Analysis: Polytunnel ruling delights fruit growers

Sector hails decision on Herefordshire polytunnels as a victory for common sense, Rachel Sixsmith reports.

Fears the entire country would be shrink-wrapped in polythene were unfounded as area covered same as 10 years ago - image: Haygrove
Fears the entire country would be shrink-wrapped in polythene were unfounded as area covered same as 10 years ago - image: Haygrove

Soft fruit growers have welcomed the Court of Appeal's overturning of a decision made by the High Court against polytunnels erected by soft fruit grower Eric Drummond on his Herefordshire farm.

The Court of Appeal's judgement was handed down last week, but the case began more than a year ago when the local Wye Valley action group made a legal challenge to the original planning approval from Herefordshire Council for Drummond to put up the polytunnels.

The action group won its case in the High Court in December 2009 on the grounds that the council had made an "error of law" by failing to carry out an environmental impact assessment, which it said was required because the site lay in a "semi-natural area".

The NFU applied to act as an intervener because of concerns about the judgement and its wider impact in the industry. In particular, it was concerned that the High Court deemed the site, which had been under soft fruit crop and arable rotation for a number of years, a semi-natural area as a matter of law just because it falls in an area of outstanding natural beauty (AONB) and despite the fact that it has been used for food production for many years.

NFU chief legal adviser Nina Winter said: "With support from its legal assistance scheme, the NFU explained to the Court of Appeal why it had concerns with the High Court decision. We have supported Herefordshire's stance and we were pleased that the council was granted leave to appeal. The Court of Appeal ruling overturns the High Court decision and clarifies the legal position for farmers on semi-natural land."

In giving the leading judgement last week, Lord Justice Richards said: "But there does seem to be a fundamental contrast between semi-natural areas and land that is subject already to intensive cultivation. Natural England's guidance expressly excludes all arable and horticultural land from the types considered semi-natural. That is a proper reflection of the meaning of the term."

He added: "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."

Drummond was unavailable to comment as Grower went to press. However, Herefordshire-based grower and NFU horticulture board member Anthony Snell said: "The ruling gives soft fruit growers more confidence. Eric Drummond did everything required of him by the planning authorities, but his application was turned down on a tiny fault.

"We have also just had our planning permission passed for our soft fruit business. Although the process is a huge cost, there is a lot more common sense around the decision-making process now and more recognition that we do need these structures.

"A few years ago there was a fear that the whole of Britain would be shrink-wrapped in polythene. That's not true - we are a very small industry. It's a tiny proportion of the UK's productive land and the area covered in tunnels is no more than it was 10 years ago."

He added: "There's been a huge amount of work done by the industry to be responsible and meet all of the environmental and planning requirements. Going forward, we will have a better, more stable industry."

Growers in Herefordshire have to go through a lengthy process that requires them to follow guidelines in the county's Polytunnels Supplementary Planning Document, which it adopted in 2008. Before then, the council had decided to require planning permission for all polytunnels but changed its policy to avoid a judicial review initiated by soft fruit grower Neil Cockburn, based in the Wye Valley AONB.

Cockburn said of this latest case: "It's very good news for the industry. Common sense has prevailed in the courts. Land that has been harvested on for centuries cannot be semi-natural - it clearly has been cultivated. It's time for people to let us get on with producing food for the nation."

NFU president Peter Kendall said last week: "Today's 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 relying on foreign imports."

CASE HISTORY

EC Drummond was granted planning permission by Herefordshire Council in 2008 for polytunnels covering 255ha, of which no more than 54ha would be covered at any one time.

But the local campaign group opposed this decision and won its High Court challenge against the council in December 2009.

Then, the deputy judge in the High Court held that the council had made an "error of law" by failing to require an environmental impact assessment - required by law in certain circumstances before granting permission - and quashed its decision.

The deputy judge ruled that an assessment was necessary because the site was a "semi-natural area" as a matter of law.


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