ELF has been assisting a community in Bideford, Devon where a large industrial dairy farm of 1,000 cows, all held in holding bays with no outside access, has over the last few years been established in close proximity to a Special Area of Conservation (SAC) and Site of Special Scientific Interest (SSSI) without all the necessary permissions being obtained.
Local residents have been concerned for many years about the negative environmental and health impacts on the local area of such a large intensive farming operation.
Following numerous pollution events being linked to the farm in question, in 2011 the Environment Agency (EA) investigated another pollution incident which resulted in a prosecution – see here
Whilst investigating, the EA also discovered that there was insufficient slurry storage capacity at the farm. Using their Silage, Slurry and Agricultural Fuel Oil (SSAFO) powers, the EA advised the farmer to increase the storage capacity, which was duly done. A one hectare slurry lagoon was constructed; however planning permission was not sought or obtained.
The local authority having resisted increasing pressure from local people, after nearly four years of unregulated development, last year, decided to invite a retrospective planning application and issued an enforcement notice against the unregulated development of the lagoon.
The farm itself is in the North Devon Area of Outstanding Natural Beauty, and the lagoon lies approximately 235 metres at its nearest point from the Tintagel Marsland Clovelly Coast SAC and Marsland to Clovelly Coast SSSI.
Of particularly biological interest, the SAC is noted for its lichens: “The Atlantic oak woods in North Devon are nationally significant for their lichen interest. Bryophytes and lichens are among the UK’s most important contribution to international and especially European biodiversity”.
The siting of the farm and lagoon so near to these sites, bearing in mind that the farm produces vast amounts of waste, has been found to have potentially damaging effects on the nature sites, not least from the ammonia produced.
Natural England (NE) required a Habitats Regulations Assessment (HRA) which concluded that significant effects could not be ruled out from the waste holding lagoon and therefore permission should be refused. NE has also objected to the retrospective application in untypically strong terms. However, despite the unregulated nature of the development, and assessed damaging effects we are told that the local planning authority (LPA) is minded to approve the retrospective application.
A matter that has recently transpired is that the HRA was not carried out by an ecologist because the LPA no longer has one. A robust response from the applicant has forced the LPA to agree to undertake a new HRA, employing an external ecologist. This is deeply disappointing for the community and undermines the position of the LPA. The loss of expertise at a local authority level is troubling at a time when unrelenting pressures upon our countryside and wildlife are growing.
ELF has been working with the community and ELF chambers member, Stephanie Hall of FTB to unravel the legal challenges of a highly complex planning situation in an attempt to provide the local community with the best chance of opposing the retrospective application.
It soon became clear that through the incremental unregulated evolution of the intensive farming operation and the lack of action taken by the LPA, that this was a far more complex situation than at first appeared. We are continuing to work with Stephanie to assist the community.
ELF was approached last year by Ian Smith, vice chair of the Spurn Bird Observatory very concerned about Yorkshire Wildlife Trust’s application to build a visitor centre at Spurn, a spit of undeveloped Heritage Coast on the Humber Estuary. The centre would be a ‘temporary’ two-storey structure with a 76 space car park.
Spurn, a stretch of wild coast that is a haven for migratory birds, in both autumn and spring, attracts many visitors and is popular with local people.
With the usual raft of international and national nature designations, local planning rules also apply to protect it from development that is classed as permanent.
Refused last year over flooding and landscape concerns, an amended application was granted planning permission on 30th January 2017. The applications have attracted much local ire and the applicant seemingly unmoved by the strength of local opposition, pressed ahead with its plans.
In this instance both Natural England and the RSPB have been working with the applicant to approve the plans. However, there are other local organisations, especially within the bird watching community who are not convinced that the shadow Habitats Regulation Assessment produced by the applicant which concludes that there will be no significant environmental effects, is correct.
Having undertaken their own investigations they conclude that the building and car park, sited within the Spurn Heritage Coast, will not be without its impacts.
