“Policy W3 Agricultural waste management including for livestock units 1. Waste management method statements will be required for proposals for livestock unit(s) on agricultural holdings that: a. for non-EIA development, demonstrates that both natural and non-natural wastes generated by the proposed development will be appropriately managed both on and off-site; or b. for EIA development, demonstrates that both natural and non-natural wastes generated by the whole agricultural unit will be appropriately managed both on and off-site. 2. Anaerobic digestion will be supported where its use is to manage only natural wastes generated primarily on the agricultural unit within which it is located. 3. All proposals for livestock unit(s) and anaerobic digestion and any other waste management proposals on agricultural holdings within the River Wye SAC or the River Clun SAC will be required to demonstrate at least nutrient neutrality.”
“Includes a variety of substances such as pesticides containers, oil and silage wrap, as well as slurry which result from activities including horticulture, fruit growing, dairy farming, livestock breeding, seed growing, grazing and nurseries.”
“The feature is not being conserved, and will not reach favourable condition, unless there are changes to the management or external pressures and this is reflected in the results of monitoring over time; with at least one of the mandatory attributes not meeting its target (as set out in the site specific FCT) with the results not moving towards the desired state. The longer the feature remains in this poor condition, the more difficult it will be, in general, to achieve recovery.”
“2.4.1 As recognised at paragraph 2.6.30 of the Preparing the Draft Plan Report 2018, it is unusual to include a policy relevant to agricultural waste within a development plan document; however, ‘it is relevant here as Herefordshire is a unitary authority that has a strong agricultural sector.’”
“(6) The first objective of any waste policy should be to minimise the negative effects of the generation and management of waste on human health and the environment. Waste policy should also aim at reducing the use of resources, and favour the practical application of the waste hierarchy. … (8) It is therefore necessary to revise Directive 2006/12/EC in order to clarify key concepts such as the definitions of waste, recovery and disposal, to strengthen the measures that must be taken in regard to waste prevention, to introduce an approach that takes into account the whole life-cycle of products and materials and not only the waste phase, and to focus on reducing the environmental impacts of waste generation and waste management, thereby strengthening the economic value of waste. Furthermore, the recovery of waste and the use of recovered materials should be encouraged in order to conserve natural resources. In the interests of clarity and readability, Directive 2006/12/EC should be repealed and replaced by a new directive. … (22) There should be no confusion between the various aspects of the waste definition, and appropriate procedures should be applied, where necessary, to by-products that are not waste, on the one hand, or to waste that ceases to be waste, on the other hand. In order to specify certain aspects of the definition of waste, this Directive should clarify: - when substances or objects resulting from a production process not primarily aimed at producing such substances or objects are by-products and not waste can be taken only on the basis of a coordinated approach, to be regularly updated, and where this is consistent with the protection of the environment and human health. If the use of a by-product is allowed under an environmental licence or general environmental rules, this can be used by Member States as a tool to decide that no overall adverse environmental or human health impacts are expected to occur; an object or substance should be regarded as being a by-product only when certain conditions are met. Since by-products fall into the category of products, exports of by-products should meet the requirements of the relevant Community legislation; …”
“faecal matter, if not covered by paragraph 2(b), straw and other natural non-hazardous agricultural or forestry material used in farming, forestry or for the production of energy from such biomass through processes or methods which do not harm the environment or endanger human health.”
“1. A substance or object, resulting from a production process, the primary aim of which is not the production of that item, may be regarded as not being waste referred to in point (1) of Article 3 but as being a by-product only if the following conditions are met: (a) further use of the substance or object is certain; (b) the substance or object can be used directly without any further processing other than normal industrial practice; (c) the substance or object is produced as an integral part of a production process; and (d) further use is lawful, i.e. the substance or object fulfils all relevant product, environmental and health protection requirements for the specific use and will not lead to overall adverse environmental or human health impacts.”
“Member States shall take the necessary measures to ensure that waste management is carried out without endangering human health, without harming the environment and, in particular: (a) without risk to water, air, soil, plants or animals; (b) without causing a nuisance through noise or odours; and (c) without adversely affecting the countryside or places of special interest.”
