Agenda item

Alterations to 2no. existing Agricultural Buildings (retrospective application).

The Senior Planning Officer, Leigh Dalby, gave a detailed presentation on the report relating to the abovementioned planning application, a copy of which had been circulated (for copy see file of minutes).  Members noted that the written report was supplemented by a visual presentation which included photographs of the site.  The application was a retrospective application for alterations to 2 no. existing agricultural buildings and was recommended for approval, subject to conditions.

 

The Chair thanked the Senior Planning Officer and asked Local Member Councillor M Wilson to speak in respect of the application. 

 

Councillor M Wilson noted the application had raised great concerns from the residents of New Brancepeth and the Deerness Valley.  She noted that it was stated that the building works would not facilitate the use by livestock, however as shown by photographs within the presentation, there was livestock in the buildings.  She noted that there were residential properties within close proximity to the development and that residents’ living conditions were being made intolerable from the noise and odour from the pigs.  Councillor M Wilson explained that she felt it was clear that if the application was approved that there would be an increase in the number of pigs adding further detriment to the quality of life of residents.  She added that an increase in the number of animals would create more pollution and nitrates impacting upon the soil.

 

The Chair thanked Councillor M Wilson and asked the Committee Services Officer to read out a statement on behalf of Local Member, Councillor D Nicholls, who was unable to attend the Committee.

 

“I firmly object to the Retrospective Planning Application for Biggin Farm on numerous material planning grounds.  The changes that have been made retrospectively to the two barns completely change the appearance

of the barns from open ‘Dutch Style Barns’ to effectively two concreate Warehouses which are in total contrast to the surroundings as indicated in Point 24 of the committee report being described as “utilitarian and stark in appearance”.  This is in clear contrast to point 38 of the report that states that

“the alternation will improve the appearance and character of the buildings”.  The retrospective changes to the building are in violation of Policy 29 (Sustainable Design) of the County Durham Plan.  On these grounds alone I request that this retrospective planning application be refused.  There is however far more to this application than first appears.  The committee report presented to members by Durham County Council makes no mention that there is a significant dispute between the Planners at Durham County Council and a leading figure in Agricultural Planning Law.  Durham

County Council have ruled prior to the retrospective planning application being looked at by the Central and East Planning Committee that the use of the building has nothing to do with this application.  This is however strongly contested.  One of the Country’s leading Agricultural Planning Lawyers, Mr Tim Axe, wrote to Durham County Council on the 9 September 2021 saying that the council had made a fundamental error in not taking the use of the building into account in this planning application.  This letter which members can find on the planning portal entitled ‘LCF Law’ is extremely important

in this case. 

 

The last four paragraphs state in italics:  In accordance with s 38(6) of the Planning and Compulsory Purchase Act 2004 any application must be determined in accordance with the development plan unless material considerations indicate otherwise. 

In this case the material considerations are not confined to the visual appearance of the works but also to the use which the altered building is to be put and its impact.  If the buildings are not to be used for the keeping of livestock then a condition should be imposed to prevent such use.  If it is intended to keep livestock in the altered buildings then the impact of such use must be considered.  Failure to do so will mean that all relevant material considerations will not have been taken into account (as required by s38(6) above and the decision will be unlawful and subject to challenge by way of Judicial Review, Yours Sincerely, Tim Axe.

