Brecon Beacons National Park Authority v National Assembly for Wales [2010] EWHC 3780 (Admin)

Case No CO / 2615 / 2010[2010] EWHC 3780 (Admin)IN THE HIGH COURT OF JUSTICEADMINISTRATIVE COURTSitting at:Venue Cardiff Civil Justice Centre2 Park StreetVenue CardiffCF10 1ETDate Date: Wednesday, 17th November 2010
Before
THE HONOURABLE MR JUSTICE OUSELEY
Between
Brecon Beacons National Park AuthorityClaimantNational Assembly for WalesDefendant
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Mr Robin Green (instructed by Rhiannon Edwards) appeared for Claimant.Mr James Strachan (instructed by the Treasury Solicitors) appeared for Defendant.
Judgment
[1]The Brecon Beacons National Park Authority is the planning authority for the National Park which refused an application by the interested parties, Great Porthamel Farm (“GP Services”), to build an anaerobic digester plant on its farmland at Great Porthamel, Talgarth, Brecon. The plant would comprise storage tanks and buildings for the digestive process.[2]GP Services run a mixed arable livestock farm enterprise. In order to lessen its need for artificial fertiliser, it had begun to import raw abattoir waste from Merthyr Tydfil as a fertiliser. This is slow to digest when spread on land as well as being rather smelly. It also used manure from its own farm operations.[3]The purpose of building an anaerobic digester on the farm was to support the farm through the anaerobic digestion of this abattoir waste so that it would be quicker to act and odourless. The proper operation of the digester also required a fairly set proportion of the farm’s own manure and maize silage. The right mix of input to the digester would enable the production of power of well as digestate. The heat produced by the combined heat and power plant was to be used on the farm. The electricity was to be sold offsite in its entirety. It would be sufficient to provide electricity for 300 houses almost all the year round.[4]The claimant, National Park Authority refused planning permission on the ground that it did not have sufficient information to enable it to satisfactorily determine that the proposal satisfied farm diversification policies and was not a waste management facility. A stand-alone waste management facility which happened to be on farmland and would be contrary to the various policies in the development plan.[5]The Inspector, having heard the appeal at an inquiry, allowed the appeal and imposed conditions which were intended to achieve the operation of the anaerobic digester as a subsidiary farm diversification activity conformably with relevant policies.[6]The claimant challenges that decision under section 288 of the Town and Country Planning Act 1980 on the grounds, first, that there is a want of legally adequate reasons dealing with the critical issue of subsidiarity, and secondly, in the light of a witness statement produced by the Inspector, contending that the Inspector had ignored considerations material to that issue.