“60. As the Spanish Government correctly maintains, livestock effluent may, on the same terms, fall outside classification of waste, if it is used as soil fertiliser as part of a lawful practice of spreading on clearly identified parcels and if its storage is limited to the needs of those spreading operations. 61. Contrary to the Commission’s submissions, it is not appropriate limit that analysis to livestock effluent used as fertiliser on land forming part of the same agricultural holding as that which generated the effluent. As the Court has already held, it is possible for a substance not to be regarded as waste within the meaning of Directive 75/442 if it is certain to be used to meet the needs of economic operators other than that which produced it (see, to that effect, Saetti and Frediani…) … 65. In this case, as regards, first, the slurry generated by the livestock farms, it is clear from the contents of this case-file that the slurry is used as an agricultural fertiliser in the context of rules for spreading in accordance with good agricultural practice laid down by the Autonomous Community of Catalonia. The persons running those farms are not therefore seeking to discard it, with the result that the slurry is not ‘waste’ within the meaning of Directive 75/442.”
“43. In light of the guidance provided by the case law as set out above, it must be held that effluent generated by an intensive pig farm, which is not the product primarily sought by the pig farmer and any recovery of which by spreading as fertiliser must, as is apparent in particular from the sixth recital in the preamble to Directive 91/676 and the mechanism established by that directive, involve the taking of special precautions owing to the potentially hazardous nature of its composition from an environmental point of view, is, in principle, waste (see, by analogy, Commission v Italy (C-194/05)[2007] ECR I-11661 at [35] and the case law cited, and Commune de Mesquer[2008] 3 CMLR 16 at [41]). 44. However, it is also clear from the case law of the Court that, in certain situations, goods, materials or raw materials resulting from an extraction or manufacturing process, the primary aim of which is not their production may be regarded not as a residue, but as by-products, which their holder does not seek to “discard”, within the meaning of the first subparagraph of art.1(a) of Directive 75/442, but which he intends to exploit or market on terms advantageous to himself in a subsequent process – including, as the case may be, in order to meet the needs of economic operators other than the producer of those substances – provided that such re-use is not a mere possibility but a certainty, without any further processing prior to re-use and as part of the continuing process of production (see, inter alia, Commission of the European Communities v Spain (C-121/03)[2005] ECR I-7569 at [58]; Commission v Italy (C-194/05)[2007] ECR I-11661 at [38] and Commune de Mesquer[2008] 3 CMLR 16 at [42]). 45. As regards, more specifically, livestock effluent such as that at issue here, the Court has already held that it may fall outside classification as waste if it is used as soil fertiliser as part of a lawful practice of spreading on clearly identified parcels and if its storage is limited to the needs of those spreading operations (Commission v Spain (C121-03)[2005] ECR I-7569 at [60]). 46. The Court has also stated that it is not appropriate to limit that analysis to livestock effluent used as fertiliser on land forming part of the same agricultural holding as that which generated the effluent. It is possible for a substance not to be regarded as “waste” within the meaning of Directive 75/442 if it is certain to be used to meet the needs of economic operators other than the operator which produced it (Commissioner v Spain (C121/03)[2005] ECR I-7569 at [61]). 47. It is for the national courts, taking account of the guidance provided by the Court’s case law and all of the circumstances of the situation on which they have to give judgment, to determine whether a by-product actually exists, while ensuring in this regard that classification as a by-product is limited to the situations that fulfil the conditions recalled in [44] of the present judgment. 48. So far as concerns determining that the re-use of the slurry stored pending spreading is sufficiently certain, it is to be pointed out first of all that, as follows from the case law recalled in [45] and [46] of the present judgment, the mere fact that such re-use will not, as a matter of fact, become absolutely certain until the spreading operations envisaged have in fact taken place through action by the third-party purchasers concerned does not preclude classification as a by-product. 49. What subsequently happens to an object or a substance is not in itself determinative of its nature as waste, which, in accordance with art.1(a) of Directive 75/442, is established on the basis of whether the holder of that object or substance discards it or intends or is required to discard it (Commission v Italy (C-194/05)[2007] ECR I-11661 at [49] and [50] and the case law cited). 