“Current Scenario The predicted odour exposure would be slightly in excess of the Environment Agency's benchmark for moderately offensive odours, which is 3.0 oue/m3 as an annual 98th percentile hourly mean, at Beasthorpe House and Beasthorpe Farm. At other properties in the area, the predicted odour exposures would be below the Environment Agency's benchmark. Fallback Scenario At all receptors the predicted odour exposure is higher than under the current scenario. The predicted odour exposure would exceed 10.0 oue/m3 as an annual 98th percentile hourly mean at Beasthorpe House and Beasthorpe Farm. At other properties in the area, the predicted odour exposures would remain below the Environment Agency's benchmark of 3.0 ouE/m3 as an annual 98th percentile hourly mean, but would be 2 to 3 times higher than under the current scenario.”
“Current Scenario The modelling predicts that: • At all of the nearby wildlife sites identified, the process contribution to both ammonia concentration and nitrogen deposition is below the Environment Agency's lower threshold percentage of the Critical level/Load (100% for non-statutory sites and 20% for SSSls). • At all of the nearby SSSls, the process contribution is below 1% of the Critical Level/Load. Fallback Scenario The modelling predicts that: • The process contributions to both ammonia concentration and nitrogen deposition would increase at all nearby wildlife sites. • Although higher than the current scenario, the process contribution would remain below the Environment Agency's lower threshold percentage of the Critical Level/Load (100% for non-statutory sites and 20% for SSSls). • Although higher than the current scenario, at all of the nearby SSSIs, the predicted process contribution would remain below 1% of the Critical Level/Load.”
“It is not clear precisely when the sheds were erected or when turkeys were first housed in them, but from August 2006, when our clients first moved in to their property, through to May 2018, the livestock sheds were in situ and were housing free range chickens. In May 2018, the sheds were emptied of livestock. Since that date they have remained unoccupied.”
“However, it is understood by MBAL that the building was previously used for free range poultry rearing with around 16,000 birds and there is no established use for pig rearing. If this is the case then an appropriate baseline comparison would be with the use of the buildings for poultry. Advice from an agricultural engineer has suggested that the use of the building to house pigs using a straw based solid base would be unrealistic as there may be insufficient opening in the walls to allow for suitable ventilation. In addition, it is possible that the headroom is not sufficient for use of the equipment normally used for litter/manure clearance. This further suggests that an appropriate comparison would be with a scenario where the buildings were used for poultry rearing.” ii) MBAL used SCAIL modelling to assess likely emissions. In their conclusions MBAL state: “The results of the odour modelling provided by the applicant demonstrate that odour concentrations considered by the Environment Agency to represent “unacceptable pollution” would exist at Beasthorpe House for both the proposed and the fall back option. This is confirmed using screening approach with the SCAIL model that predicts odour concentrations well in excess of Environment Agency thresholds. The odour assessment has not followed the advice in the IAQM guidance that more than one assessment method is used. In this case, the use of sniff testing would have been very valuable to assessment the resulting odour environment. The IAQM guidance suggests that “considerable weight” should be given to such sensory methods. The outcome of the ammonia assessment is that thresholds detailed in IAQM guidance and the new JNCC guidance are exceeded. When this occurs, a more detailed assessment is required usually including an in combination assessment. Screening modelling using the SCAIL model also suggests that the predicted concentrations at a local SINC and the nearest SSSI would exceed the 1% threshold of critical loads and levels and the new JNCC Decision Making Thresholds. Where this occurs, then a more detailed assessment is required usually including an in-combination assessment. This has not been provided.”
“The detailed modelling indicates there will be less than 1% of the site relevant Critical Load / Level contribution from the development alone. However no cumulative assessment has been provided, therefore it cannot be concluded with certainty that the development will not have an impact when considered in combination with other developments 1. As such, Natural England considers that this proposal may have potentially significant effects on the natural environment but requires further information in order to determine the significance of these. An assessment of the potential cumulative impacts of the development is therefore required. 1 NPPF Paragraph 180b”
“Overall, in light of these findings notwithstanding the consideration of the LPA and the Environment Agency, based on the available information it is not possible to rule out conclusively the possibility of significant impact from the development in terms of odour and waste management issues and also ammonia depositation. It has therefore has (sic) been concluded that while there will be likely significant environmental effects. This is due to the resulting odours as a consequence of the development for two particular receptors, together with contested ammonia dispersal and depositation findings in respect of a SSS. Taken together with the unassessed effects of land spreading and potential and in relation to cumulative impact in relation other nearby agricultural activity significant environmental effect cannot be ruled out (see also Question 21).”
