The pig and poultry industries are highly regulated with many hurdles and potential pitfalls for wary operators looking to expand their business and new operators just starting out. In this article we set out and explain some of the key issues.
A. Obtaining Planning Permission
Any new pig or poultry unit will likely require planning permission from the local planning authority. Submitting such a planning application isn’t a quick and easy process. However, careful planning and being aware of what’s involved will help prevent hiccups along the way, minimise costs and increase your prospects of success. Some key issues to consider are:
- Gain the Environment Agency’s approval pre-application – Ammonia can be a serious problem with the environmental permitting process under the Integrated Pollution and Control (IPPC) Directive. It is recommended that operators apply to the Environment Agency asking them to screen the proposed development in terms of ammonia impact. This means you know upfront, before planning consent is obtained, where you stand in terms of IPPC environmental permits.
- Determine if an Environmental Impact Assessment is required – Environmental Impact Assessments (EIAs) are compulsory when submitting an application for a unit with more than (a) 85,000 places for broilers or 60,000 places for hens; (b) 3,000 places for production pigs (over 30 kg); or (c) 900 places for sows (Town and Country Planning (Environmental Impact Assessment) Regulations 2017). They may also be required if the development is near sensitive sites such as ancient woodland.
- The level of detail of an EIA will vary by site depending upon the likely impacts of the development on the area. For example they may model the impacts of ammonia, odour and/or noise. Generally, for large-scale units a very detailed analysis is required.
- Review the relevant local planning policies for the area– It is important to consider how the policies in the Local Plan for the area affects your development. You should also check to see whether there are any relevant supplemental planning documents. For example, some local authorities state they will not allow the erection of a new livestock unit within 400m of a dwelling.
- Prepare a Planning Statement– A Planning Statement identifies the context and need for a proposed development and includes an assessment of how the proposed development accords with relevant national, regional and local planning policies. They are generally only compulsory for planning applications for large-scale expansions or new units but smaller-scale developments with contentious issues can equally benefit from them. They may address the impact of the development on such issues as noise, smell, flies and pests, as well as slurry disposal.
- Appoint the right experts – The early appointment of an experienced rural planning and environmental consultant and supporting specialist solicitor to guide you through the planning application process (and associated environmental permits) could save you time and money in the long run.
B. Obtaining Environmental Permits
Intensive farming such as commercial pig and poultry units are subject to the environmental permitting regime under Environmental Permitting (England and Wales) Regulations 2016, and will likely require an environmental permit from the Environment Agency (EA). As mentioned above, this particularly includes issues arising from ammonia and compliance with the IPPC Directive.
Again, having the right expert environmental consultant and supporting specialist solicitor to guide you through the environmental permitting regime, in particular the requirements and practices of the local EA officers, could save you time and money in the long run.
C. Breaches of Environmental Permits and Planning Permissions
It goes without saying that once you have been granted the relevant planning permission and environmental permit you need to comply with their terms. The consequences of any breach can have serious consequences for your business and importantly also for yourself personally. For example, environmental offences under the Environmental Permitting (England and Wales) Regulations 2016 can be enforced by environmental undertakings and fines but also by imprisonment. Also, the Environment Agency (EA) and/or local council can recover your profits arising from any convicted statutory offences under the Proceeds of Crime Act 2002.
Additionally, you need to be mindful of potential pollution and contamination issues that may arise separate to the terms of your environmental licence and conditions on the planning permission. By example, the EA has powers to enforce pollution and contamination issues, particularly relating to watercourses, under the environmental permitting regime. This can include revoking or suspending your Environmental Permit as well as recovering remediation costs.
Breaches of planning control and the environmental permitting regime can be very serious and you should appoint the relevant expert consultant and planning and environmental solicitor as soon as possible. Prosecution is an action of last resort for authorities, and therefore with early and constructive engagement it can usually be avoided.
D. Issues of smell and other environmental health nuisances
You may think that the legal hurdles for your new pig or poultry unit are behind you after securing and complying with the planning permission and the relevant environmental permits. Unfortunately, your ongoing business activities may still be affected by nuisance claims arising from smells, flies and pests and other environmental health issues.
In simple terms a nuisance is where a person does something on their own land, which they are lawfully entitled to do, but which adversely impacts the land of their neighbour or generally endangers the life, health, property, morals or comfort of the public. There are two types of nuisances:
- Common law nuisances – actionable nuisance in tort where a claimant can take civil proceedings against a defendant for damages to compensate them for losses; and/or injunctive relief to abate a continuing nuisance and prevent its recurrence. When a claimant takes common law nuisance proceedings the civil court undertakes a balancing exercise, weighing up the factors in each case, with an overarching principle of reasonableness. These factors include: location; time of occurrence; duration; frequency; and whether it is a malicious act or a reasonable use of land by the defendant.
- Statutory nuisances – the statutory nuisance regime is set out in Part III of the Environmental Protection Act 1990. It must be either a common law nuisance or prejudicial to health but the difference is that unlike common law nuisance its enforced by the local council. It covers only those nuisances categorised in the Act which includes by example the following: dust, steam, smell or other effluvia from industrial, trade or business premises; keeping of animals; insects (eg. flies) from industrial, trade and business premises; and artificial light and noise from premises.
- The local council has a specific duty to serve an abatement notice, which sets out the required steps to stop the nuisance, where it is satisfied that a statutory nuisance exists. They can also seek injunctive relief from the courts.
Importantly, the fact that a business operator may have planning permission and environmental permits for the activity causing the nuisance is not a defence to a nuisance claim. However, such factors are relevant considerations within any defence on the ‘Agent of Change’ principle in cases where the nuisance arises from the change of use of neighbouring properties (ie. typically new residential development in the countryside).
There are limited defences to both common law and statutory nuisances, and it is important to engage early with the affected parties and authorities to attempt to amicably resolve the issues. Accordingly, the early appointment of an experienced environmental consultant and planning and environmental solicitor to advise and assist during negotiations and any legal proceedings is vital to a positive outcome.
Our specialist Planning and Highways Solicitors Team is experienced and well placed to advise you through the planning and environmental issues from the beginning of your new business or expansion of an existing business as well as any compliance or nuisance matters once you are up and running.