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  6. Key legal ruling over polytunnels

Key legal ruling over polytunnels

The Court of Appeal has overturned a decision by the High Court against polytunnels erected on a farm in Herefordshire. The National Farmers’ Union (NFU), which acted as intervener in the case, called the ruling “a victory for common sense”.

The latest judgment followed a legal challenge brought by a Wye Valley action group, which objected to an 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 was in a “semi-natural area”.

The NFU applied to be an intervener in the subsequent appeal court case because of the implications of the High Court judgment and the wider impacts it could have on the industry.

The farmers’ organisation was particularly 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 regarded as a semi-natural area as a matter of law because it fell within an Area of Outstanding Natural Beauty and was adjacent to other areas under statutory designations.

NFU President Peter Kendall said: "The decision from the Court is great news and a victory for common sense.”

NFU chief legal adviser Nina Winter said: "The NFU had a number of concerns about the High Court judgment and in particular the High Court’s finding that the site was a semi-natural area as a matter of law. This decision from the Court of Appeal overturns the High Court’s decision, and in our view, clarifies the legal position for farmers on when land is ‘semi-natural’."

Giving the leading judgment, Lord Justice Richards said: "There does seem to me 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 of land considered to be semi-natural areas. In my view 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."

Herefordshire Council has welcomed the ruling and advised all interested parties “to examine the implications of this carefully”.


Roger Milne

27 January 2011