“The development will be a change to the previous livestock use involving poultry for two unoccupied buildings, in a rural setting. However, although the business is already practiced in the handling of animal waste and its other effects, these will increase and there is some evidence of existing environmental concerns with regards to local amenity on a number of issues, particularly odour associated with Brandy Wharf facility. A number of assessments have been carried out to support the application, however, these focus on the direct impacts from the expanded building and do not consider the potential for cumulative effects. For example, the Odour Study provided does not assess indirect impacts away from the piggery such as from the spreading of slurry across the farm. These wider activities form part of the project for EIA purposes. Overall based on the available information it is not possible to rule out conclusively the possibility of significant impact from the development in terms of odour dispersal and waste management issues and also ammonia depositation to the Kingerby Beck Meadows SSSI.”
“The unit was purchased in 2020 with the intention of implementing the proposed piggery use and the building concerned were previously used for free range poultry rearing with around16,000 birds present. It is also acknowledged the odours impacts are likely to be greater should the piggery use be implemented using a straw based system on a reinstated solid floor. However, the buildings have been unoccupied since 2018 and the agricultural unit lacks a reliable environmental baseline to inform the assessment of impacts. … Notwithstanding the analysis provided with the application the available information indicates there may be cumulative impacts associated with the effects of land spreading and additionally those arising from the existing piggery located at Brandy Wharf Farm. It is noted that a number of objections lodged in respect of the proposal reference local amenity impact issues concerning odour from this facility. Furthermore, in its consultation response Natural England state the assessments undertaken do not make a cumulative assessment of likely effects. Overall while for some properties there will be localised amenity impacts largely from odour, based on the available information for the closest properties, particularly Beasthorpe House and Beasthorpe Farm it is not possible to rule out conclusively the possibility of significant environmental effect on those receptors. … Conclusion The foregoing consideration of the potential for significant odour and ammonia impacts on various nearby receptors and protected site in the locality is sufficient to indicate to the Secretary of State that the development proposed is likely to have significant effects on the environment. Although the area affected is geographically large the population affected is relatively small, there is potential for significant localised impacts on individual receptors in respect of odour (e.g. individual dwellings) in addition to nationally protected sites through the deposition of ammonia, to the extent they are considered likely to be significant. There are no other issues (e.g. transport, noise, flood risk but also land contamination, visual, heritage and ecological impacts) that indicate a likelihood of there being significant environmental effects from this proposal. This outcome is therefore, based largely in considering the odour and ammonia issues due in part to the uncertainty over the cumulative impact of those effects beyond that directly arising from the project development and other similar activity in the locality. As a result of this uncertainty, it is not possible for the Secretary of State to reasonably conclude that there is no likelihood of significant effects. EIA is therefore required.”
“3. Prohibition on granting planning permission or subsequent consent for EIA development The relevant planning authority, the Secretary of State or an inspector must not grant planning permission or subsequent consent for EIA development unless an EIA has been carried out in respect of that development.”
“EIA development” means development which is either— (a) Schedule 1 development; or (b) Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location;”
“ “Schedule 2 development” means development, other than exempt development, of a description mentioned in column 1 of the table in Schedule 2 where— (a) … (b) any applicable threshold or criterion in the corresponding part of column 2 of that table is respectively exceeded or met in relation to that development;”
“(5) The Secretary of State must make a screening direction following a request under regulation 5(6)(b) or 6(10) within— (a) 3 weeks beginning with the date of receipt of the request; or (b) where the Secretary of State gives notice under paragraph (3), such longer period not exceeding 90 days beginning with the date on which the person making the request for a screening direction submits the information required under paragraph (3) as may be reasonably required, but this is subject to paragraph (6)” but this is subject to paragraph (6)”
“(4) Where a relevant planning authority or the Secretary of State has to decide under these Regulations whether Schedule 2 development is EIA development, the relevant planning authority or Secretary of State must take into account in making that decision— (a) any information provided by the applicant; (b) …..; and (c) such of the selection criteria set out in Schedule 3 as are relevant to the development. (5) Where a relevant planning authority adopts a screening opinion under regulation 6(6), or the Secretary of State makes a screening direction under regulation 7(5), the authority or the Secretary of State, as the case may be, must— (a) state the main reasons for their conclusion with reference to the relevant criteria listed in Schedule 3; (b) if it is determined that proposed development is not EIA development, state any features of the proposed development and measures envisaged to avoid, or prevent what might otherwise have been, significant adverse effects on the environment; and (c) send a copy of the opinion or direction to the person who proposes to carry out, or who has carried out, the development in question.”
“The carrying out of development to provide any of the following— Column 1 Description of development Column 2 Applicable thresholds and criteria 1 Agriculture and aquaculture (c) intensive livestock installations The area of new floorspace exceeds 500 (unless in Schedule 1) square metres. …. 13 Changes and extensions (b) Any change to or extension of Either— development of a description listed in (i) The development as paragraphs 1 to 12 of column 1 of this changed or extended may table, where that development is have significant adverse already authorised, executed or effects on the environment; in the process of being executed. or”
“Characteristics of development”, “Location of development” and “Types and characteristics of the potential impact”
“(2) Subject to paragraph (3), expressions used both in these Regulations and in the Act have the same meaning for the purposes of these Regulations as they have for the purposes of the Act.”
