Council defends claim that it failed to enforce odour management plan

Cheshire West and Chester Borough Council has defeated a claim in the High Court that it acted wrongly when it concluded a farm had met requirements to limit offensive odours.

Resident Joanne Cathie lives next door to Hale Pastures Farm, whose owners were granted retrospective conditional planning permission in 2020 for a reception pit and slatted yard below a cow shed.

One condition stated that the farm owners must submit an odour management plan for approval. This was done, and in November 2021 Cheshire West and Chester discharged the condition.

The court heard the reception pit is covered by concrete slats and has a capacity of around 343 cubic metres for both solid and liquid waste generated by the cows.

It is emptied every week or so, rather than every two-to-three months as was the case prior to the odour management plan.

Liquid slurry is then spread on fields some distance away and the whole process can take some three hours.

Ms Cathie found the foul smell generated by the dairy farming operation difficult to put up with after it commenced in 2017, having already lived next to the farm for some years. She complained to the council, which served a statutory abatement notice on the farm.

When the farm owners then sought planning consent for the pit the council imposed a condition that required a revised odour management plan with “details of all measures to be employed to minimise odorous emissions from the reception pit, slatted area about it and hard-standing adjacent to it, such measures demonstrating best practice”.

Various other measures were also required, ”to protect the residential amenity that neighbouring occupiers can reasonably expect to enjoy.”

Ms Cathie argued that Cheshire West and Chester agreed the condition had been met as the odour management plan demonstrated the ‘best practicable means’ were used to avoid unacceptable odours, but this test does not form part of the planning regime but instead related to the separate statutory nuisance regime.

This meant, she said, the council wrongly focussed on the efforts of the landowner rather than whether the result of those efforts was achieved an acceptable standard of amenity.

Her second ground was that the council wrongly took account of the farm’s financial circumstances and her third that it was irrational to find that the measures in the submitted odour management plan amounted to best practice on the basis of the business model and financial circumstances of the farm, since these factors were logically unrelated to best practice.

HHJ Bird said in his judgment that Ms Cathie suggested the council wrongly concentrated on the efforts of the farm owners rather than on the result of those efforts, "but the latter is a function of the former and the condition requires actions to be taken”.

He said that if Ms Cathie was correct “it would mean that it in order to discharge the condition, the [farm owners] would take on a ‘disproportionate or unjustifiable financial burden’ because the scale of the farming operation was such that it was simply not possible for [them] to invest it their own equipment to empty the pit.

“The condition would be unreasonable and so unlawful. It would have been wrong (an error of law in misdirecting itself) for the [council] to conclude that it should read the condition so that it imposed an obligation that was impossible to meet.”

HHJ Bird, who was sitting as judge of the High Court, said there was “nothing in” the second ground argued on the third he could “see no basis to conclude (or evidence to suggest) that the measures taken in respect of odorous emissions from the pit, the slatted area and the hard standing do not comply with ‘best practice’”.