Campaign against agricultural pollution in the River Wye to go to Court of Appeal

David Sahota, a resident of the Golden Valley in Herefordshire, argues that Herefordshire Council’s decision to grant planning permission, which will entail manure spreading on fields which will flow into the River Wye, was unlawful.

The agricultural development is of a kind identified by Natural England, Natural Resources Wales and Herefordshire as capable of leading to increased phosphate and nitrate loads on the River Wye special area of conservation (SAC), which is a protected habitat. The main sources of these pollutants are sewage and agricultural run-off.

Herefordshire Council granted planning permission without carrying out an “appropriate assessment” of potential impacts to the River Wye SAC, or even screening for such impacts, as required by the Habitats Regulations. This was despite the fact that the proposed development involves the expansion of livestock farming, a consequent increase in manure production, and resultant spreading of manure on the fields which then runs off into watercourses.

The development site is in the very centre of the catchment (otherwise called the “watershed” or “contributing area”) of the River Wye. It is well-known, and acknowledged by Natural England, Natural Resources Wales, Herefordshire Council, Powys Council and Shropshire Council, that the integrity of the River Wye SAC is threatened by phosphates, nitrates and other nutrients.

In a witness statement post-dating the grant of planning permission, the council’s ecologist stated that it had been “obvious” to him that the development did not need to be screened for impacts on the SAC based on a mapping tool provided by Natural England. This mapping tool is not, and continues not to be, available to Mr Sahota or other local campaigners. Mr Sahota argues that the reliance on this mapping tool must be misguided, or an incorrect use must be being made of it, because there is nowhere for run-off from the site to go except to the River Wye SAC.

Furthermore, Mr Sahota argued that the council’s officers’ advice to councillors that because the site was not within the SAC, there were “therefore no likely significant effects” was wrong in law: developments outside an SAC can still have an effect on the SAC. Run-off into the SAC from manure spreading outside the SAC is already having significant impacts on its integrity.

Mr Sahota’s original application for judicial review was dismissed in the High Court and he applied for permission to appeal, arguing (among other things) that the refusal relied critically on erroneous or irrational interpretations of the evidence and based on findings not supported by evidence.

He said the judge gave considerable weight to what he understood to be information supplied by Natural England in response to consultations by the ecologist. The judge was, however, mistaken: no such information was sought from or supplied by Natural England.

The appeal will be heard by the Court of Appeal at a date to be set in 2022. David Sahota is represented by Ricardo Gama of Leigh Day and Alex Goodman of Landmark Chambers.

David Sahota said:

“This action is an excellent opportunity to make an impact on what is important. The River Wye and its tributaries are one of nature’s treasures, which I, along with others, have swum, canoed, fished and picnicked in and along. It is a tragedy that we are losing it.”

Leigh Day solicitor Ricardo Gama said:

“We know that the current protections of riverine habitats are failing to prevent their ecological degradation. The situation is made even worse when existing laws are not properly enforced. We therefore hope that this appeal with provide legal clarity as to the correct approach to screening out impacts of agricultural and other developments which will lead to run-offs or discharges into this important habitat.”