The decision letter

[7]The Inspector described the project including its cost, life expectancy, power generating capability, input feed stock to the digester, their nature and source, the fact that the digestate could be spread readily on land, the buildings and in particular noting that the tanks would be sunk into the ground; and then he described the surroundings. The main issues were whether the project fulfilled the requirements of a farm diversification scheme, and its effect upon the character and appearance of the area, the listed buildings, living conditions, proximity for waste haulage, the environment and sustainable power generation. In paragraph 14 he said this:
“The overarching policy thrust in the National Park, in alignment with national policy, is that in considering all proposals for development they must not have an unacceptable impact on, or detract from or prevent the enjoyment of, the special qualities, natural beauty, wildlife and cultural heritage of the National Park.”
[8]This is an important overarching policy as he describes it. In paragraphs 15 to 16 the Inspector set out the relevant policy on farm diversification. The development plan is the 1999 Local Plan. Policy AG3 favours farm diversification where the proposal "remains subsidiary to the farm enterprise". The draft 2007 UDP contains policies that are material but are not development plan policies. ES17 permits diversification subject to provisos relating to the location of the building, the appropriateness of the intensity of the use in the environment, and the setting in the National Park. It cross refers to policy ES7 which permits the development of new buildings for appropriate commercial uses, again subject to requirements as to where the new building is located and the importance of locating that building in a rural area.[9]Mr Green for the claimant in his submissions to the Inspector and in his skeleton argument on this challenge raised a number of textual arguments about parts of policy ES7 and in particular the requirement that the new building be located within or adjacent to a group of "existing buildings which form part of the development proposal for diversification scheme" and the requirement that the new building be central to the operation, and required to be there because of a specialist rural commercial need. His oral submissions in fact did not require consideration of the detailed text of those policies or what facts might have supported some of the points of textual analysis to which those policies could give rise. In reality he accepted that the facts he relied on to justify his submissions in relation to policy were the facts that he relied on as part of his general challenge to the legal adequacy of the Inspector's reasons and the way he had considered subsidiarity in his decision. So no specific textual point of interpretation falls to be considered in this case.[10]The Inspector then discussed whether the proposal would be subsidiary or not in paragraphs 17 to 19:
“17. The AD would source the greater percentage, at least 50%, of its feedstock from the local and normal arable and livestock activities of the farming business. The remaining lesser part would come from abattoir waste. The hauling, spreading and injecting of abattoir gut content on farmland is a normal agricultural procedure that does not require planning permission. It is being done at Porthamel at present, albeit in its crudest form. The AD transition would lessen the unpleasant characteristics and odour of the raw gut content. The digestate from the AD would be spread on land farmed and managed by G P Services. This spreading process would be a normal agricultural activity in line with policy. 18. There was discussion at the inquiry about the area of land available at Great Porthamel for the spreading of digestate. These figures are imprecise, as there are variables relating to location, suitability and the area of managed land. However, I consider that there is adequate land available for the process, if managed within the design parameters of the AD throughput. Furthermore, the farming business intends to acquire rights over adjacent land to extend Great Porthamel’s land management. I think this extension is more than likely to take place and I heard no cogent submission to the contrary. In turn this extra land, together with existing holdings, would provide ample scope for spreading digestate in line with EA permits. 19. From what I heard at the inquiry, it is my view that this project is a farm diversification scheme that aligns with Development Plan policies and also more recent policies from the draft UDP. However, conditions would need to be incorporated in any grant of planning permission to ensure that the AD does not become a stand alone waste disposal facility in its own right. This would change its character and style of use, which could result in harm to the National Park. It is essential that it remains an indivisible part of the farming business. This could be controlled through planning conditions. However, I do not consider that conditions would be needed to precisely identify, on a day to day basis, the rolling programme of available land for digestate spreading as this would be too onerous for all concerned. Furthermore, this is a matter that would be properly controlled by any following EA licensing regime.”
[11]The Inspector then considered the relationship between the buildings proposed and the existing building, the intensity of use and the way in which the entirety of the new build would leave the entire farm complex either neutral or improved in appearance within the landscape. He considered that the buildings within the farm complex would conserve and enhance the Park's special qualities and natural beauty, subject to conditions which he was to impose. Other issues which he considered and on which found for GP Services included the support which the proposal would afford to the setting and fabric of listed buildings, the advantages of a significant reduction in odour from materials spread on the land. He pointed out that as there was no treatment process currently at the abattoir from which the waste came, and so it had to be hauled before treatment and then disposal. It would be better if it were hauled to disposal as fertiliser than hauled to land fill and better if it were hauled so that it could be digested and provide advantage in terms of renewable energy.[12]The conditions he imposed are important to understanding the issues in the case. In conditions 3C to 6C he provided that the digester should be managed and operated only by the owners of Great Porthamel Farm, GP Services, and should remain under the same ownership as the farm. The input materials or feedstock for use in the digester process had to comprise at least 50 percent by volume "sourced from the land farmed and managed by the owners/partners of Great Porthamel Farm”. The digestate (output) from the plant could not be spread on or injected into ground other than land farmed and managed by GP Services.

