Agenda item

Retrospective application for alterations and change of use of general purpose agricultural building to agricultural livestock building to include the keeping of pigs (amended description).

The committee considered a report of the Planning Officer that was for a retrospective application for alterations and change of use of general purpose agricultural building to agricultural livestock building to include the keeping of pigs (amended description) at Farm Buildings At Low Houses, Woodside, Newbiggin, Barnard Castle, DL12 0UJ (for copy see file of minutes).

 

The Planning Officer gave a detailed presentation which included aerial images, site plan, elevations of the building and site photographs that showed the front and rear of the building and the position of the residential buildings.  A site visit had taken place prior to the Committee meeting to enable Members to assess the impact of the proposed development and the relationship with their surroundings. The barn was in place and was the subject of a Prior Notification application under Part 6 of the GPDO June 2021 for the erection of an extension to an agricultural building which was to be used for general hay and farm machinery storage. Alterations had been made to the barn and it was understood that it had not be used for the purposes it was intended.  It was currently being used to house pigs within 400 metres of a protected building (residential dwelling).  The site lay within flood zone 3a and within the Nutrient Neutrality catchment area.

 

The application had received no objections from Middleton in Teesdale Parish Council,the Environmental Agency, the Highways Authority, the Lead Local Flood Authority and Natural England although they did require that a Habitat Regulations Assessment be completed.  Environmental Health and Consumer Protection (Nuisance) had objected to the application as the proposals were considered likely to cause a statutory nuisance that no condition could mitigate.  There were letters of objection from four individuals and from three individuals in support from occupiers of the nearby properties.  Councillor T Henderson, local member had opposed the application.

 

Councillor R Bell, local member who was in support of the application had called it to committee. The application was considered contrary to Policy 31 and conflicted with Policy 10 of the County Durham Plan and Parts 12 and 15 of the National Planning Policy Framework as there would be unacceptable air/odour and noise pollution which could not be mitigated.  It was officers’ recommendation to refuse the application.

 

Councillor R Bell, local member addressed the committee in support of the application.  Although the application was retrospective, he felt it should be considered on its own merits.

 

Councillor R Bell was concerned that objections were based on a desk top assessment for noise, smells, intrusive lights and insects.  He advised that no intrusive lights would be used in the vicinity as why would a farmer illuminate the area and the pig waste would be removed from the farm.  He had visited the farm twice; once on a hot summers day and once on an autumn windy day where there was minimal odour and noise when either the barn door was open or closed.  He queried on what basis or what evidence there was for refusal on the grounds of noise as the main objector’s property was next to a noisy main road with lorries carrying loads from the quarry.  The farm was hit by winds from the southwest which carried away any odours from the houses. 

 

Councillor R Bell stated that objection on the grounds of statutory nuisance was a red herring as a statutory nuisance was an issue that unreasonably interfered with a person’s right to use or enjoy their property and where there was such interference was prohibited by statute or was such that it was prejudicial to health. The interference was required to be excessive, regular and constant therefore could not be relied upon.  He thought this should be omitted as a site visit had not taken place by officers. In his opinion any smells would disappear before they reached the dwellings.  There was support from close neighbours who were 180 metres to the north.  He did not feel that a planning decision should be made on future residents of the properties.  The properties were owned by Raby estates and any future tenants would have knowledge that there were pigs in the vicinity. There was a holiday cottage nearby that was evident there were no issues as the property was lettable and not affected by the pig operation.  It was a lengthy report to which Mr Wood had complied expletively and had liaised with Environmental Health and Natural England to navigate the planning system.  As there had been no site visit carried by officers he felt there were no grounds to refuse and hoped committee would overturn the officer’s recommendation and approve the application.

   

Councillor J Quinn for clarity explained that a site visit had taken place but was not well attended by members.

 

Ms M Ferguson addressed the committee on behalf of Mrs Davies who was a resident of the nearby dwelling who objected to the application.  She stated that 50% of her work was for farmers submitting planning applications.  Mrs Davies was opposed to the development as her property was 170 metres to the north-east from the site and the storage of pigs had been harmful to her health. She noted that one neighbour had moved due to the impact.  The development was in breach of planning control as the storage of pigs was contrary to the original planning approval in 2014 stating it was for storage purposes not livestock and livestock should not be kept within 400 metres of residential dwellings. 

