Decision in polytunnels legal battle is great news says NFU

The Court of Appeal has today over-turned a decision by the High Court against polytunnels erected on a farm in Herefordshire. The NFU, which acted as intervener in the case, has said the decision is great news and a victory for common sense.

The case originated from a legal challenge brought by a Wye Valley action group, which objected to the original approval granted by Herefordshire Council to a farmer to erect polytunnels on his farm. The action group won in the High Court on the grounds that the Council had made an error of law in failing to carry out an Environmental Impact Assessment, which they said was required as the site lay in a semi-natural area.

The NFU applied to be an intervener in the case because of a number of concerns it had about the High Court judgment and the wider impacts it could have on the industry.  In particular, the NFU was concerned that the High Court had found that the site, which had been under soft fruit crop and arable rotation for a number of years, was a semi-natural area as a matter of law because it falls in an Area of Outstanding Natural Beauty and is adjacent to other areas under statutory designations.

NFU President Peter Kendall said Todays decision from the Court is great news and a victory for common sense. I am really pleased that the NFU took part in this case, not just on behalf of our member, but also on behalf of the industry.

Polytunnels are absolutely vital to our soft fruit growers; they make it possible to provide locally grown, fresh, quality fruit for longer, rather than consumers having to rely on foreign imports. Today, as farmers are called on by Government to produce more food, impact less on the environment and reduce food waste, it is more important than ever that farmers are able to use production methods like polytunnels to deliver good quality and sustainably-produced food to consumers.

NFU chief legal adviser Nina Winter said: The NFU had a number of concerns about the High Court judgment and in particular the High Courts finding that the site was a semi-natural area as a matter of law.  Given the potential implications of this, the NFU applied to be an intervener in the case, and to make submissions to the Court of Appeal, on behalf of the industry. With support from the NFUs Legal Assistance Scheme, the NFU was able to explain to the Court of Appeal why it had concerns with the High Courts decision, and how that decision could impact on farmers more widely.

We have been supportive of Herefordshire Councils stance and we were pleased that the Council was granted leave to appeal. Todays decision from the Court of Appeal overturns the High Courts decision, and in our view, clarifies the legal position for farmers on when land is semi-natural.

In giving the leading judgment today, Lord Justice Richards said: But there does seem to me to be a fundamental contrast between semi-natural areas and land that is subject already to intensive cultivation.  Natural Englands guidance expressly excludes all arable and horticultural land from the types of land considered to be semi-natural areas.  In my view that is a proper reflection of the meaning of the term.  He also said: Landscape beauty can arise not just from the natural or semi-natural features of an area but also from the appearance of cultivated land within that area, and the cultivated land does not become semi-natural just because it is included in a designated AONB.

• The farming business was granted planning permission by Herefordshire Council in 2008 for polytunnels, covering 255 hectares, of which no more than 54 hectares would be covered at any one time.
• The High Court judgment in the case of R (on the application of Wye Valley Action Association Limited) v Herefordshire Council was handed down on December 18 2009. Judgment in the Court of Appeal was handed down today, January 26 2011.
• The Deputy Judge in the High Court ruled that Herefordshire Council had made an “error of law” by failing to require an Environmental Impact Assessment (EIA) a process required by law in certain circumstances prior to granting permission and quashed the Council’s original decision. The Deputy Judge said that an EIA was necessary because the site was a “semi-natural area” as a matter of law; he said in the judgment “A site which abuts a European designated site of nature conservation status, a Special Area of Conservation, and a site of Special Scientific Interest, a site which is within the AONB, overlooked by a Scheduled monument, to my mind clearly comes within the definition of “semi natural area” as a matter of law.”
• The NFU was an intervener in the case at the Court of Appeal, and was represented in Court by My Timothy Straker QC.
• Defra calls on the industry to “produce more food and impact less” in its Food 2030 Report.