“likely to have significant effects on the environment by virtue of factors such as its nature, size and location.”
“Pollution and nuisance - the operation, if poorly managed, has the potentialto cause smell and ground water contamination nuisance locally. The application proposes a system of operation and management which minimises both these aspects. A similar scheme, albeit smaller, is in operation at Dinton and no complaints have been received by the Council. It is not considered that the additional scale of development proposed is likely to increase the potential for this type of impact. Given the scale of the proposal and the operating method proposed, no substantive impact has been identified.”
“Characteristics of Potential Impact Extent of impact - it is considered that the proposal, if not operated as proposed in the application, would have the potential to cause intermittent local smell impacts beyond the site boundary. However, there is no evidence to suggest that the operating system proposed would cause any such substantive impacts.”
“The site is not in an environmentally sensitive location as defined by the regulations, nor is the location environmentally sensitive within the ordinary meaning of these words; the proposal includes full details of an operating system to control and manage pollution nuisance from smell and ground water contamination. Traffic levels resulting from the proposal are very low and the visual impacts of the buildings would be limited and would be mitigated against. The relevant issues have been addressed in the submitted application. “It is considered that no environmental impact assessment should be sought.”
“An EIA is required ‘unless the specific project excluded could, on the basis of a comprehensive assessment, be regarded as not being likely to have such effects’ [significant effects on the environment].”
“Prospective remedial measures may have been put before him (the Secretary of State) whose nature, availability and effectiveness are already plainly established and plainly uncontroversial; though I should have thought there is little likelihood of such a state of affairs in relation to a development of any complexity. But if prospective remedial measures are not plainly established and not plainly uncontroversial, then as it seems to me the case calls for an EIA.”
“The directly enforceable right of the citizen which is accorded by the Directive is not merely a right to a fully informed decision on the substantive issue. It must have been adopted on an appropriate basis and that requires the inclusive and democratic procedure prescribed by the Directive in which the public, however misguided or wrongheaded its views may be, is given an opportunity to express its opinion on the environmental issues. In a later case Zuid-Holland [1996] ECR 1-5403, 5427 para 70) Advocate General Elmer made this point again: ‘Where a member state’s implementation of the Directive is such that projects which are likely to have significant effects on the environment are not made the subject of an environmental impact assessment, the citizen is prevented from exercising his right to be heard’.” ‘Where a member state’s implementation of the Directive is such that projects which are likely to have significant effects on the environment are not made the subject of an environmental impact assessment, the citizen is prevented from exercising his right to be heard’.”
“I conclude from that case [the reference is to Catt] and Bellingham v Gillespie that the planning authority are entitled to take remedial measures into account in determining whether the proposal is likely to have significant effects. If they are satisfied that the remedial measures mitigate any potential adverse effects upon the environment, such that there are no significant effects [that is the judge’s emphasis] their decision not to require an EIA cannot be challenged unless that decision is Wendsbury irrational.” “The ‘oli-free’ management system had been in operation at Dinton for a number of years, and no complaints had been received by the Council. The officers had been to observe it working and were fully entitled to take this particular management scheme into account and conclude on the question of pollution and nuisance that ‘given the scale of the proposal and the operating method proposed, no substantive impact has been identified’. Similarly under the heading Characteristics of Potential Impact they concluded ‘it is considered that the proposal, if not operated as proposed in the application, would have the potential to cause intermittent local smell impacts beyond the site boundary. However, there is no evidence to suggest that the operating system proposed would cause any such substantive impacts. Details of the operation and management arrangements for the proposal accompany the application.’”
“a. No weight should be attached [that was the council’s view] to public health measures (bio-security, including avian flu), or by implication to the risks associated with these measures, or the public’s perception of them; “b. No weight should be attached to the current lack of certainty as to the contents of the ‘Oli-Free System’ or the ‘OMS’; “c. That the Council should take account of the fall-back position that they considered that there were no relevant planning controls over mobile chicken sheds however large they may be; and “d. That the Council should take account of the economic benefits of the new operation, but should not take account of the adverse effects on the existing livery stables (of Mr Roberts).”
“Avian flu was properly considered. It is accepted that health effects and public concerns may be material to an application. Installations with known effects, such as waste incinerators will need to take those matters into account, but this proposal was for a chicken farm. The alleged effects concern the possibility of diseases affecting chicken, which are health matters within the remit of health authorities. The potential for disease does not inevitably spring from the scheme and so the planning authority are entitled to hold that they can be held not to be material in this particular case. The officers came to the view that the risk of disease was not material, but explained the associated risks to the members when the application was first considered.”
“In paragraph 5.7 of their response to the judicial review protocol the defendant’s officers said ‘Whilst it is recognised that the issue is a developing one at a national and international level, any advice or instruction on the movement, housing or control of poultry is a matter for Central Government and its agencies and not something on which Local Planning Authorities should take unilateral action in the absence of specific Central Government advice’.”
“Mr Upton submitted that the development proposal shares an access way with the claimants, but this unusual factor was not taken into account in considering the balance between the applicant and the objectors. He said the amenity of the residents and the blighting effect of the threat of avian flu were not given enough weight. The residents’ material assets, i.e. the value of their properties including the livery stables belonging to Simon Roberts, were not considered, despite the fact that they are listed in Schedule 4 of the EIA regulations. The defendants failed to take account of the human factor and only considered the benefits of the proposal.”
“There remains the discrete question on the inspector’s finding ‘that matters of property valuation’ do not amount to material planning considerations, and its bearing on Convention rights. I readily accept that a diminution in value may be a reflection of loss of amenity and may be taken into account as demonstrating such loss and its extent but, in his reply, Mr Clayton, as I understand it, sought to create diminution of value as a separate and distinct breach of article 8 and article 1 of the First Protocol. Having regard to the background and purpose of each article, I do not accept that submission. A loss of value in itself does not involve a loss of privacy or amenity and it does not affect the peaceful enjoyment of possessions. Diminution of value in itself is not a loss contemplated by the articles in this context. “I do not underestimate the importance to landowners of a loss of value caused by neighbouring developments but it does not in my view constitute a separate or independent basis for alleging a breach of the Convention rights involved. The weighing of interests should not be converted into an exercise in financial accounting to determine the loss to the respective landowners and to the community.”