“to create a single large structure, comprising an existing livestock shed, covered sheep handling system and a yard in between covered by a roof.”
“(1) The assessment provisions apply in relation to – (a) granting planning permission on an application under Part 3 of the TCPA 1990 (control over development)…..”
"100BA Access to agenda and connected reports: principal councils in Wales (1) Copies of the agenda for a meeting of a principal council in Wales and copies of any report for the meeting must be published— (a) electronically, and (b) in accordance with subsections (3) to (5). (2) If the proper officer thinks fit, there may be excluded from the copies of reports published under subsection (1) the whole of a report which, or any part which, relates only to items during which, in the officer's opinion, the meeting is likely not to be open to the public. (3) A document required to be published under subsection (1) must be published at least three clear days before the meeting, or, if the meeting is convened at shorter notice, then at the time it is convened."
“(1) An application to the High Court for one or more of the following forms of relief, namely— (a) a mandatory, prohibiting or quashing order; (b) a declaration or injunction under subsection (2); or (c) an injunction under section 30 restraining a person not entitled to do so from acting in an office to which that section applies, shall be made in accordance with rules of court by a procedure to be known as an application for judicial review. (2) A declaration may be made or an injunction granted under this subsection in any case where an application for judicial review, seeking that relief, has been made and the High Court considers that, having regard to— (a) the nature of the matters in respect of which relief may be granted by mandatory, prohibiting or quashing orders; (b) the nature of the persons and bodies against whom relief may be granted by such orders; and (c) all the circumstances of the case, it would be just and convenient for the declaration to be made or the injunction to be granted, as the case may be. ….. (4) On an application for judicial review the High Court may award to the applicant damages, restitution or the recovery of a sum due if– (a) the application includes a claim for such an award arising from any matter to which the application relates; and (b) the court is satisfied that such an award would have been made if the claim had been made in an action begun by the applicant at the time of making the application.” (c) an injunction under section 30 restraining a person not entitled to do so from acting in an office to which that section applies, (a) the nature of the matters in respect of which relief may be granted by mandatory, prohibiting or quashing orders; (b) the nature of the persons and bodies against whom relief may be granted by such orders; and (a) the application includes a claim for such an award arising from any matter to which the application relates; and (b) the court is satisfied that such an award would have been made if the claim had been made in an action begun by the applicant at the time of making the application.”
“The proposed covered handling area and covered yard will ensure that surface water will not be contaminated with increased phosphates and silts and therefore ensure that negative impacts on water quality are avoided. This is likely to be a betterment to the existing situation (an uncovered handing area with a permeable surface).”
"any development that reduces the frequency, or volume, of irregular phosphorus discharges within a SAC river catchment such as the erection of agricultural structures and drainage schemes to separate rainwater from manures and slurries by covering yards and existing manure/slurry stores. Note that any such development must not be linked to an increase in livestock numbers or the capacity for an increase in livestock numbers through provision of additional infrastructure."
“Concern had been raised by third parties regarding the farm operating an intensive livestock unit and how the proposals will facilitate or intensify that use. The Authority has sought an independent appraisal of the existing operations at the farm which the proposal does not intend to intensify but to improve for both animal husbandry and environmental reasons.”
“The independent appraisal concludes, after consideration of the information supplied in the application for the two buildings and investigations undertaken during a site visit, that the farm justifies the proposed buildings, not only as an environment protection measure but also for ease and convenience of livestock handling and improved welfare. This is not an unusual operation and sheep numbers are not exceptional particularly in an area where there are flocks in excess of 3,000.”
"9.3.1.4.5 An HRA Screening and Appropriate Assessment have been carried out. NRW has reviewed the AA (response11 May 2022 ) and our conclusions that as a result of the proposal there would be no adverse effects on the integrity of the River Wye SAC. NRW expect the planning condition as listed in the AA be attached to any planning permission granted in order to protect the integrity of the SAC. Following the issue of updated NRW guidance the AA has been updated and sent to NRW for review. At the time of drafting the agenda the response is awaited. 9.3.1.4.6 The proposed buildings are to cover the existing areas to provide a dry area to work with the stock and it is stated that they will not be used for housing livestock. The applicants also state that the proposed buildings are not proposed to increase the size of the enterprise. NRW are therefore satisfied that a change to the existing levels of ammonia emissions is unlikely provided that there is no increase in stock numbers. The building is for the handling of livestock and is not linked to an increase in livestock numbers in accordance with NRW advice."