 

Ms M Ferguson informed committee that there was a phasing out of the Basic Payment Scheme subsidy payments made to farmers but this application showed the applicant had invested in the barn concluding that his intention was to use the barn for livestock all along. She advised that Mrs Davies had had no issues until the building was used for keeping pigs as her asthma had worsened and she had 11 visits to the doctors who stated she had an allergy to pigs.  The odour has impacted her enjoyment of her property as she has not been able to enjoy her garden in the summer, she had to keep her windows closed, she had not been able to hang her washing outside or invite friends to her home.  She stated that on bad days Mrs Davies had to leave the property altogether.  The application was contrary to Policy 10 and she asked that the committee refuse the application. 

 

Mr E Wood, Applicant addressed the committee in support of the application.  He could not believe that the application had been called to committee as farmers had found it more difficult to make a living as market value did not match inflation.  This difficulty was increased with subsidies from the government to farmers being phased out and farmers being told they needed to diversify.  As the farm was in an Area of Outstanding Natural Beauty (AONB) it was difficult to diversify without affecting the look of the dales.  He had cattle and sheep but needed a cash flow for part time workers and specialist projects like dry stone walling.  Environmental Health had objected as it was likely to cause a statutory nuisance but with the closest property being 173 metres away the noise was inaudible.  He had asked officers to carry out a site visit but they had not obliged. He had received an impromptu check by the Environment Agency who had no issues with the barn or the water or waste management.  The holiday cottage was run by his mam and the pigs had not impacted on this business.  He felt the objection from the objector was unfounded as other residents were supportive.  It was a bit tight in the shed with 240 pigs and the ability to open the rest of the shed would give them more room.  He confirmed that he would not increase the number of pigs he kept therefore the smell would not increase.

 

G Spurgeon, Principal Planning Officer clarified that whether the proposals caused a statutory nuisance was considered as part of the planning application process, but with the key test being whether the proposals would adversely impact on residential amenity and with this being a lower threshold than what may represent a statutory nuisance.  He clarified that the applicant stated there were 240 pigs being stored in the original part of the building (granted permission in 2006 with no restrictions over its use). As such, the planning authority did not have any constraints to limit the number of pigs stored in this part of the building and could not prevent the applicant from adding more if the application were to be approved.

 

J Hayes, Principal Environment Protection Officer was concerned that the storage of pigs so close to residential dwellings would likely cause a statutory nuisance with noise and odour which would interfere with the amenities.  There were 240 pigs close to the residential property and based on the shed could keep a greater number of pigs.  The Principal Environment Protection Officer noted that the submitted Odour Modelling Report referenced pigs weighing7-80kg, the current pigs on site were 7-30kg, with the odour being offensive to the closest property.

 

The Principal Environment Protection Officer had 26 years of experience in environmental health and had worked in farming and did not like objecting to the planning application but as the building was so close to residential dwellings, he had to object on the grounds it would likely cause a statutory nuisance.

 

The Principal Planning Officer clarified that Environmental Health had attended the site visit along with desk top surveys to determine their objection, as well as liaising with the Nuisance Action Team who had also attended to deal with complaints received from residents.

 

The Principal Environment Protection Officer stated that any application was subject to a desk top survey to look at pollution control even though the Environment Agency might have no issues in relation to the development being within a flood plain; whilst keeping a significant number of pigs would require a permit.  A permit was not required at present therefore no enforcement action or regulation from the Environment Agency was available.

 

The Chair opened up the meeting for questions and debate.

 

Councillor E Adam had attended the site visit.  He stated that there was a focus on noise and smell as being a factor for refusal referencing non-compliance to Policy 10 and 31. He thought that farms generally smelt.  He asked if there had been any measurements taken in relation to odour and noise if they were likely to cause a statutory nuisance. 

 

The applicant agreed that there would be an element of smell and odour when keeping animals and the spreading of biosolids.  He commented that cows were smellier than pigs.  However the pig slurry was removed from the farm and taken away to be used on arable land.

 

The Principal Environment Protection Officer confirmed that there had been no measurements taken in relation to noise or odour but a judgement made on visits to the farm regarding the complaints as the proximity of the barn to residential properties was unreasonably close.

 

Councillor E Adam was satisfied with the answer but believed that the odour would be created from the spreading on the fields. He asked what storage would be provided for slurry going forward.

 

The applicant confirmed he would liaise Natural England regarding the increase in nitrates by the pigs which was taken away from the farm and spread on arable land.

 

Councillor L Brown asked why it was the tenant making the application and not Raby estates. 

 

The Principal Planning Officer could not answer why Raby estates had not made the application.

 

Councillor M Stead asked if the complaints had come from just one person or from different separate parties.  He added that he did not like retrospective planning applications.  He queried if the pigs were removed from the farm if the applicant could buy slurry from elsewhere to spread as he did not see the difference between making it himself or buying it from elsewhere.

