8. Legal risk

This section explains four significant cases and links to the recommended policies within the toolkit.

1. The National Farmers’ Union v Herefordshire Council

This ruling demonstrates that councils can and should require more information in Environmental Impact Assessments regarding plans to manage waste from ILUs. Environmental Impact Assessment Regulations 2017 are designed to ensure that the environmental impact of a project is exposed to public debate and considered in the decision-making process.

The National Farmers Union (NFU) challenged Herefordshire Council on its definition of manure and slurry as agricultural waste in its Minerals and Waste Local Plan. Herefordshire’s plan included:

1. Text to set out that slurry from livestock units should be defined as agricultural waste and must therefore be handled in accordance with the council’s rules for waste – i.e. that it will be used and disposed of in a way that prevents harm to the environment.
2. A requirement for planning applications that intensive livestock units must state how waste from the whole agricultural unit will be managed – covering waste spread both on-site and sent off-site, including for anaerobic digestion.
3. A requirement for proposed factory farms within the River Wye and River Clun to demonstrate nutrient neutrality, meaning they don’t worsen nutrient pollution, and they meet the requirements of the Conservation of Habitats and Species Regulations 2017.

The High Court judgment ruled in favour of Herefordshire Council, determining that manure and slurry produced on intensive farms can be classified as waste. This has significant implications for the information required in Environmental Impact Assessments from planning applications for ILUs and empowers councils to set requirements that ILU applications contain waste management plans for on-site and off-site activities.

There are several aspects of the Herefordshire v NFU ruling that are relevant. Including:

1. Reliance on other regulations such as the Farming Rules for Water to ensure proper off-site manure and slurry management. The Herefordshire case demonstrates that such regimes are not always effective in preventing environmental harm.
    
2. Lack of information on off-site management. This prevents a proper assessment of the potential environmental impacts of the development and may render the environmental impact assessment incomplete.

Full ruling here.

See the recommended local plan policies in the toolkit.

2. R (Finch) v Surrey County Council [2024] UKSC 30

In June 2024, the Supreme Court clarified the circumstances in which direct and indirect GHG emissions for planning proposals must be assessed as a matter of law. In essence, an environmental assessment must be made of a likely significant effect where: (i) a causal test is met between a proposal and the effect (i.e. GHG emissions); and (ii) there is an evidential basis or methodology on which to base an assessment.

For intensive livestock units, ‘direct’ emissions include those produced by animals on-site, and indirect emissions are associated with feed production, animal transport, processing, manure management and end-use.

In April 2025, King’s Lynn and West Norfolk Borough Council held the Finch ruling to be relevant to intensive livestock units, judging accordingly that the absence of a greenhouse gas assessment in an application for an intensive livestock facility was grounds for planning refusal. From the planning report:

“The Council is required to consider the significant effects of the project on the environment, including the impact of the development on climate change. Insufficient environmental information has been submitted to enable the Council to reach a view and as such the application is contrary to Local Plan policy CS08 and new Local Plan policies LP06 and LP18, and the NPPF.”

The application was unanimously refused on 3 April 2025. The report also included the following regarding applications that claim that their operations are ‘low emissions’ or relatively lower impact than an alternative developer: “It is legally irrelevant for the purposes of an EIA that the Applicant may be doing better than its competitors”. All significant impacts must be assessed set out clearly and transparently in an ES.

Finch and subsequent cases have therefore confirmed that comprehensive environmental impact assessments are integral to decision making processes, and that in the absence of legally compliant EIA processes the courts may quash the granting of planning permissions.

Full ruling here.

See the recommended local plan policies in the toolkit.

3. R (Caffyn) v Shropshire Council [2025] EWHC 1497 (Admin)

In this landmark case, the High Court quashed Shropshire Council’s decision to approve a 200,000-bird intensive poultry unit after finding two major legal failings:

1. First, the council had not lawfully assessed the environmental impacts of spreading manure (in digestate form) on third-party land, in breach of the Environmental Impact Assessment (EIA) Regulations 2017.
2. Second, it failed to carry out a lawful Habitats Regulations Assessment by excluding the cumulative impacts of other projects subject to the environmental permitting regime.

The judgment makes clear that local planning authorities must:

• Consider the off-site impacts of manure spreading as part of their EIA.
• Include projects requiring environmental permits—not just those going through planning—in any in-combination assessment under the Habitats Regulations.

This precedent has significant implications for planning decisions related to intensive livestock units and nutrient pollution in sensitive catchments. Councils that fail to take these impacts into account could be exposing themselves to legal and reputational risk, as well as exposing their constituents to harmful environmental impacts.

Full ruling here.

See the recommended local plan policies in the toolkit.

4. R. Squire v Shropshire Council [2019]

In this case, the Court of Appeal quashed a planning application approved by Shropshire Council for an intensive poultry unit rearing 210,000 birds for the following reasons:

1. The EIA was unlawful because the likely significant effects of odour and dust arising from storage and spreading manure (including on third party land) weren’t considered.
2. Shropshire Council unlawfully relied on the Environment Agency to monitor the storage and spreading of manure on third party land when this was outside of the scope of the permitting scheme.

As a result of this ruling, local planning authorities must:

• Ensure EIAs take into account the direct and indirect likely significant effects of intensive livestock units which includes spreading manure on third party land.
• Assess any gaps in monitoring provision to identify the full scope of their responsibility.

Full ruling here.

See the recommended local plan policies in the toolkit.