50. It should indeed be pointed out in this regard that, if the referring court were to come to the conclusion that the re-use of the slurry envisaged by Mr Brady is, in this instance, sufficiently certain for the slurry to be considered, while stored by him and until it is actually delivered to the relevant third parties, a by-product which the person concerned seeks not to “discard” within the meaning of the first subparagraph of art.1(a) of Directive 75/442 but to exploit or market, that would not at all affect the fact that the slurry may, in some circumstances, become waste after its delivery, in particular if it were to become apparent that it is ultimately discharged by those third parties into the environment in an uncontrolled manner, in conditions which enable it to be regarded as waste (see, to this effect, Commission v Spain (C-416-02)[2005] ECR I-7487 at [96]). 51. In such a case, account should be taken of the fact that, according to the Court’s case law, the person who is in fact in possession of products immediately before they become waste must be regarded as having “produced” that waste within the meaning of art.1(b) of Directive 75/442 and thus be categorised as its “holder” within the meaning of art.1(c) of that directive (see, in particular, Commune de Mesquer[2008] 3 CMLR 16 at [74]). 52. For the purposes of determining whether the re-use of the slurry through spreading by other farmers, as envisaged by the appellant in the main proceedings, is sufficiently certain to justify its storage for a period other than the necessary for its collection with a view to disposal, it is incumbent, on the other hand, on the referring court, as is apparent from the case law recalled in [45] of the present judgment, to satisfy itself, in particular, that the plots of land of those farmers on which that re-use is to take place are, from the outset, clearly identified. Such identification is capable of showing that the quantities of slurry to be delivered are in principle actually intended to be used for the purpose of fertilising the plots of land of the farmers concerned.”
“2.4.4 Processes which do not harm the environment or endanger human health The provision ‘not harming the environment or endangering human health’ applies to the entire paragraph, namely any use of the specified materials in agriculture or forestry, as well as their use to produce energy. The minimum standard for not harming the environment or endangering human health is compliance with the standards of EU environmental legislation.”
“105. Firstly, in my view the claimant and the defendant are right to emphasise the importance of the purpose of these regulations, widely advertised in the consultation materials and also explained in the Explanatory Note, to reduce diffuse agricultural pollution giving rise to significant risks of deterioration in water quality by avoiding the risks of application of nutrients surplus to requirements of the soil and crop leaching or running off and giving rise to diffuse pollution. In principle, the furtherance of that purpose is more likely to be achieved by planning for the needs of the soil and crop on the land at the time when the application is to take place. It is more likely to be furthered as an objective on the basis of known soil and crop needs at the time of the application, rather than forecast or potential crop needs that might arise from some future notional but as yet unimplemented crop cycle or rotation. Interpretating Regulation 4(1)(a)(i) of the 2018 Regulations in this way is in my view consistent with the clear purpose of enacting this legislation, to ensure that applications of organic manure or manufactured fertiliser are tailored to the known and established needs of the existing soil and crops so as to avoid the risks of overprovision and subsequent leaching or run-off of unabsorbed nutrients into water courses giving rise to environmental damage. Thus, it is clear in my view that the purpose of the regulation supports the claimant and the defendant's interpretation.”
“194. The focus of planning policies and decisions should be on whether proposed development is an acceptable use of land, rather than the control of processes or emissions (where these are subject to separate pollution control regimes). Planning decisions should assume that these regimes will operate effectively. Equally, where a planning decision has been made on a particular development, the planning issues should not be revisited through the permitting regimes operated by pollution control authorities.”
“It is never appropriate for a waste local plan to impose controls on activities that produce or use such “waste” as it cuts against the definition of waste as prescribed by law”
“[A] local planning authority is entitled to place reliance upon the effective operation of the other regulatory regime(s) in determining an application for planning permission. However, it cannot simply ignore the issues in question. It must assess them sufficiently so as to be able to satisfy itself that the other regulatory regime is capable of regulating the relevant issues. If it is not satisfied, then consent must be refused. The existence of the other regulatory regime is a material planning consideration, to be weighed in the balance. Gateshead MBC v Secretary of State for the Environment 1995 Env. LR 37 at [44] & [49] and R(Bailey) v Secretary of State for Business, Enterprise & Regulatory Reform[2008] EWHC 1257 (Admin) at [13]).”
