Implications of NE’s updated generic Nutrient Neutrality Methodology and updated catchment calculators referred to on page 4 of its 16 March 2022 letter
The updated methodology and calculators are appended to the letter, which advises that individual authorities consider how to transition to “the new tools and guidance”.
My blog post focused on the implications for areas not previously caught by nutrient neutrality issues but of course the guidance also creates an element of uncertainty for areas already caught, where good progress has been made towards solutions, if calculations need to be amended and given that there can be no certainty as to what transitional period (if any) each authority will allow for.
Examples of progress
A huge amount has gone into developing strategic mitigation solutions, but it is inevitably complicated – involving multiple land interests, commercial arrangements, local authority joint working, robust survey work and ecological analysis. The Solent nutrient market pilot is a great example – see this LinkedIn post by Simon Kennedy last month, strategic environmental planning officer for the Partnership for South Hampshire.
As another example, in Kent, Ashford Borough Council is progressing with a strategic mitigation solution in relation to potential effects on Stodmarsh Lakes, taking a report to cabinet on 31 March 2022.
Let’s hope that the new advice does not slow down progress in relation to these initiatives. Let’s also hope that these pioneers pave the way for a much faster roll out of solutions for the additional areas now caught.
Another dark cloud?
The Natural England advice letter also referenced last year’s High Court ruling, R (Wyatt) v Fareham Borough Council (Jay J, 28 May 2021), which is currently subject to an appeal – which the Court of Appeal will hear in the first week of April 2022. The advice should be regarded as provisional until the outcome of that case. The concern is that the case concerned a challenge to Natural England’s 2020 advice on achieving nutrient neutrality in the Solent region on the basis that the advice, in effect, was not stringent enough – see our Town Library summary of the first instance ruling prepared last year by my colleague Safiyah Islam. The court rejected the challenge but if the Court of Appeal takes a different stance then Natural England may need again to reconsider its methodology.
Reserved matters and pre-commencement conditions
One particularly unfair aspect of the way in which many local planning authorities are applying Natural England’s advice is to assert that if the necessary Conservation of Habitats Regulations assessment work was not done at planning permission stage (which will often not have been the case if the nutrient neutrality issue had not been identified by Natural England at that point) it must now be done at reserved matters stage, in the case of an outline planning permission, or at the stage of discharge of any pre-commencement condition, in the case of a full planning permission.
This of course cuts across the traditional planning law tenet that the planning permission stage is the point at which the principle of the development is determined to be acceptable, with subsequent approvals serving to define the detailed scale and disposition of development within the tramlines of what has been authorised by way of the permission. The authorities’ stance means that planning permission no longer gives any certainty as far as purchasers and funders are concerned and is a real impediment to market certainty and confidence. Who knows what equivalent restrictions lie ahead, after all? Even if your area is not affected at present, this should be of concern.
Local planning authorities appear to base their position on a decision of the High Court (i.e. a first instance ruling, not the Court of Appeal or Supreme Court) in R (Wingfield) v. Canterbury City Council (Lang J, 24 July 2019), but surely the case is capable of being distinguished in at least the following ways:
• The basic facts were different – a claimant was seeking to quash the outline planning permission because the LPA had failed to carry out appropriate assessment in a lawful manner. The developer and LPA had accepted there was a breach but had sought to rectify it by carrying out appropriate assessment at reserved matters stage – which the court agreed remedied the breach. This was not a case where the developer was challenging the ability of the LPA to undertake appropriate assessment at reserved matters stage or indeed to require appropriate assessment at that stage.
• Lang J relied in her reasoning on the Habitats Directive and interpretation of the Directive in rulings of the Court of Justice of the European Union. That was permissible at that time but since 1 January 2021 is no longer how the UK courts are able to approach these issues. The Habitats Regulations are now to be interpreted on their own terms without reference to the Directive. This potentially gives the UK courts the opportunity to ensure that the approach to assessment in relation to the stages of decision making allowed for in the Town and Country Planning Act 1990 are consistent with the legislative framework of the 1990 Act – i.e. issues of principle are for outline permission stage, with the outline permission setting the parameters for subsequent more detailed decision making at reserved matters stage and discharge of other conditions – but without the principle of the basic acceptability of the development being able to be re-visited at those later stages.
It should also be noted that regulation 70 of the 2017 Regulations is headed “grant of planning permission” and provides that the “assessment provisions” apply to specified categories of decision. None of these is a decision to grant reserved matters approval, or a decision to discharge a pre-commencement condition.
