Factual and Procedural Background
This case concerns a challenge to the lawfulness of Policy W3 of the Herefordshire Minerals and Waste Local Plan ("MWLP") brought by the Claimants, the National Farmers Union ("NFU"). The First Defendant is the unitary Local Planning Authority for Herefordshire ("LPA"), and the Second Defendant is the Secretary of State ("SoS") who found the Plan to be sound, subject to recommended Main Modifications. The Intervener, River Action UK, is a non-governmental organisation focused on river water quality in the United Kingdom.
The NFU, representing the farming industry, contends that Policy W3 adversely impacts agriculture in Herefordshire. The Intervener campaigns against river pollution, particularly concerning nutrient run-off from Industrial Poultry Units ("IPU") and chicken manure affecting river quality.
Policy W3 requires waste management method statements for livestock units on agricultural holdings and mandates nutrient neutrality demonstrations for developments within certain Special Areas of Conservation ("SACs"). The plan aims to address serious water quality issues in the Rivers Wye, Lugg, and Clun SACs, which have experienced declining conservation status due to nutrient pollution primarily from agriculture.
The procedural history includes multiple consultation stages: initial consultations in 2017-2019, a regulation 18 consultation in early 2019 where NFU responded, a regulation 19 consultation in 2021 where NFU was not consulted due to an error, examination hearings in late 2022, and consultation on Main Modifications in mid-2023. The Inspectors' Report was issued in October 2023, and the Plan was adopted in March 2024.
Legal Issues Presented
- Whether Policy W3 unlawfully extends beyond the statutory definition of "waste" under the Planning Acts and Waste Framework Directive ("WFD").
- Whether the extension of policy requirements to the entire agricultural unit is lawful under the principles established in Newbury v Secretary of State [1981] AC 578.
- Whether the nutrient neutrality requirements imposed by Policy W3 are irrational or unsupported by Natural England's advice.
- Whether the failure to consult the NFU at the regulation 19 stage caused substantial prejudice.
- Whether the Inspectors provided legally adequate reasons on principal important controversial issues, including the scope of agricultural waste and duplication with other regulatory controls.
Arguments of the Parties
Appellant's Arguments (NFU)
- Agricultural activities generally fall outside planning control and are extensively regulated by other statutory regimes; Policy W3 improperly seeks to regulate agricultural waste, including manure, which is not "waste" as defined by law.
- The policy unlawfully extends regulation to the whole agricultural unit, which is irrelevant to planning permission and constitutes an improper extension beyond the development site.
- The nutrient neutrality requirement is applied beyond the geographic area advised by Natural England and is inconsistent with national guidance.
- The NFU was not consulted at the regulation 19 stage, causing substantial prejudice by depriving them of the opportunity to fully participate in the Examination and raise soundness concerns.
- The Inspectors failed to provide adequate reasons addressing key controversial issues such as the definition of waste and duplication with existing environmental controls.
Respondents' Arguments (LPA, SoS, Intervener)
- The LPA lawfully included Policy W3 within the MWLP; the plan is not confined strictly to the statutory definition of waste and may address broader environmental concerns.
- The requirement for waste management statements across the whole agricultural unit for EIA developments is rational and proportionate given the scale and environmental impact of such developments.
- The nutrient neutrality requirements are justified and supported by evidence of continuing environmental harm, despite existing regulatory regimes.
- The procedural error of not consulting NFU at regulation 19 stage did not cause substantial prejudice as NFU had multiple opportunities to raise their concerns at other stages.