“The power to impose conditions is not unlimited. In Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government [1958] 1 Q.B. 554 Lord Denning said, at p. 572: "Although the planning authorities are given very wide powers to impose ' such conditions as they think fit,' nevertheless the law says that those conditions, to be valid, must fairly and reasonably relate to the permitted development. The planning authority are not at liberty to use their powers for an ulterior object, however desirable that object may seem to them to be in the public interest." As Lord Reid said in Mixnam's Properties Ltd. v. Chertsey Urban District Council [1965] A.C. 735 , 751, this statement of law was approved by this House in Fawcett Properties Ltd. v. Buckingham County Council [1961] A.C. 636 . “It follows that the conditions imposed must be for a planning purpose and not for any ulterior one, and that they must fairly and reasonably relate to the development permitted. Also they must not be so unreasonable that no reasonable planning authority could have imposed them.”
“[t]o accompany all development proposals, applicants will be required to demonstrate the approach to farming within that agricultural unit that contributes to achieving at least nutrient neutrality. The approach may take more than one form and might comprise either physical works and/or changes to the farming method within that unit.”
“41. By contrast, Mr Crean QC did accept that it had been permissible for the explanatory text accompanying HOU13 to supply a definition of “affordable housing”
“16. Leaving aside the effect of the saving direction, it seems to me, in the light of the statutory provisions and the guidance, that when determining the conformity of a proposed development with a local plan the correct focus is on the plan's detailed policies for the development and use of land in the area. The supporting text consists of descriptive and explanatory matter in respect of the policies and/or a reasoned justification of the policies. That text is plainly relevant to the interpretation of a policy to which it relates but it is not itself a policy or part of a policy, it does not have the force of policy and it cannot trump the policy. I do not think that a development that accorded with the policies in the local plan could be said not to conform with the plan because it failed to satisfy an additional criterion referred to only in the supporting text. That applies even where, as here, the local plan states that the supporting text indicates how the polices will be implemented.”
“Question 102: What are the reasons for requiring assessment of wastes from the whole agricultural unit in the case of EIA development? Response: 102.1 The management of agricultural wastes, particularly those that contribute phosphates to the River Wye SAC catchment, is a key issue within Herefordshire. 102.2 The requirement to extend the waste management method statement across the whole agricultural unit in the case of EIA development is providing a clear and proportionate threshold for the scale of assessment required. If the proposed development at the agricultural unit is EIA development, then it is very likely to constitute major development and can be reasonably concluded to have a more significant impact. Consequently it is considered appropriate to extend the need for a waste management method statement across the whole unit and not just in relation to the proposed development. 102.3 In short, it provides a reasonable opportunity to have a greater impact bringing forward nutrient neutrality solutions from the agricultural sector.”
“Minerals and Waste Local Plan Agricultural Waste Para 7.2.27 and 7.2.28 We offer support to the references made here. This includes a waste management method statement to be submitted with all applications for livestock unit(s) on agricultural holdings, and the agricultural sector contributing to achieving at least nutrient neutrality. “It is important that the agricultural sector makes a real contribution to achieving at least nutrient neutrality, if not betterment, in the River Wye SAC. This reference is welcomed and encouraged.”