ELF has sought advice from Andrew Parkinson at Landmark Chambers on the merits of a challenge to the decision. We are particularly interested in whether it was appropriate to consider the building a ‘temporary’ structure.
ELF has been working in partnership with University College London (UCL), Plantlife, Warwickshire Wildlife Trust and a local Warwick campaigner to examine whether uncultivated land and semi-natural grasslands in England were sufficiently protected by the Environmental Impact Assessment (EIA) requirements.
Cara Goldthorpe, an LLB student working under the auspices of the UCL ELF clinic and Dr Jane Holder, produced an analysis of the scientific and legal evidence suggesting England has inadequately implemented the EIA Directive in the context of agriculture.
A complaint to the European Commission is currently being considered. This piece of work was recently published in the Environmental Law and Management journal.
ELF has been assisting a community group of 600+ members in Cumbria, Power without Pylons (PWP), to respond to the final public National Grid (NG) consultation on joining up Moorside power station to the grid.
The major infrastructure proposals and Development Consent Order (DCO) process set out in ‘North West Coast Connections’ involve miles of new cabling through the landscape and coastal “setting” of the Lake District National Park (LDNP) – though original plans to go through the LDNP itself, have been dropped. PWP has been working in response to the proposals to put 50 new super pylons (each over 50 metres in height) around the Dudden Estuary, in some places metres from the boundary of the LDNP.
This area is a Ramsar site, an SAC (Special Area of Conservation), an SPA (Special Protection Area) and has three SSSIs (Sites of Special Scientific Interest) as its component parts. NG plans to put the cabling off shore so as to avoid the landscape and nature impacts, which is the group’s preferred option, have been dropped due to issues of cost (a 7% increase) and technical difficulties.
Working with a new ELF barrister Stanzie Bell of Kings Chambers in Leeds and the group, ELF has been supporting PWP to put in their final response. The public consultation is now closed and ELF continues to work with the group going forward towards the DCO application stage.
Graham Barron of PWP said
“… thank you for all of your help – it was very useful!”
Members of the group living in and around the remote communities of the North West coast and LDNP already face the decommissioning of the old nuclear power plant and the construction of the new one, Moorside, with all their contingent impacts. The DCO process for the construction of Moorside is separate but running in parallel to the North West Coast Connections DCO process.
ELF remains concerned that the impacts of both DCO projects, have not been properly considered together and it isn’t until this final public consultation stage that the “cumulative effects” have been (for the first time) considered.
This means that the environmental statement reporting on the anticipated “significant cumulative effects” of the two projects as stated by the applicant in its summary report, will now not be open to the front loaded consultative process of the DCO, in line with the public participation requirements of the Environmental Impact Assessment Regulations.
ELF will be seeking support from within the ELF membership on this and if you would be interested in helping us to explore the issue of “cumulative effects” do get in touch.
Further reporting on this case here.
And PWP’s newsletter here.
somers Town in central Camden is a green oasis, of mature woodland and community garden in one of the most deprived areas of central London. Set in the middle of a housing estate, it is a space of real amenity value where many of the residents do not have outside space and is designated as both public and private green space. Next to some of London’s most significant redevelopment around King’s Cross and St Pancras, it was designated in the local plan as a place of “limited change”.
When a local group, Somers Town Neighbourhood Forum (STNF) first approached ELF nearly two years ago, it was because they were concerned over Camden Council’s emerging proposals in respect of the treasured and much cherished green space. They were right to be worried as Camden’s proposals took shape. ELF has been working with the group ever since in conjunction with Dr Jane Holder at UCL – looking at issues of green space and their own emerging neighbourhood plan.
However ELF’s most important role came recently after Camden approved a planning application, granted to themselves to redevelop the land, as feared, building on the green space. Despite the limited change designation, the planning permission envisages vast change. In order to pay for the redevelopment of a school, the development requires as “enabling development” a 25 story tower of luxury apartments, the felling of dozens of mature trees and the loss of the beautiful community garden, created just over a decade ago in recognition of all the upheaval and disturbance locals endured during the construction of HS1 (Eurostar). Frightened at the prospect of their neighbourhood changing irreconcilably ELF sought expert advice for the group.
