How is 'waste' defined on farms? The wider implications for farmers and local authorities

On 10 March 2025, the National Union of Farmers had its judicial review against the local planning authority for Herefordshire dismissed in the High Court.

The judge confirmed the lawfulness of the local planning authority policy, which included provisions that proposals for new livestock in farms in the area must provide the following:

1. Waste management plans on how their slurry is to be handled.
2. Demonstrate 'at least nutrient neutrality'.

This decision looked at the breadth of the local planning authority’s powers under the Town and Country Planning Act 1990 and has potential implications for the scope of local authority environmental protection across England and Wales.

In this article, we provide a background to the National Union of Farmers v Herefordshire Council & Ors case, reveal how the court responded and highlight the key takeaways for businesses that create waste.

Background

The location of the review is key to understanding the wider context of the ruling. While it's a special area of conservation, the River Wye has suffered from pollution in recent years, being downgraded from 'unfavourable – improving' to 'unfavourable – declining' in 2023 by Natural England, the main conservation public body in the UK. Pollution has led to the decline in the numbers of the Wye’s various species, such as Atlantic salmon. 

A 2021 joint study by Natural England and the Environment Agency discovered that 66% of the phosphate, which degrades water oxygen levels, present in the upper regions of the Wye and its Lugg tributary were caused by local agriculture.  River phosphate levels are raised due to a combination of fertiliser runoff, manure and sewage. Herefordshire itself is home to a large number of intensive poultry farms. 

In response to the levels of agricultural pollution in the Wye, the local planning authority proposed the Herefordshire Minerals and Waste Local Plan which was adopted and in force on 11 March 2024. The plan included a policy which seeks to enforce proper waste management for any additional animals on farms in the area. The policy also seeks to prevent these proposed livestock additions, and other waste management plans, from increasing further harmful nutrients into the surrounding environment. 

The National Union of Farmers had argued that the provisions in this policy would actually hamper the farming industry’s ability to implement environmentally beneficial upgrades to Herefordshire farms and would instead have the opposite effect. The National Union of Farmers submissions for judicial review of the local planning authority's policy were brought on the grounds that:

1. The policy goes too far in its definition of waste, encompassing slurry when this was not allowed under the England and Wales’ planning acts.
2. The policy means the whole agricultural unit would have to be at least nutrient neutral and that this was improper.
3. The local planning authority acted beyond their powers in seeking to extend the policy of nutrient neutrality without Natural England’s consent.
4. The National Union of Farmers wasn't properly consulted before the plan was enacted.
5. The local planning authority didn't provide legally adequate reasons on the policy’s controversial issues.

How did the court respond?

The High Court dismissed all of the National Union of Farmers' arguments:

1. The local planning authority was entitled to define 'waste' as encompassing slurry, even though this was arguably an extension of the relevant definition under the Town and Country Planning Act, because the local planning authority’s policy was consistent with the aim of preventing environmental harm.
2. The policy therefore wasn't improperly extending nutrient neutrality because the policy only extended to proposals and not the entirety of the agricultural holding. 
   The further three grounds were quickly dismissed on the basis that the policy had sound legal reasoning, as outlined above, and was endorsed by Natural England. As a result, the judge concluded that there was no need for the local planning authority to consult the National Farmers Union.

Conclusions

While unlikely to be the last word in this area of law, as the National Union of Farmers is currently considering an appeal to the Court of Appeal, this decision opens the door for other local authorities to enhance their environmental protection measures. 

Whilst Herefordshire is faced with particular environmental challenges, other local planning authorities may find that the local planning approach is easily adapted to deal with environmental issues in other geographies, environmental sensitivities and land uses. 

It stands to reason that all businesses that create substances that have the potential for environmental harm, whether or not traditionally classified as 'waste', should therefore pre-emptively consider their waste management schemes to properly account for the disposal of non-wastes. This will prevent harm to their local areas especially when considering new planning measures or new facilities. Waste management, haulage and treatment businesses may notice an increase in demand for their services to collect, treat and dispose of materials that are technically non-wastes. 

For further information and advice, please contact the business risk and regulation team.