“Summary Natural England (“NE”) advise that the nutrient neutrality (“NN”) requirement should be removed from policies W4 Wastewater management and M3, M4 and M5 on minerals workings. We agree with requiring NN in policy W3 Agricultural waste, and note the council’s decision to apply this across the Wye catchment. Since discussions regarding the plan in July 2021, NE’s position on NN has moved on. NN has emerged as a way to mitigate the impacts of residential development in ‘failing’ catchments. Housing developers can calculate their phosphate (or nitrogen) output using a simple calculator and offset that. In April 22, NE rolled this out as a national approach across ‘failing’ Habitats sites catchments in England. Herefordshire Council is also currently developing a calculator for agricultural applications, through its Agriculture SPD. There are concerns that applying NN to matters other than these would not be possible, and also is not appropriate and could risk undermining the national approach. … W3 Agricultural Waste Management We are satisfied that nutrient neutrality is more appropriate here and satisfies with the changes put forward in the main modifications. Applying nutrient neutrality across the Wye catchment Regarding the Council’s paper on Nutrient neutrality – approach in the MWLP; if the council wishes to take this approach then this is the council’s decision. As a part of your evidence you may wish to speak to the Environment Agency as there have been some exceedances seen on the Wye very recently.”
“Nutrient neutrality The River Wye SAC Natural England’s nationally developed approach to nutrient neutrality only applies to residential developments in catchments that are failing their water quality objectives for nutrients. The application of nutrient neutrality across the whole of the River Wye SAC catchment in Herefordshire as opposed to solely to the parts of the SAC which are failing their water quality objectives for nutrients has not been advised by NE. The decision to apply a nutrient neutrality approach across the Wyte catchment in its entirety has been taken by Herefordshire Council. The application of nutrient neutrality to developments other that residential type has also been taken by Herefordshire Council. Natural England acknowledges that it is a priority for Herefordshire Council to ensure that the quality of the watercourses in the Wye SAC catchment are not further degraded by nutrient pollution from new developments. The River Clun SAC The plan includes numerous new references to the River Clun SAC and requires nutrient neutrality in the Clun catchment. We advise that development in the River Clun SAC catchment cannot currently rely on nutrient neutrality to meet with the requirements of the Habitats Regulations. Due to the River Clun SAC being so far above its targets for phosphates, nitrates and suspended solids, using pollution reduction measures to deliver nutrient neutrality rather than site restoration could undermine the ability to restore the site.”
“9(4) A competent authority is entitled, and can be expected, to give significant weight to the advice of an "expert national agency" with relevant expertise in the sphere of nature conservation, such as Natural England (see the judgment of Sales L.J. in Smyth , at paragraph 84, and the first instance judgment in R. (on the application of Preston) v Cumbria County Council[2019] EWHC 1362 (Admin) , at paragraph 69 ). The authority may lawfully disagree with, and depart from, such advice. But if it does, it must have cogent reasons for doing so (see the judgment of Baroness Hale in R. (on the application of Morge) v Hampshire County Council [2011] 1 W.L.R. 268, at paragraph 45 , the judgment of Sales L.J. in Smyth , at paragraph 85, and the first instance judgment in R. (on the application of Prideaux) v Buckinghamshire County Council [2013] Env. L.R. 32, at paragraph 116 ). And the court for its part will give appropriate deference to the views of expert regulatory bodies (see, for example, the judgment of Lord Justice Beatson in R. (on the application of Mott) v Environment Agency [2016] 1 W.L.R. 4338, at paragraphs 69 to 77 ).”
“There was also discussion with NE about the geographic area over which the test of achieving ‘at least nutrient neutrality’ could be extended. NE’s position was that this test can only be applied in projects that would link to a SAC catchment that was failing its water quality objectives. The Council considers that the approach in the MWLP of requiring nutrient neutrality from development proposals with the River Wye SAC generally, should be retained. This is because the upper River Wye SAC catchment (above its confluence with the River Lugg) has been close to failing its water quality objectives in recent years and the Plan seeks to play a material role in reducing nutrient release into the River Wye SAC in its totality.”
“Publication of a local plan 19. Before submitting a local plan to the Secretary of State under section 20 of the Act, the local planning authority must— … (b) ensure that a statement of the representations procedure and a statement of the fact that the proposed submission documents are available for inspection and of the places and times at which they can be inspected, is sent to each of the general consultation bodies and each of the specific consultation bodies invited to make representations under regulation 18(1).”
