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Appeal judges back farmer on polytunnels

27 January 2011

The Court of Appeal has backed a Herefordshire farmer who uses polytunnels to grow soft fruit on his farm in an Area of Outstanding Natural Beauty (AONB) in the Wye Valley.

Campaigners had argued that the council should have carried out an environmental impact assessment because putting up the polytunnels amounted to “projects for the use of uncultivated land or semi-natural areas for intensive agricultural purposes” under the EIA regulations.

Delivering the leading judgment, Lord Justice Richards said the farm had used polytunnels for some years and the “perceived need for planning permission” only arose following a High Court decision in 2006.

Richard LJ said that out of the farm’s area of 377 hectares, the proposal was for no more than 54 hectares to be covered by polytunnels at any one time.

“Although the council decided that an EIA was not required, a large body of environmental information was included in the material taken into account by the council in reaching its decision to grant planning permission,” he said.

“The officer’s report for the planning sub-committee was a lengthy document. It referred to the documents supporting the application, which included a landscape and visual assessment, a drainage appraisal, a water resources risk evaluation and an ecology survey.”

Lord Justice Richards said Natural England had originally objected to the polytunnels because of the impact on the AONB, but had withdrawn the objection.

He said he had no doubt that the council had reached a rational conclusion.

“I see no difficulty whatsoever in the view that the application site, consisting as it did of actively managed farmland already in use for the production of soft fruit, arable crops and turf in rotation, was neither uncultivated land nor a semi-natural area,” he said.

“Even if I had some doubt on the point, which I do not, I would hesitate to brand as irrational, on the basis of a paper exercise, a view reached on an issue of this kind by council officials familiar with the site and the surrounding area.”

Richards LJ allowed the council’s appeal. Lord Justice Rix and Lady Justice Smith agreed.

Richard Buxton, who acted for the Wye Valley Action Association, said the ruling would result in more polytunnels being used over a wider area of the countryside.

“The court is adopting a conservative approach to the implementation of the EIA directive which we think goes against the more liberal approach taken by the European Commission and the European Court of Justice,” he said.

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Regulators Conveyancing Local government