“(1) Subject to the following provisions of this section, in this Act, except where the context otherwise requires, “development,” means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land.”
“(2) The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land— … (e) the use of any land for the purposes of agriculture or forestry (including afforestation) and the use for any of those purposes of any building occupied together with land so used;” afforestation) and the use for any of those purposes of any building occupied together with land so used;”
“20. Having dealt with those points I can return to the substance of the argument, which is that the planning officer failed to demonstrate that she had considered the likely effect of the development in relation to traffic movements, the landscape and noise or, if she had, to explain why an EIA was not required in this case. When considering a submission of this kind I think it important to bear in mind the nature of what is involved in giving a screening opinion. It is not intended to involve a detailed assessment of factors relevant to the grant of planning permission; that comes later and will ordinarily include an assessment of environmental factors, among others. Nor does it involve a full assessment of any identifiable environmental effects. It involves only a decision, almost inevitably on the basis of less than complete information, whether an EIA needs to be undertaken at all. I think it important, therefore, that the court should not impose too high a burden on planning authorities in relation to what is no more than a procedure intended to identify the relatively small number of cases in which the development is likely to have significant effects on the environment, hence the term “screening opinion”. 21. Having said that, it is clear from Mellor that when adopting a screening opinion the planning authority must provide sufficient information to enable anyone interested in the decision to see that proper consideration has been given to the possible environmental effects of the development and to understand the reasons for the decision. Such information may be contained in the screening opinion itself or in separate reasons, if necessary combined with additional material provided on request.”
“The decision maker must have regard to the precautionary principle and to the degree of uncertainty, as to environmental impact, at the date of the decision. Depending on the information available, the decision maker may or may not be able to make a judgment as to the likelihood of significant effects on the environment. There may be cases where the uncertainties are such that a negative decision cannot be taken. Subject to that, proposals for ameliorative or remedial measures may be taken into account by the decision maker.”
“27. The status of a fallback development as a material consideration in a planning decision is not a novel concept. It is very familiar. Three things can be said about it: (1) Here, as in other aspects of the law of planning, the court must resist a prescriptive or formulaic approach, and must keep in mind the scope for a lawful exercise of planning judgment by a decision-maker. (2) The relevant law as to a “real prospect” of a fallback development being implemented was applied by this court in Samuel Smith Old Brewery (see, in particular, paragraphs 17 to 30 of Sullivan L.J.’s judgment, with which the Master of the Rolls and Toulson L.J. agreed; and the judgment of Supperstone J. in R. (on the application of Kverndal) v London Borough of Hounslow Council[2015] EWHC 3084 (Admin) , at paragraphs 17 and 42 to 53). As Sullivan L.J. said in his judgment in Samuel Smith Old Brewery, in this context a “real” prospect is the antithesis of one that is “merely theoretical” (paragraph 20). The basic principle is that “… for a prospect to be a real prospect, it does not have to be probable or likely: a possibility will suffice” (paragraph 21). Previous decisions at first instance, including Ahern and Brentwood Borough Council v Secretary of State for the Environment [1996] 72 P. & C.R. 61 must be read with care in the light of that statement of the law, and bearing in mind, as Sullivan L.J. emphasized, “… “fall back” cases tend to be very fact-specific” (ibid.). The role of planning judgment is vital. And “[it] is important … not to constrain what is, or should be, in each case the exercise of a broad planning discretion, based on the individual circumstances of that case, by seeking to constrain appeal decisions within judicial formulations that are not enactments of general application but are themselves simply the judge’s response to the facts of the case before the court” (paragraph 22). (3) Therefore, when the court is considering whether a decision-maker has properly identified a “real prospect” of a fallback development being carried out should planning permission for the proposed development be refused, there is no rule of law that, in every case, the “real prospect” will depend, for example, on the site having been allocated for the alternative development in the development plan or planning permission having been granted for that development, or on there being a firm design for the alternative scheme, or on the landowner or developer having said precisely how he would make use of any permitted development rights available to him under the GPDO. In some cases that degree of clarity and commitment may be necessary; in others, not. This will always be a matter for the decision-maker’s planning judgment in the particular circumstances of the case in hand.”
“The characteristics of development must be considered with particular regard to— (a) the size and design of the whole development; (b) cumulation with other existing development and/or approved development; …”
“3. A description of the relevant aspects of the current state of the environment (baseline scenario) and an outline of the likely evolution thereof without implementation of the development as far as natural changes from the baseline scenario can be assessed with reasonable effort on the basis of the availability of environmental information and scientific knowledge.”
“36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”