“20 Independent examination … (5) The purpose of an independent examination is to determine in respect of the development plan document— (a) whether it satisfies the requirements of sections 19 and 24(1), regulations under section 17(7) and any regulations under section 36 relating to the preparation of development plan documents; (b) whether it is sound; and (c) whether the local planning authority complied with any duty imposed on the authority by section 33A in relation to its preparation. (6) Any person who makes representations seeking to change a development plan document must (if he so requests) be given the opportunity to appear before and be heard by the person carrying out the examination.”
“Policy W3: Agricultural waste management 1. Planning permission for agricultural development will be permitted where it is demonstrated that: a. for non-EIA development, both natural and non-natural wastes generated by the proposed development will be appropriately managed both on and off-site; or b. for EIA development, both natural and non-natural wastes generated by the whole agricultural unit will be appropriately managed both on and off-site. 2. Anaerobic digestion will be permitted where its use is primarily intended to manage natural wastes generated on the agricultural unit within which it is located.” … Agricultural Waste 7.2.10. Herefordshire is a large, predominantly rural county; the agriculture and food/drink processing sector are recognised to have a large influence on waste arising. Whilst natural agricultural waste is not usually appropriate as a matter for a waste local plan, due to the local distinctiveness of Herefordshire, policy W3 has been prepared to address both natural and non-natural agricultural wastes.”
“Detailed comments: Page 3-5. As raised above the paragraph relating to agricultural wastes should be clarified in order to make it clear that manures, slurries and some crop residues are not classed as wastes. Page 7-5. In paragraph 7.2.10 you note that natural agricultural waste is not usually an appropriate matter for a waste local plan. As agricultural manures are excluded from the Waste Framework Directive references to them within this plan should be removed. The use and application of agricultural manures and slurries are separately regulated by the Environment Agency under a variety of legal frameworks, these would include Nitrate Vulnerable Zones and Farming Rules for Water to name just two. Therefore the addition of manures and slurries to the Waste Local Plan is an unnecessary duplication of existing regulation. … It may also be considered unreasonable, in light of NPPF Para 35(a-d) to expect that all developments within the Wye SAC deliver a net reduction in nutrient discharges, particularly if they do not fall within the parameters of the guidance set out by Natural England. Permitted development as well as other developments outside of the SAC would not normally be required to demonstrate nutrient neutrality.”
“We are concerned that the requirements within this document, particularly Policy W3: Agricultural Waste Management, will curtail the industry’s ability to replace aging infrastructure and invest in buildings that enable them to reduce phosphate losses to water e.g. new livestock housing and manure stores. Furthermore, while the NFU supports the use of waste management plans we would challenge the categorisation of slurry and manure as a waste product. The plan itself acknowledges this in para 7.2.11 “Whilst natural agricultural waste is not usually appropriate as a matter for a waste local plan, due to local distinctiveness of Herefordshire, policy W3 has been prepared to address both natural and non-natural agricultural wastes.”
“Thank you for your letter of22 December 2022 . We note your comment that Herefordshire Council only recently raised the content of the Minerals and Waste Local Plan Publication Draft with yourselves, but the Council’s records indicate that the NFU was consulted on12 April 2021 . Unfortunately we cannot take your letter into account in the examination because it was received after the consultation had closed. However, there will be consultation on main modifications to the Plan in the coming months and the NFU will have the opportunity to comment …”
“manures and slurries are not a ‘waste’ and should not be considered as such. It is not legally correct for the Plan to refer to manures and slurries as ‘waste’ as it contravenes national policy and also contravenes national legislation.”, and “[T]he whole of the River Wye SAC is not at this time subject to the requirements or restrictions of nutrient neutrality or the conditions of such designations.”
“83. Within the River Wye SAC, the River Lugg, is failing its conservation objectives because of nutrient loading. The River Clun SAC is also in unfavourable condition, being well above its targets for phosphates, nitrates and suspended solids. The River Wye, above its confluence with the River Lugg, is not currently failing its conservation objectives, but the Council has concerns that there is potential for this to happen on the basis of nutrient discharge. The condition of these designated sites and the potential for further harm to occur justifies the approach taken in the key development criteria for some of the allocated mineral sites which require that proposals demonstrate at least nutrient neutrality.”