The evidence at the Inquiry

[13]The key issue for the Inspector under the development plan policy AG3 and under the draft UDP policies as he recognised was whether this proposal was subsidiary to the farm enterprise or whether in reality it was a waste disposal or power generating use by happenstance on agricultural land.[14]The issue which the claimant now wishes to raise in relation to reasons comes about this way. Before the start of the inquiry the claimant was unaware of various aspects of the proposal as the reason for refusal suggests. The claimant was unaware that the cost of the proposal was of the order of between £2 million and £2.5 million. It was unaware and remains unaware of the relationship of that cost and the income from the electricity generated to the farm income. The appellant had offered to show the business plan to an officer of the claimant but only on a confidential basis which the officer for understandable reasons had declined. The claimant also said that it was unaware of the quantity of electricity expected to be generated at least on a continual basis per annum, and of the quantity of maize silage which would be required from GP Services' land as a percentage of its total arable production. Much new information, the claimant said, emerged at the inquiry.[15]I shall have to examine that in a little detail. The evidence was given on behalf of the claimant by Mr Hooker, a consultant to the claimant. He described the key issues in his proof statement of evidence as being the lack of information necessary to make appropriate policy judgments. It is important to note what he said was required. The claimant needed to assess the scale of the enterprise in terms of among other things material outputs and the ability of the existing farm enterprise to use those outputs as fertiliser on its land. He commented:
"If, however, the proposal involves the import of significant quantities of waste materials and the export of significant quantities of digestate such that it is not subsidiary to the farm enterprise, then it is necessary to go on to consider 'the proposal against policies other than farm diversification'."
His evidence explained a little more about what he meant by “subsidiary”. He devoted a good deal of the rest of his evidence to calculating the quantity of digestate and the land available at Great Porthamel for the spreading of the quantity of digestate which he calculated would be produced. He then discussed planning policy and at paragraph 25, having set out development plan policy AG3, said:
"This raises the question of how the requirement 'subsidiary to the farm enterprise ' is to be judged. An obvious starting point would be an assessment of the contribution to turnover of the proposed enterprise."
Having said that it was not possible to pursue that because the business plan had not been disclosed, he continued:
"If the proposal provided digestate in substitution for artificial fertiliser only at Great Porthamel it might be regarded as a subsidiary operation but the calculations concluded at paragraph 16 above indicate that this is almost certainly not the case."
[16]Thus Mr Hooker's position was that if the digestate was used only at Great Porthamel it might be subsidiary but he doubted that that was a practical proposition. He then dealt with ES17 and in particular with ES7. His only points in relation to ES7 concerned what was a technical point about where the red line boundary was, and a throwaway line in which he doubted whether the anaerobic digestion of material arising in an industrial area some 30 miles away could constitute a specialist rural commercial need. This rather ignores the purpose of the anaerobic digestion as including some spreading of the digestate.[17]In paragraph 28 he dealt with a second criteria which he identified in relation to subsidiarity which concerned the relationship between the shed, tanks and other buildings on the farms and their impact on a range of public view points. That is an issue which, as I have said, the Inspector considered carefully in paragraph 23 of the decision letter, coming to the view that the impact in that respect was either neutral or beneficial and that the buildings were located in a way that satisfied the requirements of the relevant policies.[18]The parties had also produced before the inquiry the "statement of common ground". This described a number of details of the plant and it also described how all the electricity would be exported to the local electricity network but the heat energy would be used around the farm. The proofs of evidence of the appellants' witnesses exchanged before the inquiry provided further information about the proposal. Mr Beckedorf, who was sales manager of the manufacturer of the anaerobic digester plant, described the plant's capacity, the way in which the energy generation would be used, the capacity of the tanks and the dwell time of the digestate from which the total capacity could be deduced.[19]The inputs were described by Mrs Jones of GP Services, describing the evolution of their thinking as to the benefits of an anaerobic digester, the feed stock which was said to be 40 percent abattoir waste, 60 percent farm waste and crops, the digestate savings of fertiliser, the way in which the plant was sized to the farm and making the general point as to the benefits which the plant would have for the operation of the farm as a soil improver, providing energy for use on the farm and financial benefit from the energy sold. She commented in her statement:
"Without the farm and its land there would be no AD plant but without the AD plant there would still be a farm."
[20]The claimant's witnesses gave evidence first at the enquiry. It is clear that a major point raised by Mr Hooker for the claimant was whether a plant with the capacity to produce digestate in the quantity envisaged could be subsidiary to the farm enterprise when the farm enterprise lacked the capacity to absorb the production on its land. It is clear that the Inspector thought that Mr Hooker would be able to offer valuable insights into the way in which the policy on subsidiarity should be applied, what the tests were which would enable the Inspector to judge whether a proposal was subsidiary or not to the farming enterprise, and what criteria he should consider. The Inspector asked Mr Hooker about this at the close of Mr Hooker's evidence. The Inspector provided a witness statement setting out what those answers were and Mr Hooker does not dissent from the evidence of the Inspector.[21]The Inspector said this in paragraph 5 of his statement dated 26 October 2010:
"Neither the details of claim nor the witness statement referred to the oral evidence of Mr Hooker at the inquiry which provides important context as to the issues that were before me. In response to questions that I asked of him, Mr Hooker agreed that the anaerobic digester would be subsidiary to the farm and satisfy farm diversification policy if at least 50% of the feed stock of the anaerobic digester arises from the Great Porthamel farming business, if all of the digester produced by the anaerobic digester is spread on land under the control of the farming business and if the anaerobic digester is owned and operated by the Great Porthamel farming business."
It is clear that the conditions imposed were attached to ensure, as he said in paragraph 6 of his statement, that the anaerobic digester would be subsidiary to the farm and satisfy farm diversification policy in accordance with the evidence given by Mr Hooker for the council at the inquiry.[22]After Mr Hooker had given his evidence there was a further discussion between the parties at the Inspector's invitation as to the quantity of digestate that might be produced, the quantity of land needed for the spreading of that output and whether that was available at GP Services’ farm. There was a difference of view between the parties which led to a best and worst case range, but the Inspector was satisfied that GP Services had enough land to absorb all the digestate and, even if it did not, it would acquire sufficient to make sure that it did. No challenge is raised to that conclusion.[23]That therefore deals with the largest point made by Mr Hooker in his proof of evidence as to why the proposal was not subsidiary, namely that the land owned or controlled by GPS did not have the capacity to absorb the digestate.[24]In Mr Green's closing submissions to the Inspector he referred to the farm diversification policies and ES7 and ES17 in particular. In paragraphs 8 to 11 he made these points. First, following calculations which he undertook, the output capacity of the plant greatly exceeded Great Porthamel farm's capacity to utilise the digestate, and so the proposal was not “subsidiary”. At paragraph 9 is an additional factor in relation to the capacity to absorb output. Second, paragraph 10 deals with input feedstock. It makes the point that the 120 hectares of arable land at the farm would not produce the 7500 tonnes of maize which was required to be fed in if the plant were to operate at capacity and at the required ratios between abattoir waste, manure and maize. He made the point that it therefore appeared that the appellants "will need to import maize in order to feed the AD even if all the arable land at the farm is devoted to growing maize". So there Mr Green was dealing with the source of the input feed stocks as the second aspect going to subsidiarity. The third point in paragraph 11 of his submissions was a general point that the farm would become a subsidiary element of the AD and it was not surprising that it had disclosed nothing about the commercial returns it would make from the more than £2 million investment in the plant. In short he submitted:
"This was not farm diversification but a substantial waste recovery and biomass energy plant which will be supported by the farm on which it is located."
Thus he drew the threads of his points together and made the point which had concerned the claimant.[25]The appellants' closing submissions referred to the authority's tests for farm diversification. They specifically pointed out what Mr Hooker had said in paragraph 2 of his proof. They referred to the questions that he had been asked by the Inspector and to the answers he gave which are reflected in what the Inspector said in his statement.