 

The Principal Environment Protection Officer confirmed that there had been more than one complainant.

 

The applicant confirmed that although the slurry was taken from the farm, he could indeed buy slurry from elsewhere to spread on the land.

 

Councillor D Brown had noticed whilst attending the site visit that there was no major noise or smells within the vicinity of the barn.  He noted that the drawings for the development had been created by S&A Fabrications which were a local firm with a national reputation in May 2021.  He asked at that point if the applicant had had an idea of what he would store in the building.  As the applicant was a tenant of Raby Estate he asked if he had consulted with the agent about his ideas.

 

L Ackermann, Legal Officer (Planning and Highways) stated that the planning committee were to look at the position now and not three years ago.  An   application had been submitted to erect a barn and at the time it could only be used for agriculture storage use and not for livestock.  This was because the General Permitted Development Order did not permit the erection of buildings for livestock within 400 metres of the curtilage of a protected building i.e. a residential dwelling.  The applicant had not applied to change the use of the building from agricultural storage to livestock.  The use of the building for livestock prior to determination of the application by the committee was not permitted.

 

Councillor E Adam based on Councillor M Stead’s comments asked how many residents of the properties had complained from 2022 to the present.

 

The Principal Environment Protection Officer confirmed that two residents from the nearby properties had complained over that time period.

 

Councillor L Brown asked what was the potential number of pigs that could be stored in the barn if approval was granted.  She was glad that the slurry was spread elsewhere away from the farm. 

 

The applicant stated that approximately 600 pigs could be kept in the barn.

 

The Principal Planning Officer reiterated that whilst there were only 240 pigs at present there were no mechanisms in place to control the number of pigs which could be kept in the barn which could impact further on the noise and odour in the area.

 

Councillor V Andrews asked if there were different levels of odour from July in the height of summer and November in winter.

 

The Principal Environment Protection Officer acknowledged that there were seasonable variations with odour that occurred within the management of the farm.  He had attended the recent site visit and there was not a strong odour present nor much noise but he had based the likelihood of a statutory nuisance being caused on the worst case scenario.

 

Councillor J Atkinson sympathised with the objectors as all farms gave off odours and noise but potentially these could be gotten used to.  He was not in favour of retrospective planning applications as the process had not been followed correctly that would have given the objector the right to object in the right way.  He moved to agree with officer recommendation to refuse the application.

 

Councillor G Richardson mentioned that he was a farmer although did not keep pigs.  He thought it was a cracking building that stored straw in one half and pigs in the other half.  He felt the committee should not assume that the applicant had used the building retrospectively.  The livestock were housed for 9 weeks before being removed.  He had not smelt anything major whilst on the site visit and he believed the site had not just been cleaned for their arrival.  He felt there was good husbandry with the pigs being fed automatically reducing the amount of noise when the pigs were hungry.  It was a legitimate business where the applicant wanted to put the pigs into the other side of the barn for extra space but not increase the number of pigs.  He felt that people who lived in the countryside should accept the countryside as was and not try to change it.  He moved to disagree with the officer recommendation and approve the application.

Councillor E Adam seconded the application for approval as although he did not like retrospective planning applications it did happen.  Although refusal was based on Policy 10 and Policy 31 there was not sufficient information that there would be an impact on the environment.  He sympathised with the objector but he had found no issues of noise or odour whilst on the site visit.  The bed and breakfast pigs were brought in as piglets making little noise and odour, fed up before being removed.  This was a small diversification for the farm to be economical which would not have a significant impact on the houses as the wind would blow away most of the smell.  There was already noise and air pollution from the nearby busy road.

 

Councillor L Brown seconded the application for refusal as there were no conditions in place to control the number of pigs which could be stored in the barn.

 

The Legal Officer (Planning and Highways) reminded the members that due to outstanding issues with regards to nutrient neutrality the committee could only be minded to approve the application. She requested that delegated authority be given by the committee to officers in order to approve any conditions required on the planning permission as given the recommendation by the Planning Officer was refusal no conditions had been suggested in the report.  The Legal Officer asked the mover and seconder of the approval motion if they were happy to accept these terms.

 

Councillors G Richardson and E Adam agreed.

 

Upon a vote it was:

 

Resolved:

 

That the Committee were MINDED TO APPROVE the application, subject to Nutrient Neutrality issues being resolved and a suite of conditions to be delegated to Officers, in consultation with the Chair and Vice-Chair of the Committee