidance indicates that in most cases EIA will only be required for operations of considerable size, such as the installation of large-scale poultry and pig rearing facilities, and new drainage works.

2.12 The UK’s implementation of the EIA Directive initially omitted to require an assessment for projects to restructure land holdings and to intensify agricultural land use on semi natural habitats. These are agricultural activities and operations that are outside the planning system in England and Wales altogether. The intensification of an existing agricultural land use, for example, is not ‘development’, and does not require planning permission – whatever the nature or location of the farmland on which it is carried out.¹⁹ This omission was rectified in 2006 by the introduction of bespoke EIA Agriculture regulations, applying environmental assessment to proposals to (i) restructure rural land holdings and (ii) to carry out projects to convert semi natural areas to intensive agricultural use.²⁰ These measures are administered in England by Natural England, and by Natural Resources Wales in Wales, and are discussed in more detail in Chapter 12 below.²¹