 

Despite this, Durham County Council Planners have maintained that the use of the buildings is not relevant to this application which means that myself as a ward member representing almost 10,000 people living in the ward of Deerness have no ability to even raise these material planning considerations, matters which I raised when calling this into the committee as can be seen in my e-mail dated 29 July 2021 on the planning portal.  I ask strongly that this application is refused.  As set out above this retrospective application viewed on the material changes alone fails to meet planning laws and regulations.  By turning the once traditional open barns into concrete warehouses they facilitate their use for industrial pig farming at an enormous scale which would have devasting consequences for the communities I represent, with material considerations such as smell, odour, noise, and loss of privacy.  In specific reference to odour, members may refer to the document on the planning portal entitled ‘Eshwood & Hareholm Residents Group’ dated 13 January 2022.  This includes a report by Mr Michael Bull a leading expert in odour control who concludes that, “the modelling shows that the resulting odours to be at levels that would be considered unacceptable as defined by the Environment Agency guidance”.  Mr Bull states that, “the assessments provided show that there is clear potential for adverse odour impacts should the proposed development be allowed”.  Across our ward we are already exposed to horrendous odours from the farm even in winter with freezing temperatures.  

 

As Maria Ferguson highlights in her letter dated 16 September 2021 if approved by Committee this may set a “dangerous precedent whereby buildings which are structurally inadequate for the keeping of livestock could be adapted to enable them to house livestock without any consideration in the planning system whatsoever”.  

 

I ask that if the committee fail to refuse this retrospective planning application that conditions are placed namely.

1) The buildings in question are not used to keep livestock 

If this is not possible that: 

2) The keeping of livestock in buildings in question is halted until the committee are satisfied that such measures are implemented so as to minimize any odours, noise loss of privacy.

I wish to thank all members of the committee for allowing me the opportunity to talk on this, especially as I am unfortunately prevented from doing so in person”.

 

The Chair thanked the Committee Services Officer and asked Helen Heward representing the Eshwood and Hareholm Residential Group, to speak in relation to the application.

 

H Heward thanked the Committee for the opportunity to speak and noted she represented ten families impacted by the application.  She noted that she strongly disputed the Officers assertion that the application referred only to the erection of walls and noted that she felt it was a material change of use.  She referred Members to an example of a decision an Inspector dismissing an appeal where there had been 30 bulls within 100 metres of residential properties.  She added that in the case of the application before Members that the buildings were located closer to residential properties and housed around 650 pigs.  H Heward noted the application was retrospective and explained as regards there being one residential property being within 40 metres and a further nine properties being within 400 metres.  She noted that the lives of residents were blighted by the use of the barns to house pigs, adding that residents were unable to use their gardens due to the smell and the squeal of pigs, noting that the sound had been likened to that of children crying.  She explained that one resident had workmen refuse to carry out work on their house due to the smell.  H Heward explained that an independent Odour Assessment had been conducted and that it had noted the levels were in excess of Environment Agency thresholds.  She added that residents were not being NIMBY (not in my back yard), as when the buildings were used to store grain there had been no issues.  She concluded by respectfully requesting that the Committee refuse the application, or should Members be minded to approve the application, include a condition in relation to the use of the buildings.

 

The Chair thanked H Heward and asked Officers if they had any comments in relation to the points raised by the speakers.

 

The Lawyer (Planning and Highways) noted the points made by the objectors, however, he noted Members should be clear as regards the application.  He explained the application was not looking at agricultural use per se, rather it was for alterations to two barns.  He noted that use was a material consideration however the weight was limited as the impact of the unaltered building was not different to that of the altered building, with the same agricultural use prior to the alterations and after.  He added that in those circumstances it was not felt there was a sustainable refusal reason.  In respect of imposing a condition relating to use, the Lawyer (Planning and Highways) noted this was not felt to be reasonable as the use could take place in an unaltered building, outside of planning control.

The Chair thanked the Lawyer (Planning and Highways) and asked the Committee for their comments and questions.

