Environmental Impact Assessment: Mapping the Interface between Agriculture, Development and the Natural Environment?

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Abstract: Maintaining a balance between promoting agriculture and food production, and controlling or minimising its environmental impacts, has always been problematic. Since 1947, changes in agricultural land use have largely remained outside the scope of the planning system, whatever their negative environmental implications. The assumption that agricultural development should remain beyond legal scrutiny has been challenged in recent years by initiatives originating in European environmental law, and in particular by the implementation of the 1985 Directive on Environmental Impact Assessment. The Directive requires an EIA of proposals to convert semi-natural areas to intensive agricultural production, and of projects for restructuring rural land holdings. These are categories of land use change which have, since 1947, been assumed to be outside the remit of development control. Nevertheless, the English courts have recently shown a willingness to extend its reach into areas of agricultural land use that were hitherto assumed to be outside the planning system altogether. This article reviews several recent cases - notably R (Hall Hunter Partnership) v Secretary of State (2006) and R (on the application of Wye Valley Action Association Ltd) v Herefordshire District Council (2011) - in which proposals to adopt intensive agricultural land uses have been challenged in the courts. It reviews the application of EIA to agricultural development - both within the planning system and under separate regulations adopted for non-planning cases. It considers the scope for 'horizontal' environmental mechanisms such as EIA to address environmental protection issues at the interface between agriculture, 'development' and the natural environment.

INTRODUCTION

The relationship between agriculture and the natural environment is close and symbiotic. The landscape of the UK has been heavily shaped by mans intervention, including that of our 'semi-natural' environments - even that of mountain fastnesses in the Highlands, Wales and Northern England, where upland livestock grazing has had a major impact on upland landscapes and vegetation. Achieving a satisfactory balance between promoting agriculture on the one hand, and controlling or minimising its environmental impacts through land use regulation on the other, has always been problematic. The importance of agriculture to the economy and food supply was recognised in the post-World War II settlement set out in the Town and Country Planning Act 1947. This excluded many agricultural land uses from planning control and also exempted the conversion of land from non-agricultural to agricultural use from development control. Where building or operational work takes place on agricultural holdings, moreover, farmers are granted fairly generous permitted development rights. The application of full planning control, with the public consultation and scrutiny of development projects that it entails, has in practice been reserved primarily for major building or operational work on farms.

This benign settlement has been retained since 1947, although it has not been without controversy.3 Nevertheless, the assumption that all agricultural development should remain outside the ambit of legal scrutiny has been challenged in recent years by initia¬tives originating in European environmental law, aimed at minimising or eradicating the damage to the natural environment caused by intensive farming methods. Their impact on English law depends in large measure on the extent to which - and the circumstances in which - proposals for extensive land use changes to promote intensive agriculture come within the ambit of development control under the Town and Country Planning Act 1990. Not least, the characterisation of land use changes as 'development' or otherwise has important implications for the way in which tools of horizontal environmental regu¬lation - such as Environmental Impact Assessment (EIA) - are implemented in domestic law. In this context the English courts have, in several recent cases, shown a willing¬ness to extend the reach of development control into areas of agricultural land use that were hitherto assumed to be outside the planning system altogether. This has, in turn, considerable significance for the manner in which EIA is implemented both within, and outside, the planning system. In particular, the litigation in R (on the application of Wye Valley Action Association Ltd) v Herefordshire District Council4 (the Drummond case) has recently illustrated the potentially far-reaching implications of European law on EIA for agricultural operations that were previously thought to be exempt from legal scrutiny.

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