For All The Posts I’ve Blogged Before…

There’s now an ask.

The blog posts, clubhouse events, any webinars you might have sat through in desperation through the last 18 months, they are all free, no charge.

Weirdly enough, planning lawyers just love talking about planning law.

Why did we become lawyers? Not so weirdly, but maybe we don’t talk about it enough, it wasn’t just for the sheer joy of sometimes winning an argument, completing a cryptic-crossword-puzzle of an agreement or working out what some statutory provision actually means. It wasn’t just because for us in the private sector of course there’s the money. It was because, maybe just a bit, maybe sometimes forgotten in the thrill of the CIL Regulations, at the root of it all we know that…

law matters.

It’s the law that protects those who find themselves homeless through no fault of their own, in a financial tangle not of their own making, discriminated against, exploited or needing legal protection from those around them.

And if you have a problem like that, you don’t need a well-paid planning lawyer, you need a proper hero of a lawyer, often just working as an unpaid volunteer, within a law centre or pro bono agency.

My ask is that, if you have got any value out of any of this stuff – the blog posts, the on line events – in all conscience please do consider clicking on this link and donating £10, or whatever you think fit, to the London Legal Support Trust. It’s never been more necessary.

I’m doing the London Legal Walk on Monday with 22 colleagues. 10 km is no big deal as an endurance event, this is no marathon but it’s still a big deal in terms of the hundreds of thousands of pounds that it raises. In previous years there have been 15,000 or so lawyers taking part. Perhaps a good afternoon to stay away from EC4.

We are walking with the Lord Chief Justice and thousands of lawyers to raise funds for the London Legal Support Trust which funds Law Centres and pro bono agencies in and around London.

Two-thirds of the UK population don’t know how to get legal advice and 14 million people who live in poverty can’t afford to pay for it. The London Legal Walk raises vital funds to ensure access to justice for some of our communities’ most poor and vulnerable people.

Your support is needed now more than ever with the long-term challenges brought on by the Covid-19 pandemic. Reduced funding in the charity sector means advice agencies are doing all they can to meet rising need despite a drastically restricted income.

The event supports over 100 legal advice agencies in London and the South East. We know that these agencies do a fantastic job in preventing homelessness, resolving debt problems, gaining care for the elderly, fighting discrimination and exploitation.

Please sponsor our walkers as generously as you are able.

Many thanks for your support.

Sorry that there’s no planning law in this post. More round the corner I’m sure! And be sure to tune into Clubhouse at 6 pm this Tuesday 19 October 2021 , when Charles Banner QC will be leading a session on all things Hillside – it’s been almost a year since the Court of Appeal’s judgment. Now that the dust has settled (has it?) and while we still wait to see whether the Supreme Court will grant permission to appeal, what are its practical implications? Link to app here.

Simon Ricketts, 15 October 2021

Personal views, et cetera

Extract from photograph by Craig Whitehead, courtesy Unsplash

Development Embargos: Nitrate, Phosphate & Now Water

Just as solutions are beginning to emerge to unlock the development embargos that have been in place in many areas due to the nutrient neutrality issue, areas of Sussex now have a new problem: water.

For over two years now, where the integrity of special areas of conservation or special protection areas (areas of nature conservation importance previously protected at EU level) are already under stress due to nitrate or phosphate pollution (usually due to historic farming practices), Natural England has been advising local planning authorities that an appropriate assessment cannot be reached under regulation 63 of the Conservation of Habitats and Species Regulations 2017 to the effect that further development, causing additional sewage or surface water run-off will not affect the integrity of nearby SACs and SPAs unless measures will are secured to achieve neutrality, either on or off site. Under the 2017 Regulations, unless a development can pass that appropriate assessment test it’s stuffed, no go.

I first wrote about the nitrates issue over two years ago in my 29 June 2019 blog post Another Green World: The South Coast Nitrate Crisis.

Developers on large sites have increasingly looked for suitable onsite measures and some authorities have been able to make available offsite measures to allow development to proceed.

Natural England’s advice on achieving nutrient neutrality for development in the Solent region (5th edition, June 2020) survived a legal challenge from campaigners who argued that it was not stringent enough (see R (Wyatt) v Fareham Borough Council (Jay J, 28 May 2021)) and Turley’s Peter Home and James Cording provided a useful update as to progress in finding solutions to what is otherwise a complete bar to development: Solent nitrogen neutrality: 18 months on, where are we now? (Turley, 11 November 2020).

Natural England’s initial advice in relation to nitrate neutrality was then followed by advice as to the need for phosphate neutrality, for instance in certain areas of Somerset and Cornwall, eg this is Natural England letter dated 15 April 2021 in relation to potential effect of phosphates on the River Camel Special Area of Conservation

Topically, HBF’s director for cities, James Stevens, has written an article Wading through the effluent in the October 2021 edition of Housebuilder magazine as to the problems being caused to housebuilders by needing to achieve nutrient neutrality, even where a technical solution can be found – the average costs being apparently over £5,000 per dwelling.