Working with a fantastic barrister at 39 Essex Street, Daniel Stedman Jones, we worked on drawing up grounds for a judicial challenge. As litigation became more certain ELF brought in Paul Thompson of Temple Bright solicitors, ELF solicitor member and ex ELF intern.
We already knew that the Council had given no consideration in the planning officer’s report to the CS4 policy on the area being one of “limited change”.
CS4 states:
“The Council will ensure that development in the areas of more limited change respects the character of its surroundings, conserves heritage and other important features and provides environmental improvements and other local benefits where appropriate”
The policy sets the strategic priorities for Somers Town and, as such, is the most important overarching planning policy for the area and not being considered – in our view – was an error in law.
Through Daniel’s further investigations we also realised that no needs assessment had been carried out on the issue of public space provision. A needs assessment is required by the London Plan. It says “Replacement of one type of open space with another is unacceptable unless an up to date needs assessment shows that this would be appropriate”. No up to date needs assessment had been carried out which was another failing.
Two weeks ago proceedings were issued in the High Court and last week a CrowdJustice page for raising funds was set up. You can read more here.
For ELF this is a really important case and gets to the heart of what is required for communities to feel they have a voice. These grounds of challenge were represented to the Council by STNF and ignored.
The importance of green space to communities for health and wellbeing was recently commented on by James Cross CEO of Natural England. See here.
ELF would like to thank Daniel and Paul for their great work in bringing this all to pass.
Signposted to ELF under the new collaboration with Cardiff Law School (in coordination with the Welsh Wildlife Trust, Woodland Trust and FOE Wales), this enquiry concerns pro-bono support with the public inquiry, into the proposed M4 relief road in Newport. The inquiry was due to start November 2016 but has been postponed until March 2017.
The proposed road would cut through 8 km of the Gwent Levels, including four SSSIs, destroying one of the largest surviving areas of ancient grazing marsh and drainage ditch systems in the UK (see http://www.wildlifetrusts.org/M4)
Climate change expert Professor Kevin Anderson has said that the scheme will create a damaging increase in carbon emissions. The inquiry will consider these proposals and less environmentally damaging alternatives.
A new piece of Welsh legislation, the “Well-Being of Future Generations (Wales) Act 2015” may be leverage against these proposals. There are seven pillars, the second of which states “A nation which maintains and enhances a biodiverse natural environment with healthy functioning ecosystems that support social, economic and ecological resilience and the capacity to adapt to change (for example climate change)”
ELF has gathered an amazing collection of barristers from amongst some of our member chambers, Garden Court, FTB and 1 Crown Office Row, so that each of the 12 expert witness have a pro-bono ELF barrister allocated. Witnesses include Sir John Lawton, author of the incredibly influential and recently updated State of Nature Report, and Professor Kevin Anderson, climate change expert.
ELF would like to express its real gratitude to those barristers who have agreed to participate in this matter.
Photo: rspb.org
pdate from Save Druridge September 2016 – The Highthorn Planning Application has been “called in” by the Secretary of State. This means that the Secretary of State has decided to take over the decision making process on this application from the local authority as it sees that the application may conflict with policy on a national level or that the decision is of national importance.
ELF was able to assist the community with drafting their call in letter and is delighted that this matter has been called in by the Secretary of State. We will be working with the Save Druridge community going forward towards the inquiry. Some of the issues identified for exploration include whether the proposal is consistent with government policy on climate change, conserving and enhancing the natural environment, sustainable extraction and government policy on replacing coal fired power stations. All these matters were raised in our letter before action. We would also wish to congratulate the group on a truly inspiring campaign!
“Many thanks to everyone at ELF in helping to achieve this momentous achievement, I don’t think we would have managed without you” Duncan Lawrence
June 2016 – The Planning Officer in charge of the Highthorn Planning Application will be recommending approval of the application with conditions attached.