“110. The Council has advised that it is producing a new Herefordshire Local Plan, which will replace the Core Strategy when it is adopted. The Council will need to signpost this policy in that Local Plan and in advice to developers of livestock units as its location within the Minerals and Minerals and Waste Plan will not be immediately apparent to promoters of such development. Policy W3 requires amendment to clearly state the requirement for waste management method statements. 111. NE’s advice is that where there is only a limited pool of measures available for addressing targets, these should be used to bring the designated site into favourable condition rather than enabling growth. This advice is directed primarily at housing development rather than waste development. 112. There would be a need for HRA of proposals affecting European designated sites and site-specific mitigation measures could be employed to demonstrate no adverse effect. The extent to which site restoration measures could be relied upon would vary according to individual circumstances, and the provision of site-specific measures would not necessarily undermine the restoration of sites. 113. Because agricultural related waste is a significant contributor to nutrient discharges it is necessary to include a requirement in Policy W3 for each proposal, but not the entire agricultural holding, to demonstrate nutrient neutrality. The policy needs to be clear as to this requirement. MM64 provides all the necessary modifications to the policy which are required for effectiveness. The deletion of the word “betterment” and its replacement with “at least nutrient neutrality” has been agreed between the Council and NE. A requirement for all proposals to demonstrate betterment has not been justified. This does not mean that individual proposals cannot aim to achieve betterment or that this would not be taken into account as a material consideration in planning applications.”
“MM64 (Policy W3) - We are concerned that the requirements within this document, particularly Policy W3: Agricultural Waste Management, will curtail the industry’s ability to implement infrastructure upgrades and improvements. Preventing such investments will minimise any efforts to reduce phosphate losses to water, reduce ammonia emissions, and other environmental, animal health and welfare benefits associated with upgrading infrastructure. e.g., new livestock housing, manure and slurry stores. The proposed modification removes the reference to betterment as was previously stated. This is not a sound modification to put in place as it will in fact do the opposite to what this plan is intending to achieve by hindering environmentally impactful improvements from being adopted, rather than being able to upgrade any aging infrastructure to newer buildings that are built with environmental benefits in place, which are able to meet the demands of our changing climate, buildings will have to remain as they are. This modification will therefore result in a negative impact on the environment as potential for beneficial improvements will be forgone. Betterment – For agricultural businesses across England, the ability to have the consideration of betterment taken into account when submitting a planning application is vital. In cases where improvements to existing housing, manure/ slurry storage and livestock handling facilities is possible, the ability to do so can aid the delivery of significant environmental benefits which in many cases, such as the Slurry Infrastructure Grant (SIG), exceed current regulatory requirements. Where betterment falls short of achieving a perceived and acceptable level of risk reduction, as exemplified by nutrient neutrality, we would ask that due consideration of the proposed significant reductions are considered rather than rejected to avoid forgoing what in many cases can be a significant improvement. The NFU is working with Natural England and the Environment Agency to develop improved guidance on betterment that will support the delivery of significant improvements on farm, which also support national ambitions to protect the environment. Regulatory compliance: Agricultural businesses are, in some cases, required to implement improvements, adaptations or remedial work on existing infrastructure in line with the Environment Agency’s (EA) advice led approach to enforcement to promote compliance with agriculture regulations such as SSAFO. This policy indirectly contradicts the EA’s statutory duty to enforce compliance by preventing the implementation of improvements. Article 84.b of the National Planning Policy Framework states that - Planning policies and decisions should enable: b) the development and diversification of agricultural and other land-based rural businesses. Per our understanding of this policy, the proposed views of this document will directly contravene this framework in lieu of any ability to apply consideration of betterment to provide a reasonably practicable method of meeting planning policy requirements, which would support the development and diversification of agricultural businesses. Furthermore, this modification is not justified as it goes so far as to completely contradict the ambitions of Government funded grants such as Countryside Stewardship and the Slurry Infrastructure Grant. These grants are intended to enable farm businesses to deliver environmental improvements and therefore public benefit through the improvement of existing on farm facilities. The