Judicial review appeal regarding a cattle shed and agricultural building extension dismissed

31st January 2023


Legal ALAMY E99 A4 P

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Author

Cedrec

In R. (on the application of Sahota) v Herefordshire Council the objector appealed against a refusal of a judicial review claim of the local authority’s decision to grant planning permission to erect a cattle shed and extend an agricultural building.

The appellant objected to the proposed development because it contemplated the expansion of livestock farming which would increase manure production and the spreading of manure on surrounding fields, which would run off into nearby watercourses. This included the River Wye, which is a Special Area of Conservation (SAC) and a Site of Special Scientific Interest (SSSI).

The planning officer had sought advice from an ecology officer (B). His written advice claimed the floor area of the cattle shed fell below the trigger sizes for air pollution emissions as identified in Natural England’s SSSI Impact Risk Zone data set, so no detailed air emissions assessment was required, and no likely significant effects on any relevant SSSI were identified.

The officer’s report included B’s advice and stated as the site was outside the River Wye’s SAC there were no other triggers for a Habitat Regulations Assessment (HRA) process, and no likely significant effects on any other relevant SSSI. The planning committee found no need to conduct an HRA on the basis of the officer’s advice and granted planning permission.

Under the Conservation of Habitats and Species Regulations 2017, a competent authority is required to make an “appropriate assessment” of a plan’s implications in view of its conservation objectives.

At the judicial review hearing, the judge admitted B’s witness statement explaining his advice, and dismissed the judicial review claim on its merits. The appellant submitted the judge had erred in admitting B’s evidence, and the officer’s report had misled the planning committee into believing an HRA was not required.

The court could decide whether to admit evidence that came into existence after the decision under review had been made, as a means of correcting, or adding, to the reasons for it. Evidence directly in conflict with the record of the decision-making would not generally be admitted. The question was whether the evidence was confirmation not contradiction. Even when the evidence was merely explanatory, the court must ask itself whether it would be legitimate to admit the explanation. The judge had not fallen into error as a matter of principle and his conclusion had been reasonably open to him.

The question for the court was whether, on a fair reading of the entire report, the officer had materially misled the committee on a matter bearing on their decision, and the error went uncorrected before the decision was made. A competent authority was entitled and expected to give significant weight to the advice of an expert national agency with relevant expertise in nature conservation, such as Natural England. Although the authority could lawfully disagree with, and depart from, such advice, it had to have strong reasons for doing so. The court would give appropriate consideration to views of expert regulatory bodies.

B’s witness statement made it clear there were no relevant effects of the proposed development on the River Wye’s SAC, whether taken in isolation or in combination with other plans or projects. The appellant’s real complaint was B’s advice was wrong, but he had to show there were public law grounds which would entitle the court to intervene by way of judicial review, in particular a demonstrable error in the reasoning process, or the conclusion was irrational. The appeal was dismissed.

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