- The Inspectors' Report and accompanying documentation provided legally adequate reasons addressing the key issues raised by NFU.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Newbury v Secretary of State [1981] AC 578 |
Limits on planning conditions: conditions must fairly and reasonably relate to the permitted development and not be imposed for an ulterior purpose. |
Applied to assess whether Policy W3's requirements relating to the whole agricultural unit were lawful; court found no unlawful extension or ulterior purpose. |
| Commission v Spain [C-121/03] |
Interpretation of "waste" under the Waste Framework Directive, specifically regarding livestock effluent used as fertiliser. |
Used to clarify that slurry used as fertiliser in lawful spreading practices is not "waste"; relevant to defining agricultural waste under Policy W3. |
| Brady v Environmental Protection Agency [C-113/12] |
Clarification of by-product status and when livestock effluent is classified as waste, emphasizing certainty of reuse and environmental harm. |
Applied to evaluate whether chicken manure is "waste" or by-product; court accepted policy's forward-looking approach given uncertainty of reuse and potential environmental harm. |
| R (Wyatt) v Fareham BC [2023] PTSR 1952 |
Weight to be given to expert agency advice and requirement for cogent reasons when departing from such advice. |
Referenced in relation to Natural England's advice on nutrient neutrality and the LPA's decision to extend requirements beyond Natural England's specific advice. |
| South Buckinghamshire DC v Porter [2004] UKHL 33 |
Standard for adequacy of reasons in planning decisions. |
Guided the court's assessment of whether Inspectors gave legally adequate reasons on key issues. |
| Cooper Estates Strategic Land Limited v Royal Tunbridge Wells Borough Council [2017] EWHC 224 (Admin) |
Role of Inspectors in plan examination as inquisitorial, and scope of representations. |
Supported conclusion that the NFU had ample opportunity to raise issues and that the Inspectors' focus was appropriate. |
| R (River Action) v Environment Agency [2024] EWHC 1279 (Admin) |
Evidence on the effectiveness of regulatory regimes addressing nutrient pollution. |
Supported the view that existing regulatory regimes have not prevented environmental harm, justifying Policy W3's approach. |
| Vanbrugh Court Residents' Association v London Borough of Lambeth [2022] EWHC 1207 (Admin) |
Planning authorities must assess whether other regulatory regimes effectively regulate relevant issues. |
Supported argument that the LPA cannot assume other regulatory regimes prevent environmental harm without evidence. |
| R (Cherkley Campaign) v Mole Valley DC [2014] EWCA Civ 567 |
Supporting text to a policy can aid interpretation but does not have the force of policy and cannot impose additional requirements. |
Applied in assessing whether paragraph 6.2.25 of the supporting text unlawfully extended Policy W3's scope. |
| New Dawn Homes v SSLG [2016] EWHC 3314 |
Permissible use of explanatory text to provide definitions or clarify policies without adding new policy requirements. |
Referenced regarding the interpretation of supporting text accompanying Policy W3. |
Court's Reasoning and Analysis
The court undertook a detailed examination of each Ground raised by the NFU, applying relevant statutory provisions, case law, and the factual background concerning environmental harm and regulatory regimes.
Regarding Ground One, the court found that the LPA was not legally restricted to limiting the MWLP strictly to the statutory definition of "waste" under the Planning Acts and the WFD. The court accepted that Policy W3 lawfully addressed agricultural waste including manure, given evidence of environmental harm and uncertainty about its use. The court rejected the NFU's argument that manure could never be waste, noting the policy’s forward-looking nature and the obligation under Article 13 of the WFD to prevent environmental harm.
In Ground Two, the court applied the principles from Newbury to assess whether Policy W3 unlawfully extended requirements to the whole agricultural unit. It concluded that the requirement for waste management statements covering the whole unit in cases of Environmental Impact Assessment (EIA) development was justified and proportionate, addressing cumulative environmental impacts. The nutrient neutrality requirement applies only to the development proposal, not the entire unit, and the supporting text did not unlawfully extend the policy.
Ground Three concerned the scope of nutrient neutrality requirements beyond Natural England’s advice. The court acknowledged that while Natural England recommended nutrient neutrality only in certain catchment areas, the LPA was entitled to adopt a broader local approach with cogent reasons. The court emphasized the high threshold for irrationality and found no unlawful action.
On Ground Four, the court accepted that the NFU was not consulted at the regulation 19 stage, constituting a procedural error. However, it found no substantial prejudice because the NFU had opportunities to make representations at other stages, including the Examination and Main Modifications consultation, and the Inspectors were inquisitorial and knowledgeable.
Ground Five challenged the adequacy of reasons given by the Inspectors. The court held that the Inspectors’ Report, read with background documents, provided legally adequate reasons addressing key controversial issues. The court emphasized that Inspectors are not required to respond to every objection in detail, and the legal issues on waste definition had been addressed in the court's analysis under Ground One.
Holding and Implications
The court DISMISSED the challenge brought by the NFU against Policy W3 of the MWLP.
The decision confirms that a minerals and waste local plan may lawfully include policies addressing agricultural waste beyond the strict statutory definition of "waste" when justified by environmental concerns, particularly where existing regulatory regimes have failed to prevent harm. The court upheld the application of planning controls to the whole agricultural unit for EIA developments and affirmed the LPA's discretion to adopt nutrient neutrality requirements beyond expert agency advice, provided there are cogent reasons.
The procedural failure to consult at regulation 19 stage did not result in substantial prejudice, underscoring the importance of the overall consultation process and the Inspectors' inquisitorial role. The ruling does not establish new precedent but clarifies the application of existing legal principles to local plan policies addressing environmental protection in agricultural contexts.