 

Councillor J Elmer noted he felt it was a very serious matter for local residents and noted the Officer’s response in terms of only considering the alterations to the buildings, not their use.  He added he felt that the impacts of the use should be considered.  He noted the independent odour appraisal, completed by Michael Bull and Associates, who had been Chair of the Institute of Air Quality Management, who produced the guidance that Planning Officers use.  He added the appraisal noted a population explosion of flies following the spraying of slurry, preventing residents from going outside.  He noted there were various ecological impacts, with washing polluting the water course, leading to algae blooms.  He referred to the large brown mass on the picture and noting that spray of slurry on uncultivated soil, which could be quite compacted, if coinciding with a storm could lead to pollution of the Deerness, Browney and Wear.  Councillor J Elmer noted the impact of ammonia of nearby woodland, as set out by the Woodland Trust, and added there was no mention of the ecological impact of large heavy good vehicles (HGVs) using Broadgate Road on a Victorian culvert, used by Brown Long Eared Bats as a winter hibernaculum.  He added that the congestion of HGVs on unsuitable roads was an unassessed problem.  He noted that there was also the issue of the considerable amount of greenhouse gases associated, however, it had not been looked at as the issue of pigs was not being considered.

 

Councillor J Elmer summarised the numerous objections that had been received from residents in relation to the application.  He posed the question did the works that had been carried out enable the use of the buildings to keep pigs.  He referred to the photos shown during the presentation and noted that the photographs taken prior to the development showed that pigs would have been able to stroll out from the buildings, with no dividing walls.  He added that it had been noted that hay bales could have been used, however, he noted they were not permanent.  He noted that the views of a Planning Lawyer, Mr Tim Axe, had been sought by residents and was set out on the planning portal.  He read out the letter from Mr Tim Axe, noting that the conclusion was that the use of the buildings should be considered and to not do so would be unlawful and subject to challenge by way of Judicial Review.  He noted there had not been a response to the letter from Mr Tim Axe from the Council’s Solicitor and noted a third silo that was referenced to be at the site. 

 

Councillor J Elmer noted that if the works have been carried out via permitted development, then a condition could have been applied in terms of livestock being within 400 metres of residential properties, reiterating that there was one within 40 metres, with 10 within 400 metres. 

He noted there were two contradictory legal opinions, one from the DCC Solicitor and one from and established Planning Lawyer specialising in the area.  He noted that the impacts would go unmitigated, and he felt that a precautionary approach should be taken, and to overturn the recommendation and have a decision made at a likely appeal by an impartial body at a high level.

 

Councillor J Elmer proposed that the application be refused as consideration had not been given to material planning issues and that the application was contrary to CDP Policies 21, 31, 40 and 41.  Councillor K Robson seconded the motion for refusal.

 

The Senior Planning Officer noted that upon investigation by Planning Enforcement, there was no evidence as regards a third silo, and the matter was closed in November 2021.

 

The Lawyer (Planning and Highways) noted that it was not the case that the Council had not responded to Mr Tim Axe.  He explained his manager had responded to the letter, however, no detail was provided as to the advice given as that was for internal Officers only and not for external parties.  He added that the issue was not with permitted development rights, noting neither the applicant nor Officers had asserted that this was permitted development, rather the work required planning permission.  He reiterated that the application was not looking at the wider agricultural use of the site, only considering the alterations to the two existing buildings.  He noted that pig rearing was an agricultural activity.  The Lawyer (Planning and Highways) reiterated that the issue was there was no planning control as regards the existing buildings’ agricultural use.  He noted that with or without the works, in planning terms the buildings could be used for the keeping of pigs without restrictions.  He noted that there was not sufficient impact to justify refusal as the use could take place in planning terms.  He added that also it would not be reasonable to restrict agricultural use as the buildings could be used as such without planning control.  The Lawyer (Planning and Highways) noted that therefore a condition to restrict such use would not pass the test in relation to the imposition of conditions.  He added that therefore the buildings could be used in their unaltered state for agricultural use, as set out by Officers, with objectors and Councillor J Elmer stating the contrary.  The Lawyer (Planning and Highways) asked Councillor J Elmer for some further information in terms of policies he would rely on to refuse the application, especially those other than relating to amenity.