"BBNPA officers could have done so much more to prevent this environmental and welfare disaster. They could have asked why the farmer wanted a succession of big new buildings over recent years and checked what they were being used for. They could – and could still – carry out Environmental Impact and Habitats Regulations Assessment of the whole farm project. But officers have refused to do this, claiming that the shipping of thousands of lambs onto this tiny hill farm for fattening over a handful of weeks does not amount to intensive livestock production. ….. Can I ask that members refuse this application and invite the applicant to submit a proposal for a more modest structure that would achieve the aim of covering a handling area without either the visual impact of the proposed development or the ability to house more livestock. As this is a development to facilitate a project that has never been subject to environmental habitats or regulations assessment, BBNPA could then scrutinise the Dan y Bwlch operation as a whole and exercise proper control and mitigation over it."
"Having had a look and discussion with others, the report is a farm cross compliance breach report which was compiled by an Environment Team Adviser in NRW which was to be supplied to RPW as evidence of a cross compliance breach following a farm inspection by the ET officer. … This is not a planning matter and is dealt with separate to the planning system or any planning application. We have no further planning comments to make on this. In reference to the [Fish Legal] letter and 'in combination effects' they suggest are being caused by 'the impact of grazing in addition to or in combination with the hardstanding. Either the development will introduce a higher stocking which will lead to further stripping of the surface area towards the watercourses and increased amounts of nutrient rich manure and/or the hardstanding will be an additional source of run off pollution to be measured alongside the existing pollution sources'. We have provided comments on both applications and in response to both AA's on the basis and understanding that the proposals were for 'Erection of a steel portal frame, standard agricultural building to cover the sheep handling system (20/18928/FUL) and Steel portal frame roofing to form covered yard in-between two buildings (20/18931/FUL) in which there was to be no increase in stock. We understand that these measures were to be as a betterment to the existing situation to help reduce surface soil erosion and surface water run-off which could contain nutrient rich manure. The plans submitted included a drainage plan to contain dirty water effluent in an underground dirty water storage tank and separate surface water French drain system to replace the existing soakaway."
“The Officer recommendation minded to permit subject to the conditions set out in the officer’s report, was agreed.”
“(2) Failure to Publish/Provide Appropriate Assessment a. The [respondent] acted in breach of the [1972 Act] by failing to publish the updated HRA Screening Matrix & Appropriate Assessments (“AAs”) with three clear days prior to the planning committee meeting held on21 March 2023 ; b. further and/or alternatively, the Decisions were procedurally unfair in that: i. the failure to publish the AAS of the proposed developments deprived interested parties to comment in circumstances where the nature and scope of the HRA/AAs assessments were highly controversial; and ii. officers failed to place the AAs before the committee depriving members of highly material evidence upon which their decision to grant planning permission necessarily depended.” i. the failure to publish the AAS of the proposed developments deprived interested parties to comment in circumstances where the nature and scope of the HRA/AAs assessments were highly controversial; and ii. officers failed to place the AAs before the committee depriving members of highly material evidence upon which their decision to grant planning permission necessarily depended.”
“50. At the third stage the "competent authority" makes a decision under regulation 63(5). Who makes that decision and what is its nature? In my judgment, a number of conclusions may be drawn from the language of the sub-regulation: (1) the regulation 63(5) decision is based on the conclusions of the appropriate assessment but is separate from it. (2) the regulation 63(5) decision is made in the context of deciding whether or not to grant planning permission. In practice, therefore, this decision will usually be made by a planning committee but that is not a strict requirement. (3) planning permission cannot be granted unless the planning committee has ascertained, i.e. determined or decided, that the proposal has no adverse effects on the integrity of the SAC.”
“56. What happened here must therefore be analysed in the following way: (1) The AAs, then only in draft, were not provided to the planning committee. (2) The officer's reports referred to the AAs in very general terms and stated that NRW advice was awaited. (3) The only fair reading of paras 6 and 7 of Ms Hughes' first witness statement, and these in any event represent the law, is that had the AAs been in final form in good time their substance would have summarised in the officer's reports and they would have been published online. This was because they were relevant to the planning committee's decision-making process. (4) Although members were aware that the AAs would, once finalised, not be adverse, they were blindsided as to the detail. (5) The planning committee resolved to grant permission without being able to exercise an evaluative judgment on the AAs. (6) The planning committee did not delegate the regulation 63(5) decision on the AAs to an officer. It was not suggested to them that they needed to. (7) Mr Jones, who signed the formal decision letters on 22 March, did not apply his mind to the AAs. 57. Ms Graham Paul did seek to persuade me that step (6) above was not the position. First, she sought to rely on para 2.18 of section C2 to the Scheme of Delegation. However, that provision is concerned only with the signing off of the appropriate assessments (my stage 2). It has nothing to do with the exercise of the regulation 63(5) function (my stage 3). Secondly, she relied on the wording "within the requirements of the law" within the first bullet under section A.2.2. But that is far too general to assist. There was no delegation in this case, and none was ever intended.”
