Pesticide use as justification for the siting of a dwelling in the countryside?

A recent PAC Decision has considered whether the use of pesticides on nearby orchards can be an exceptional “health and safety” consideration to satisfy one of the exemptions to policy CTY10 of PPS21.

Policy CTY10

Policy CTY10 advises that planning permission will be granted for a dwelling house on a farm where three criteria, as listed in the policy, are met. The only criterion in dispute in the appeal was (c); that the new building is visually linked or sited to cluster with an established group of buildings on the farm and where practicable, access to the dwelling should be obtained from an existing lane.

Exceptions to Policy CTY10

The policy provides that exceptionally, consideration may be given to an alternative site elsewhere on the farm, provided there are no other sites available at another group of buildings on the farm or outfarm, and where there are either:

• ?demonstrable health and safety reasons; or
• verifiable plans to expand the farm business at the existing building group(s).

The Health and Safety Case – pesticide use

The appellant put forward a health and safety case concerning the use of pesticides to justify why a dwelling on Site A should be permitted. A spray drift analysis plan was submitted as part of the application with a wind rose demonstrating that the prevailing winds are emanating from the south and southwest. The appellant’s preferred site (Site A) was upwind so as to reduce the exposure to pesticide spray drift.

PAC consideration of the Health and Safety Case

The PAC considered that the appellant’s evidence was insufficient to satisfy CTY10. Paragraph 5.42 of the Justification and Amplification of Policy CTY10 places the onus on the applicant to submit appropriate and demonstrable evidence from a competent and independent authority to justify the siting.

?No independent evidence from a competent and independent authority

No independent evidence was presented by the appellant, who submitted that as a fifth-generation apple grower, he was competent to assess the impacts of pesticide use.? The appellant had also not submitted any information in respect of the current use of pesticides on the site.?

?Code of Practice for Using Plant Protection Products

The PAC considered the Health and Safety Executive’s Code of Practice for Using Plant Protection Products (the Code). The purpose of the Code is to advise on how to use pesticides safely. Advice in the Code regarding neighbouring properties reinforces the need to use the correct equipment and in the appropriate weather conditions. The Code advises that the farmer can consider whether extra measures are needed such as advising occupants when spraying will take place and spraying when neighbours are not at home, which are good practice.?

The PAC considered that it was relevant that wind direction was only one of the factors identified in the Code as contributing to pesticide drift and that in general such drift could be prevented or minimised by proper application and management of the pesticides.

?Ambiguity over the competent authority in determining health and safety issues in respect of pesticide use

Of note is that the Council’s EHO, when consulted, recommended consultation with other bodies such as the Health and Safety Executive, Public Health Agency and DAERA in respect of the impact of pesticide use.? It appears from the appeal that there is some ambiguity as to who is the competent “expert” authority on pesticide use.?

?Availability of an alternative site

?The availability of an alternative possible site meant that the exceptions to policy CTY10 had not been met. ?

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What could the appellant have done differently?

Whilst the appeal was allowed in respect of an alternative site, the refusal of the appellant’s preferred site underscores the need to carefully read and apply the relevant policies and where necessary, commission expert evidence to support a case.

Had the appellant submitted an expert report which demonstrated that all of the mitigation measures identified in the Code could not be applied in this case, the PAC may have taken a different view of Site A.? However, the fact that the appellant appeared to have control over the surrounding orchards, meant that in all likelihood the appellant would not have been able to establish a health and safety exception for Site A.