application of this approach has the potential to directly hinder the progression of the local agricultural businesses and wider economic development. Positively prepared – The plan in its current state prevents applicants from fulfilling the environmental objectives of sustainable development as set out in in Para. 8 of the NPPF (2021): Applicants must be able to carry out sustainable development so that they can minimise pollution, whilst mitigating and adapting to climate change, all forming part of the move towards a low carbon economy. The plan will not allow for farming, a large part of Herefordshire’s land use to do this, and is based on short-term, rather than long term evidence of what the sector can provide to reduce pollution. As previously stated in this response, the plan grossly misidentifies slurry and manure as purely a waste product and not realising the environmental benefits that proper management can provide. Existing livestock units may not be able to demonstrate nutrient neutrality, but this should not stop them from accessing grants. In addition, grants such as the Slurry Infrastructure Grant have profound benefits for reducing the likelihood of any phosphate run off as it enables farms to expand, replace or build additional purpose built slurry storage facilities which have been designed to ensure no leaching can occur. Defra has recently launched a further£10 million grant which is available for cattle farmers to upgrade existing buildings. The modification proposed is therefore neither justified or effective as it could completely preclude Herefordshire farmers from accessing the grant. We would like to clarify the planner’s definition of waste for the context of these amendments. It is extremely difficult to assess the requirement to demonstrate nutrient neutrality when it is our understanding that many of the 'wastes' in agricultural production referred to in this document are not legally classed as waste. For example, manure and slurry are not wastes when used directly to improve soil or support crop growth on agricultural land. The reason for this is that animal faeces are a by-product of keeping animals and make up a traditional fertiliser where other fertilisers may be regarded as a substitute. Furthermore, while the NFU supports the use of waste management plans we would challenge the categorisation of slurry and manure as a waste product. The plan itself acknowledges this in para 7.2.11 “Whilst natural agricultural waste is not usually appropriate as a matter for a waste local plan, due to the local distinctiveness of Herefordshire, policy W3 has been prepared to address both natural and non-natural agricultural wastes.”
“3. Proposals will be supported where they can demonstrate betterment of nutrient discharges within the River Wye SAC and the River Clun SAC or, demonstrate a contribution towards nutrient neutrality within the River Lugg SAC catchment and River Clun SAC.”
“6.9. The precise arrangements for public consultation will vary from case to case but will follow these general principles: • it will be made clear that the consultation is only about the proposed MMs and any policies map changes (and no other aspect of the plan), that they are put forward without prejudice to the Inspector’s final conclusions, and that all representations made will be taken into account by the Inspector; • the consultation document will include all the proposed MMs, making no distinction between those originally proposed by the LPA and those proposed by the Inspector or others; • if the LPA wish to include additional modifications in the consultation document, they should be clearly distinguished from the MMs and it should be made clear that they are not before the Inspector for consideration; • the nature and duration of the consultation should reflect that of the consultation held at Regulation 19 stage, where appropriate. This means it should last at least six weeks.”
“26. The public examination of a plan is not an Inquiry into objections raised by individual parties. The Planning Inspectorate’s document “Procedural Practice in the Examination of Local Plans” makes that clear. The examination is structured around the issues which the Inspector has identified as crucial for his judgment on the soundness of the plan. It alerts parties to the Inspector’s proactive and inquisitorial role; representations do not dictate the structure or focus of the examination. If contentions do not assist him to reach a judgment on the soundness of the plan, he will not spend time at the hearings on them. The hearings are only part of his examination of the soundness of the plan.”
“[t]he use and application of agricultural manures and slurries are separately regulated by the Environment Agency under a variety of legal frameworks, these would include Nitrate Vulnerable Zones and Farming Rules for Water to name just two. Therefore the addition of manures and slurries to the Waste Local Plan is an unnecessary duplication of existing regulation.”
“[w]e are also concerned if one element of a farming enterprise is to change, the whole holding is to demonstrate nutrient neutrality which is disproportionate to the proposal”
“[g]enerally at least, the reasons provided by an inspector’s report on the examination of a local plan may well satisfy the required standard if they are more succinctly expressed than the reasons in the report or decision letter of an inspector in a s.78 appeal against the refusal of planning permission.”