What do locals do when they wish to protect sites from quarrying?
In Northumberland, a local community group called ‘Save Druridge’ is campaigning to protect Druridge Bay and its pristine coastline from the plan to develop Highthorn opencast coal mine, which would be the largest in the country.
Part of the case being made for the site is based on an agricultural restoration plan. A lot of quarrying has taken place in the area in the past; but the sites have been restored post-operation with immense benefits for local species, the environment and local residents.
Druridge Bay is now also the habitat of pink-footed geese and many other species that are likely to flee if the development goes ahead.
The project not only seems to contradict Amber Rudd’s speech last year stressing the importance of phasing out of coal to lessen the UK’s contribution to climate change; it is also likely to adversely impact the health of locals through air and noise pollution. Despite these consequences, public consultation has been limited and accounts on the many adverse environmental impacts of the mine on local people ignored.
The development process in Druridge puts into question the strength of restoration plans as environmental protection tools: the need to preserve local ecosystems often seems like a paper exercise, easily overridden at the post-quarrying stage by developers. Considering this lack of safeguards, Save Druridge’s approach is to reject the project fully.
The campaign has received support from Green Party leader Natalie Bennett. The RSPB and Wildlife Trust have shared very strong objections to the development project. The ever brilliant Stephanie McGibbon, environmental consultant and network member of ELF is assisting the community in responding to the public consultation. If you would like more information on the case please follow links to the very active Save Druridge website, Twitter and/or Facebook page (closed group).
Photo by Christine Westerback.
Does Cornwall Council have the right to charge business for access to the sea?
ELF was approached by a local father who’s child attends a surfing school and who has lots of contacts in the surfing community. Cornwall’s decision to, in effect, charge for access to the sea, has widespread implications – especially for the many social enterprises, charities and one-person businesses which use the beach and sea.
This includes most surfing schools, some of which have been given planning permission for specific-purpose premises close to a beach. Is the beach public open space? Should the council be charging for using the beach to access the sea, or for using a beach? Should running clubs which use a park?
This issue is being pursued locally on behalf of the individual and by ELF Pro-Bono Law Clinic at Birmingham University Law School.
n Halton, Lancashire, having failed to detect 8 houses missing from layout plan, one Councillor grants casting vote in favour of 60 houses, citing fear of losing on appeal.
The council vote was split 50/50 down party lines and the Chairman cast his vote in favour – citing the risk of losing on appeal as his reason. This was despite costs, in this instance, not being a material planning consideration (costs did not have to be taken into account when deciding the planning application or on an appeal against the planning decision). Worse, it was never pointed out to the planing committee that the indicative layout plan showed not 60, but 52 houses and the planning officer’s detailed advice on environmental sensitivity was ignored.
Victoria Hutton at 39 Essex Street, gave a positive pro-bono opinion. On the strength of that opinion the matter went to Dr Justin Neal at Aaron & Partners. A letter before action was issued in October 2015.
It was with great regret that proceedings were not issued. With costs over £5,000.00 to just have the matter issued in the High Court, the community were not able to raise the funds.
Whilst ELF believed the case had strong merits, once again we see costs acting as a barrier to access to environmental justice. ELF will be assisting this community to make a Local Government Ombudsman (LGO) complaint.
Photo from Forest of Bowland, Lancashire County Council.
Having secured a temporary reprieve from Natural England to delay a local farmer ploughing up a Local Nature Reserve and wildflower meadow, to allow due process to be followed, this designated and supposedly protected wildflower meadow was later destroyed by ploughing.
Under the EIA (Agricultural) Regs, NE the statutory regulator, it is only where areas of uncultivated grassland (often wildflower meadows) are over two hectares,that a screening decision has to be taken. The consequence of this is that many of these fragmented sites, being under 2 hectares, effectively have no protection at all. ELF is assisting an environmental campaigner and helping to pursue the wider implications with help from Jane Holder at UCL and the Warwickshire Wildlife Trust (and other conservation charities) in mounting a challenge at an EU level.