Fish legal Loses Wye Case at Court of Appeal After Long Battle – Despite Planning “Error of Law”
After fighting to prevent the deterioration of the Wye in the current regulatory vacuum, MSA member organisation, Fish Legal, has lost one of its cases relating to the increasing numbers of poultry farms in the Wye SAC catchment.
The high density of poultry causes phosphate pollution and the decline of the river as an aquatic habitat and fishery – despite its protected status.
Poultry expansion
Earlier this year, Powys Council granted planning permission for two intensive poultry units up to 90,000 birds at Wern Haelog near Builth Wells next to the Wye. The proposal included a plan to export the manure and dirty water to an anaerobic digestor nearby. However, as the Brecon Beacons National Park Authority, Herefordshire County Council, and the Campaign for the Protection of Rural Wales (‘CPRW’) pointed out, the digestate would still contain very high levels of phosphates that would be spread on land within the catchment of the SAC.
But the council granted planning permission, arguing that what happens to the manure once It has been changed Into digestate Is "not material".
Fish Legal argued in the High Court in Cardiff that Powys had not considered the spreading of digestate within the Wye catchment – but was refused permission to proceed with a judicial review. Fish Legal then appealed to the Court of Appeal.
Error of law
Despite refusing Fish Legal’s appeal, Lord justice Lewison acknowledged that Powys’ position that the spreading of digestate was not material was “arguably” an “error of law”. But, nevertheless, Lewison LJ went on to say that the Council had conducted a full assessment of impact and had relied on Natural Resources Wales’ lack of objection in granting planning permission. In his short ruling he also suggests that the council could “rely on the existence of a regulatory regime, of which NRW was itself the regulator”.
Justin Neal, Fish Legal Solicitor commented, “This is obviously disappointing – not least for the river Wye. The difficulty we have is that although there is more than one way to describe the same assessment provided by the council, we can’t see where the spreading of digestate was considered. And NRW do not – as far as we are aware – regulate the spreading of digestate – nor is it fully regulated as a permitted activity. So, there are massive regulatory gaps where pollution is likely to occur.”
He continued, “For the time being, the Wye has become little more than a receptacle for pollution with no one really stepping in to turn things around. We suggest that NRW now confirms publicly that it does not regulate the spreading of digestate and to say what it intends to do to stop digestate fertiliser from causing pollution.”
While not succeeding in this legal route, MSA member organisations will continue to campaign and lobby for action to prevent the ongoing killing of our rivers from pollution and the horrendous impact it is having on salmon. We call on NRW to do more to enforce the regulations on farming, to properly protect our rivers. We call on the EA to robustly enforce the farming rules for water and other regulation to prevent the scourge of pollution from killing our fish, and we call on the governments in Westminster and Cardiff, to provide the funding and support to the regulators to enable them to fulfil their duties and properly protect our rivers.
A newly released BBC Wales programme highlights the issue further, and exposes the planning gap seen in Fish Legal's case. Do watch the programme here:
BBC iPlayer - BBC Wales Investigates - Whats Killing Our Rivers?
As an Alliance of six organisations, we will build on the existing work of our partners and maximise our impact by taking a coordinated approach and vital action in order to halt and reverse the decline of wild Atlantic salmon.
The goal of the Missing Salmon Alliance is to build an evidence-base to influence national and international decision-makers to regulate activities that adversely impact wild Atlantic salmon.
The Missing Salmon Alliance
The MSA is comprised of the following members:
Game & Wildlife Conservation Trust, Atlantic Salmon Trust, the Angling Trust with Fish Legal, The Rivers Trust and Fisheries Management Scotland.
https://www.missingsalmonalliance.org