“59. For all these reasons, the Claimant has demonstrated a technical breach of regulation 63(5) and what I am calling limb 2b of Ground 2 is well-founded.”
“65. Taking all of this on board, it seems to me that a modicum of reality needs to enter this discourse. This case has a lengthy history with two previous AAs which entered the public domain. The issues were always quite straightforward, viz: (1) stock levels; (2) whether the hardstanding would magnify the pollution levels; (3) the cross-compliance report; and (4) the need for a more wide-ranging HRA covering the entirety of this farming operation. No one has suggested that there are other issues, and the Claimant has known since October 2023 that the Defendant was relying on section 31(2A). Had the relevant conduct not occurred, is it very likely that the outcome would not have been substantially different? 66. In my judgment, it is necessary to consider this question on two ways. First of all, and ignoring any further representations from the public, would the planning committee's decision have been the same? The answer to that question is obviously, yes. We know that this was a unanimous decision and we also know that the committee at the time of making it knew that NRW was giving positive advice. This was an entirely technical breach. Further, for the reasons set out in the next paragraph, the representations from Fish Legal added nothing. Even on the old Simplex test, the outcome would inevitably have been the same. 67. Secondly, one needs to ask what the position would have been had the section 100D breach not occurred. Here, one predicates the giving of an opportunity for the public to make representations on the AAs and more generally. There might have been more voices adding to the chorus but it is impossible to imagine that anything new or different might have emerged. The concerns about increased stocking levels had always been at the forefront of local residents' concerns. The arguments had been volubly made and then rejected. There were, and are, sound reasons for rejecting them. The decisions of three judges are entirely clear, even if each has placed a slightly different emphasis on particular points. The concerns about the hardstanding were, in my opinion, without foundation. Both the Defendant and NRW considered that the proposals would bring about some improvement, and it is frankly impossible to disagree. The cross-compliance report does make concerning reading, and I am left wondering what has been done about what appears to be a woeful state of affairs. However, it has nothing to do with these particular applications; the report relates to the farming operation as a whole. Finally, the argument that a more wide-ranging HRA should be undertaken does not impact on the assessment carried out in the context of these particular AAs. True it is that the Defendant had to consider in-combination effects, but if the impact of this particular proposal would be neutral (and on one view be slightly beneficial in terms of the integrity of the SAC), this turns into a zero sum game. X plus 0 always equals X. The Defendant has to focus on the 0; there is nothing to be done in the context of the Habitats Regulations that could alter what has already occurred. Mr Stedman Jones' submissions under this rubric were predicated on the second part of the equation being above 0. 68. All that Mr Thorold could do was to submit that the court must not speculate as to what further representations might have been made. However, the Claimant has had seven months in which to assemble her case on this issue. If there were some new point which everyone to date has missed, it would surely have come to light by now. 69. Despite the very high bar that the Defendant needs to surpass, I am persuaded by Ms Graham Paul's submissions that I should refuse relief in relation to Ground 2 on the basis that it is highly likely that the outcome would not have been substantially different if the conduct complained of had not taken place.”
“1. The claim is dismissed.”
“The learned judge erred by: (a) impermissibly stepping into the shoes of the statutory decisionmaker; (b) an application of section 31(2A) SCA 1981 which frustrates the purpose of LGA 1972; (c) taking into account immaterial consideration(s) and/or placing undue weight on factors including the failure to adduce post-decision evidence ; and (d) failing to consider alternative “substantially different” outcomes, in particular the possibility that conditions may have been imposed.”
“… erred in finding that the Respondent had breached Regulation 63(5) of the [Regulations] andsection 100D of the Local Government Act 1972 … Consequently, there should have been no issue of the Court exercising its discretion not to quash the planning permission as there was no illegality in the first place.”
“272. The new statutory test modifies the Simplex test in three ways. First, the matter is not simply one of discretion, but rather becomes one of duty provided the statutory criteria are satisfied. This is subject to a discretion vested in the court nevertheless to grant a remedy on grounds of “exceptional public interest”