In 2004 there were four different areas of S & A Davies's Brierley Court development which needed to be distinguished:

1. So called "permitted development" rights granted by Herefordshire County Council (HCC) for the construction of a substantial tarmaced road across the fields and flood plain and the positioning of 300 caravans (together with electricity supply and sewerage pipework)

2. The sale for conversion of old farm buildings and land for non-agricultural occupation due to the effective relocation of the farm centre

3. Construction of Utility Building, Toilet Building and Siteworks for 300 unit Caravan Standing for farm worker accommodation and the construction of a Sewerage Treatment Plant and Pumping Station ( 2 separate planning applications)

4. The building of over 200 acres of polytunnels for strawberry production covering most of the farm

Other activities (such as Hedgerow Removal, Road Access Improvements, 30 acre Reservoir Creation, Packing Station Construction, Chill Store & General Purpose Building etc.) are either in process or yet to be applied for !

Since 2004, the situation has changed substantially (see elsewhere on this web).

HCC Planning Committee overwhelmingly rejected Planning Permission for the Utility Building etc. (Point 3 above) since this part of the development was considered to be contrary to the Adopted Leominster District Local Plan, contrary to the Adopted Leominster District Local Plan and because of concerns re arrangements for foul water disposal into the nearby Little Arrow river. The fact that S & A Davies had already started building major parts of this development in the absence of permission probably did not favour them in the committee's eyes.

AVRA also retained legal counsel, Sebastian Head, who spoke for us at the committee meeting. He argued most forcibly that, although the construction of the Utility Building etc. had clearly to be refused, the major problem was that of the polytunnels themselves and - despite HCC's legal opinion - these too should require planning permission!

HCC argue that the polytunnels fall outside the scope of planning control because:

1. The strawberries are planted into the ground, which will be depleted after two or three years, and the polytunnels will have to be relocated elsewhere in due course
2. Since the polythene sheeting is only stretched over the metal hoops for four months of the year, the polytunnels are only in place for four months of the year - supporting the "temporary structure" argument

In summary, Sebastian Head believed that this approach was untenable because:

- The appropriate statute refers to "structures" or "erections" which clearly describes the polytunnels

- Parliament granted automatic planning permission for such structures such as a gate, fence or wall or other means of enclosure; a porch outside the door of a dwelling house; etc.. If parliament intended such projects to fall within the scope of the regulatory regime, there is an obvious difficulty in arguing that a 230 acre polytunnel project is a matter of less significance in terms of its impact and therefore may be developed at will, beyond the control of the planning process.

- The landmark ruling in the Court of Appeal in Skerritts which unequivocally rejected the argument that - because a structure was temporary - it does not require planning permission. See also an interesting article on Planning Matters website

In Skerritts, the Court of Appeal rejected the argument that a marquee, of 40m x 17m, which was secured to the ground by spikes penetrating the soil and which was removed for four months of every year, fell outside the scope of the planning system.

After planning permission was refused, the County Court and the High Court have issued and upheld injunctions preventing S & A Davies completing the building works -see High Court Injunction and High Court Order

The caravans themselves, however, are still there and occupied as "permitted development" (?). And this is despite the fact that many of the workers housed here do not even work at Brierley Court Farm.

The so-called "Voluntary Code of Practice for the Use of Polytunnels in Herefordshire" has now been dropped by HCC following the Tuesley Farm legal outcome. Spanish Polytunnels now need planning permission.

Another case - very similar to Brierley Court in many ways but smaller - occurred in Surrey. This case, at Tuesley Farm run by Hall Hunter, also involves growing strawberries and is in the Waverley Borough Council's (WBC) area. No planning permission had been applied for. On 1st. July 2004, WBC decided to authorise enforcement action to remove 45 mobile homes, engineering works and the polytunnels that had been put on the farm. In this case, it appears that legal counsel's advice entirely supported AVRA's counsel in that the polytunnels themselves require planning permission !
(see also our Section "Other Areas")

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