But those involved with development in Horsham, Crawley and Chichester, which fall within the Sussex North Water Supply Zone, are all now faced with an even more challenging issue: the potential need to demonstrate water neutrality. Natural England has become increasingly concerned as to the impact of groundwater abstraction on the Arun Valley SPA, SAC and Ramsar site. It has recently published its Position Statement for Applications within the Sussex North Water Supply Zone – interim approach (September 2021):

Natural England has advised that this matter should be resolved in partnership through Local Plans across the affected authorities, where policy and assessment can be agreed and secured to ensure water use is offset for all new developments within Sussex North. To achieve this Natural England is working in partnership with all the relevant authorities to secure water neutrality collectively through a water neutrality strategy.

Whilst the strategy is evolving, Natural England advises that decisions on planning applications should await its completion. However, if there are applications which a planning authority deems critical to proceed in the absence of the strategy, then Natural England advises that any application needs to demonstrate water neutrality. We have provided the following agreed interim approach for demonstrating water neutrality:

The relevant authorities are now advising applicants accordingly. Crawley Borough Council’s website for instance now says this:

Developers / planning applicants who can demonstrate water neutrality such as having significant water efficiency measures built into their development and by providing offsetting measures to reduce water consumption from existing development, and who are able to enter into legal obligations to secure these measures, would be able to proceed, subject to the planning process. The onus is on developers and planning applicants to demonstrate that they can deliver water neutrality for their proposals. For applications in these circumstances which are not able to do this, the Local Planning Authority [the council] when determining a decision, would unfortunately have no choice but to refuse them, as a matter of law, in light of the Natural England Statement.

The Local Planning Authority [the council] has written urgently to agents of affected applicants advising them of Natural England’s position and advising them that, for the time being, all applications where a positive decision / recommendation was / is to be made on an application will have to be delayed if they are within the Southern Water supply zone, until the matter of water neutrality can be addressed.”

Without speedy solutions, this is going to create real problems both for individual developers in the area and for authorities in bringing forward deliverable local plans.

No doubt there will be solutions in due course (and questions do have to be asked as to whether the issue really lies with the water abstraction licences, which presumably were the subject of appropriate assessment under the 2017 Regulations and their statutory predecessors, rather than with those who are seeking to have access the abstraction of which has already been licensed!) but how long will that take and at whose cost?

In the meantime, what an unplanned mess.

Simon Ricketts, 9 October 2021

Personal views, et cetera

Talking of Planning Law Unplanned…our clubhouse session will tackle this subject in more detail with practical, authoritative, input from special guests including Peter Home (mentioned above), Tim Goodwin, Charlie Banner QC, Richard Turney and others. Do join us at 6 pm on Tuesday 12 October. Link to app here.

Ecology By Numbers: Biodiversity Net Gain In The Environment Bill

We’re probably all increasingly familiar with the basic principles of biodiversity net gain. Even ahead of the statutory system being introduced which is the focus of this post, there is a growing policy basis for authorities to use at least a basic version of what is set out in the Environment Bill (although without any formal national prescription yet as to, for instance, the extent of net gain required or national process for the purchasing of credits).

The Environment Bill is reaching its final stages – report stage in the House of Lords is on 13 October 2021 and it then finally returns to the Commons (subject to the possibility of there then being some ping ponging between the Houses in relation to the Lords amendments I referred to in my 17 September 2021 blog post On Reshuffle Day, In Another Part Of The Forest) before receiving Royal Assent.

DEFRA indicated back in 2019 that once the Bill is enacted there will be a two year transitional period before the provisions on biodiversity net gain come into effect, but in that period there is going to be a lot of important stuff happening (and with the delays to the Bill whilst progress has been made on other aspects of the system might there be a prospect of that two years being abbreviated?). The robustness, and workability, of the system depends on:

⁃ sensible and efficient, but water-tight, administrative processes being set out in secondary legislation by way of regulations, for instance in relation to the pricing, availability and use of biodiversity credits

⁃ the availability of good data and methodologies (in relation to which Natural England has made good progress)

⁃ standardised, arrangements for securing long term (30 years plus) management arrangements by way of conservation covenants (not covered in this post but another crucial element of the Bill) and, our old friend, section 106 agreements

⁃ a workable system of monitoring and enforcement.

Before I briefly summarise the provisions on BNG in the Bill, given that the BNG system is going to live on for some time on a purely policy basis, I thought it was worth setting out that policy basis.

First of all there are relatively general references in the NPPF (extracts below showing amendments from the 2019 version).

There is more useful detail in the “net gain” passages within the natural environment section of the Government’s planning practice guidance.

Local authorities are under a general duty under Section 40 of the Natural Environment and Rural Communities Act 2006 to have regard, in the exercise of their functions, to the purpose of conserving biodiversity, but the level to which they can prescribe particular approaches to BNG and the level of net gain required depends on whether they have policies in place addressing these matters – with the weight to be attached to the policy depending on the nature of the document.

Pre-legislation we already of course have Natural England’s biodiversity metric 3.0 to work from, with much accompanying guidance, including guidance on using the calculation tool.