 

Councillor D Brown noted that Members were often dubious of retrospective applications, however, he felt the application before Committee was an exception.  He noted the applicant was a successful large-scale business and noted similar applications and operations within his Electoral Division that operated with no complaints, even being within proximity to a hotel. 

He noted he had heard a great deal of comments from people as regards odour and waste and explained, as someone with 200 dairy cows, he dealt with waste on a regular basis.  He noted regulations in terms of the closed period for the spreading of slurry and processes such as injecting slurry into soil.  He added that the use of sewage sludge, from human waste, as used on arable farms had a far worse odour in his opinion.  He concluded by noting he fully supported the proposals and proposed the application be approved.

 

Councillor C Marshall noted difficulty in terms of the proposals and use of the building, as stated by Councillor J Elmer, with the enclosure of the barns seemingly enabling use for keeping pigs.  He noted if the application had been a change of use, then perhaps the impacts such as loss of amenity would have had to have been assessed.  He noted he could not support the application and asked for comment in terms of whether rejecting the application on loss of amenity would be sufficient to make a case at any appeal of the decision.

 

The Chair asked if the proposals had represented new development whether the application would have been looked at differently. 

 

The Senior Planning Officer noted that the applicant had stated that they would keep livestock regardless, and would enclose using temporary fencing or hay bales, which would not require planning permission.

 

Councillor C Marshall asked, if the Committee were minded to refuse the application, whether the Authority still be able to respond to issues of noise or odour.  The Senior Planning Officer noted that other mechanisms, such as a statutory nuisance, could be engaged, however Environmental Health had queried as regards the number of pigs and noted the numbers meant it would not be a statutory nuisance.  In response to the Chair he noted that if the buildings had been new then it would have been a different scenario and the use could have been looked at.

 

In response to a question from Councillor C Kay, the Lawyer (Planning and Highways) noted that existing agricultural buildings could be used for agricultural use without the need for planning permission.  He added that the application referred to operational development in respect of the side panels and were not within the permitted development regime.

 

Councillor J Elmer reiterated he felt there were two divergent legal opinions, and noting that while he was no legal expert, he felt that it appeared that approval could be unlawful and expose the potential of a Judicial Review.  He added, in that case, he felt it was sensible to allow a potential appeal and allow the Planning Inspectorate to determine.

 

The Lawyer (Planning and Highways) noted Officers had not stated that determining the application in accordance with their recommendation would be unlawful.  He reiterated that it would be difficult to uphold a refusal reason where the buildings could be used for such agricultural use.  He noted his advice to Members, should they wish to refuse the application, would be that it would be very difficult to sustain in respect of amenity impact as there was no difference in the use of the building.

 

Councillor J Elmer noted the wider policies, 20, 21, 30 and 44, relating to sustainable transport, amenity, impact of woodland and hedgerows, biodiversity, impact upon the culvert with Brown Eared Bats, and added there would also be a difference in appearance.

 

Councillor C Marshall moved that the application be refused on the grounds of loss of amenity for residents.  He added that he would hope there would be strict enforcement action as appropriate, if required.  Councillor K Shaw seconded Councillor C Marshall.

 

The Lawyer (Planning and Highways) noted there were two rival motions for refusal, the first be Councillor J Elmer, the second by Councillor C Marshall.  He added that of the two, he would feel more comfortable in defending that put by Councillor C Marshall at appeal and asked Councillor J Elmer if he would be willing to support that motion or amend his.  Councillor J Elmer noted he would be happy to support Councillor C Marshall’s motion.

 

Upon a vote being taken it was:

 

RESOLVED

 

That the application be REFUSED the following reason:

 

The development is contrary to Policy 31 of the County Durham Plan and

paragraphs 130 and 185 of the NPPF as it has resulted in adverse residential

amenity impacts in terms of noise and odour emanating from the use of the

buildings to house pigs/livestock, such use being facilitated by the development.

 

 

Councillors C Kay, D McKenna, R Manchester and

M Simmons left the meeting at 12.10pm