The claimant’s submissions

[26]Mr Green submits that his closing submissions raised issues which the Inspector ought to have dealt with by specific reasons, and material considerations which effectively the Inspector ignored. In particular he points to the submissions he made in relation to input feed stock. He submits that the submissions he made in effect superseded the answers given by Mr Hooker because of subsequent evidence that emerged at the inquiry, and it was to his submissions that the Inspector ought to have addressed his reasoning rather than to the evidence of Mr Hooker.

Conclusions

[27]I make the following observations in rejecting that submission. It is notable that Mr Green’s closing submissions do not mention Mr Hooker's evidence at all. Nor does Mr Green suggest in them that he was making a submission which was in conflict with the answers which Mr Hooker had given or that Mr Hooker's answers had been superseded by subsequent evidence. Nor, having heard what the appellants had to say about the relevance of Mr Hooker's answers, did he intervene to say that all that was based upon a position which had been superseded by events. There was no suggestion by Mr Green that Mr Hooker needed to revisit the answers he had given in the light of specific evidence which had emerged later, although it was open to him to have done so. It was also open in principle for Mr Hooker, when asked by the Inspector to assist on the question of what tests or criteria might show that a proposal was subsidiary or not, to say that the cost or capital investment was relevant, or that the percentage of the farm production taken by the digester was relevant, that the percentage of farm income which the sale of electricity represented was relevant or that the overall scale of generation was relevant; but he did not do so.[28]It is scarcely surprising the Inspector concluded as he did that the proposal, subject to the conditions, met Mr Hooker's test and therefore he regarded it as a subsidiary proposal to the farm enterprise. He also dealt with Mr Hooker's evidence that buildings and the distance the waste was hauled would be relevant to subsidiarity.[29]Part of the argument in relation to subsidiarity, namely output capacity, was dealt with by conditions in a way that leads to no challenge. As to input, though one should not scrutinise counsel's submissions as if they were a statute, Mr Green's point was that there might be importation of feedstock rather than the percentage of production on site that might be fed into the digester. If Mr Green's position in relation to that was unclear it is a lack of clarity for which his submission is, with respect, responsible. But I do not think it was a lack of clarity. The grounds of challenge, in particular paragraph 14, repeated in amendment and reamendment, say this about that passage in his closing submissions:
"The authority had referred to the size of the plant, its cost and the need to import maize to feed the plant as factors showing it was not ancillary."
The Inspector clearly deals with that input point in the way he frames the conditions.[30]So the Inspector has dealt with the two crucial subsidiarity output and input points. In my judgment his reasons are perfectly clear to an informed reader who had been at the inquiry. Conditions were imposed to reflect the claimant's evidence as to the appropriate tests for subsidiarity. The claimant was concerned with the thrust, not a technical analysis, of policy, as Mr Green accepted. The reason that the proposals complied with the development plan policy was because the test that the claimant itself proposed for that were met and could be enforced by condition.[31]I am not necessarily saying that the claimant is bound in all cases to accept that the test set forth by Mr Hooker is the only way in which subsidiarity can be approached and that other factors are incapable of being relevant but, having regard to the way in which the evidence emerged here and the case was argued here, those other factors cannot be regarded as considerations upon which the Inspector was bound to opine in order for his reasons to be legally adequate.[32]The material considerations which Mr Green says the Inspector ought to have dealt with but did not are the cost of the plant, the quantity of electricity generated and the income generated in relation to other farm income. It is my judgment that those factors, if relevant, were not ignored in a way that makes this decision legally objectionable. The principal points, in relation to subsidiarity, namely source of input and location of outputs, were dealt with explicitly and adequately reasoned. The other facets of subsidiarity do not require specific comment, even if they are material considerations. It may be that cost and income generated as a percentage of farm turnover can be a relevant consideration, although I am not clear how far it is a planning consideration or separately relevant once the evidence in relation to source of input, location of output and current practice has been considered, but I do not decide that matter finally. It was a point that was raised but it was not at the forefront of the evidence of Mr Hooker, nor in the closing submissions of Mr Green.[33]The quantity of electricity produced was not a matter which was referred to in Mr Green’s closing submissions at all. It is difficult to see, financial considerations apart, how one could measure subsidiarity of farm operations by reference to the quantity of electricity generated measured against farm activities anyway.[34]The proposed amended grounds raise a variety of other points which were in fact dealt with by the Inspector either in his description of the development or in his analysis of inputs and outputs. For example, the cost of the digester is specifically referred to, the quantity of maize required to be produced is specifically referred to, the quantity of electricity generated is specifically referred to. These are all facets of the larger judgment which the Inspector made as to subsidiarity. In this case there can be no complaint that they are not specifically referred to in the context of subsidiarity. The crucial points were properly dealt with.[35]It is rather a case in which the Inspector kept up with the change in the evidence contrary to the submissions of Mr Green, and it was the claimant's case that failed to keep up with the evolution of the evidence and its significance. No complaint can be made of an inspector who keeps up with the evolution of the evidence and devotes his decision letter to dealing with that evidence as it has evolved.[36]Accordingly, for those reasons I do not consider that this application can be granted and I dismiss it. MR GREEN: My Lord, in those circumstances I would ask for an order that the claim be dismissed. I am pleased to say, my Lord, that we discussed in principle the position regarding costs and the claimant is prepared to pay the defendant's costs summarily assessed in the sum of £14,500. MR JUSTICE OUSELEY: Very well, there will be an order for costs in those terms. MR GREEN: I am obliged. MR JUSTICE OUSELEY: I am grateful to counsel. Thank you very much. MR GREEN: Thank you, my Lord.