Turning to the Bill itself, the provisions on biodiversity net gain comprise clauses 99 to 104 and schedules 14 and 15

In brief:

Standard condition on planning permissions

Clause 99 introduces schedule 14, the effect of which I briefly summarise as follows:

• “The biodiversity gain objective is met in relation to development for which planning permission is granted if the biodiversity value attributable to the development exceeds the pre-development biodiversity value of the onsite habitat by at least the relevant percentage” which is 10% or such other percentage as is set out in regulations.

• The biodiversity value attributable to a development is “the post-development biodiversity value of the onsite habitat, (b) the biodiversity value, in relation to the development, of any registered offsite biodiversity gain allocated to the development”, and (c) the biodiversity value of any biodiversity credits purchased for the development”.

• The biodiversity metric is a document for measuring biodiversity value and it is to be published and updated from time to time by the Secretary of State.

• Pre-development biodiversity value for the site is measured as at the date of an application for planning permission (or the applicant and local planning authority may agree an earlier date). If activities are carried out on the land on or after 30 January 2020 without planning permission which reduce the biodiversity value of the onsite habitat, the biodiversity value is to be taken to be that which was the case immediately before those activities (a measure to avoid land owners intentionally reducing the pre-development biodiversity value).

• Post-development biodiversity value is “the projected value of the onsite habitat as at the time the development is completed”. There must be a condition or planning obligation requiring the habitat enhancement to be maintained for at least 30 years.

• Registered offsite biodiversity gain means any habitat enhancement where there is a legal commitment to carry it out and the enhancement is recorded in the biodiversity gain site register (see below).

• “Every planning permission granted for the development of land in England shall be deemed to have been granted subject to the condition” that a biodiversity gain plan has been submitted to and approved by the relevant planning authority.

• The biodiversity gain plan must show how the biodiversity gain objective is to be met either through on site enhancement by registered offsite biodiversity gain or by purchase of biodiversity credits. Regulations will set out the procedure the planning authority is to follow in determining whether to approve a biodiversity gain plan and the factors to be taken into account. At the moment there is no prioritising as between on-site, off-site and the purchasing of credits.

• The standard condition does not apply to development approved under a development order, on Crown land or any type of development which is specified within regulations as exempted.

• Regulations may modify or exclude these provisions for “irreplaceable habitat” and “must make provision requiring, in relation to any such development, the making of arrangements for the purpose of minimising the adverse effect of the development on the biodiversity of the onsite habitat”.

• There will be provisions in regulations to deal with the outline planning permissions, retrospective planning permissions and so on.

NSIPs

Clause 100 introduces schedule 15, which sets out how BNG works with in relation to nationally significant infrastructure projects, and the effect of which I briefly summarise as follows:

• If there is a national policy statement covering the type of development, it will be down to whether the national policy statement contains a biodiversity gain statement, in which case the biodiversity gain objective contained in the statement must be met.

• If there is no national policy statement covering the type of development, it will be down to whether the Secretary of State has made a biodiversity gain statement for that type of development, in which case the biodiversity gain objective contained in the statement must be met.

Biodiversity gain register

Clause 101 enables the Secretary of State to make regulations providing for a register of biodiversity gain sites – land which is legally required by conservation covenant (a binding mechanism provided for elsewhere in the Bill) or planning obligation to be maintained for habitat enhancement for at least 30 years and the “enhancement is made available to be allocated (conditionally or unconditionally, and whether for consideration or otherwise) in accordance with the terms of the covenant or obligation to one or more developments for which planning permission is granted”. The regulations will provide for the register to be open to the public, who should maintain it (the Secretary of State, Natural England “or any other person”), the information it includes and the procedure to be followed for a site to be placed on the register.

Biodiversity credits

Clause 102 allows the Secretary of State to “make arrangements under which a person who is entitled to carry out the development of any land may purchase a credit from the Secretary of State for the purpose of meeting the biodiversity gain objective”, including the biodiversity value of a credit, its pricing and procedural arrangements, including “reimbursement for credits purchased for development which is not carried out”. “In determining the amount payable under the arrangements for a credit of a given value the Secretary of State must have regard to the need to determine an amount which does not discourage the registration of land in the biodiversity gain sites register.” Payments must only be used by the Secretary of State for the carrying out of habitat enhancement works on land in England, purchasing the necessary land and operating the arrangements. He must report annually on payments received/used.

This is such a big subject and it’s only going to get bigger.

Some further reading:

Natural England’s blog post Biodiversity Net Gain – more than just a number (21 September 2021)

Explanatory notes on the Bill as it stood on 26 May 2021.

Net gain: summary of responses and government response (DEFRA, July 2019)

My 30 March 2019 blog post Biodiversity Net Gain: A Ladybird Guide.

Simon Ricketts, 2 October 2021

Personal views, et cetera

👋 For some further listening and discussion on this very subject, do join our clubhouse Planning Law Unplanned event at 6 pm on 5 September. Join the app here.