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Countryside charity fails in legal challenge to grant of planning permission for multiple polytunnels

The Campaign To Protect Rural England (CPRE) has lost an attempt to stop Herefordshire Council’s decision to grant permission for 11 blocks of polytunnels.

Herefordshire agreed to allow Withers Fruit Farm to erect the polytunnels covering approximately 37 hectares, and caravans for up to 350 seasonal workers, in the parish of Ocle Pychard.

CPRE had permission for a High Court challenge on the grounds that councillors were wrongly advised that no weight could be attributed to Herefordshire’s Polytunnels Planning Guide (POPG) and that this guidance created a procedural legitimate expectation that the processes in it would be followed in any planning application for polytunnels.

It also argued that the officer's report was flawed because it failed to direct the planning committee to question whether the landscape was valued and whether bats were present.

CPRE told Mr Justice Stuart-Smith that advice to the committee that the POPG “cannot be attributed weight” because it was not a formal SPD document was wrong in law.

But in Campaign To Protect Rural England, R (On the Application Of) v Herefordshire Council [2019] EWHC 3458 the judge said in his ruling the portion of the officer’s report in question did not mean the POPG was necessarily to be given no weight.

“To give it such a meaning given the context of the rest of the officer's report and the terms of the POPG itself is to adopt a legalistic literalism which is quite out of place,” he said.

“To the contrary, a fair reading of the passage in context, and taking into account the stated terms of the POPG itself, shows the officer's meaning with reasonable clarity: although the POPG's purpose was to assist and give guidance, the document did not have a special status as would a formal planning policy or SPD and which could, of itself, give the contents a materiality that they would not have had if not included in the POPG.” The judge said this meaning was “rational and justified,”

The CPRE’s point about bats fell because “there was no information that tended to contradict the finding that there were no bats roosting in buildings on the site; and there was no good reason to question that adequate provision away from buildings would remain and would, if anything be enhanced, for commuting and foraging bats or for any bats that might be roosting in trees”.

In rejecting the ground about valued landscape, Stuart-Smith J said the there had been no error of law and the submission that the court should set aside the decision for want of a more clearly expressed approach to the question of valued land “appears to me to be a classic example of adopting too legalistic and technical approach to the terms of an officer's report”

He also rejected a ground concerning late publication by Herefordshire of certain documents.

Mark Smulian

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