Is anyone aware of this issue having been tested, on appeal or in litigation post 1 January 2021? Or is everyone being terribly British and waiting patiently for strategic solutions to be found to all of these neutrality issues before their reserved matters and pre-commencement conditions can be signed off? I suspect that some permissions will expire in the meantime. In my view this is not acceptable, or warranted, but am I a voice in the wilderness here?
Just to note that there was also a Welsh case on nitrates last week, R (National Farmers Union of England and Wales) v Welsh Ministers (Sir Wyn Williams, 23 March 2022). Welsh farmers are unhappy about the Welsh Government ending, post-Brexit, certain dispensations as to the amount of livestock manure that can be deposited on grassland. The claim, based on an asserted breach of legitimate expectation, as well as lack of rationality, failed.
This coming Tuesday 29 March at 6pm we will be focusing on all of these Natural England neutrality issues: “More Natural England Development Bans – What To Do?” – there is so much to cover with our panellists, who will include Charles Banner QC, Mary Cook, Tim Goodwin (Ecology Solutions) and Peter Home (Paris Smith). Link here.
Developers face some immediate additional impacts on their proposals as a result of two advice letters written by Natural England this week. Some additional guidance has been published by DLUHC and DEFRA. DEFRA has published its nature recovery green paper, setting out its options for reform of nature conservation legislation and processes, together with a summary of the findings of its HRA review working group.
On 16 March 2022 Natural England set out in a letter to local authorities its “advice for development proposals that have the potential to affect water quality in such a way that adverse nutrient impacts on designated habitats sites cannot be ruled out.” With appendices it runs to 25 pages. The letter isn’t online but you can see it via a LinkedIn post by James Stevens (Centre for Cities). 27 new catchment areas (covering 42 new local authorities) have been added:
This news will be unwelcome for those seeking to deliver development, and those looking to accommodating local housing needs, within the affected areas. Planning permissions will not be issued unless Natural England can be satisfied that the effects on protected habitats cannot be fully mitigated, whether by on-site or off-site solutions. There will be delays and, at best additional cost. The advice may also of course have implications for plan making in the 42 local authority areas.
“Many of our most internationally important water bodies are designated as protected sites under the Conservation of Habitats and Species Regulations 2017. Under the Habitats Regulations, competent authorities, such as local planning authorities and the Environment Agency, must assess the environmental impact of planning applications or local plans. As a result of these regulations and European case law, Natural England has advised that in areas where protected sites are in ‘unfavorable condition’ due to nutrient pollution, Local Planning Authorities can only approve a project if they are certain it will have no negative effect on the protected site.
Following further work to understand the sources of site deterioration, Natural England has today issued updated advice and support to the 32 Local Planning Authorities currently affected by nutrient pollution, as well as 42 new LPAs. So far this approach has too often been complex, time-consuming and costly to apply, and government is clear that action is needed to make sure that we both deliver the homes communities need and address pollution at source.
Firstly, to help all Local Planning Authorities affected to navigate this requirement, Natural England have published a “nutrient calculator” to enable development to take place in a sustainable way. The Government is offering £100,000 to each affected catchment to support cross-Local Authority work to meet Natural England requirements and enable development to continue.
These solutions are pragmatic short-term steps but do not amount to a permanent solution that will improve water quality and allow sustainable development to proceed, and so we are going further. The government already has highly ambitious plans to reduce nutrient pollution from both agriculture and sewerage works and has further plans for the future. We have also secured a series of pledges from water companies to provide new funding for nature-based ‘strategic solutions’ to tackle nutrient pollution. We welcome the new and proactive investment from Severn Trent Water, United Utilities, South West Water and Yorkshire Water in collectively investing an additional £24.5m in reducing nutrient pollution affecting these sites, including nature based solutions. We will work with the wider industry to deliver further action, as far as possible.”
Joanna Averley, the Government’s chief planner, has published a newsletter on the issue and written to affected local authorities. Under “What does this mean for decisions and plans” she says:
“For planning applications in the affected areas, this means you need to consider the possibility of adverse effects, as a result of additional nutrient loads (including from residential developments); as part of a Habitat Regulations Assessment (HRA). In practical terms, this means that before granting any new permissions following the receipt of the Natural England advice, you will need to be confident that the development in question does not require nutrient neutrality to be acceptable under the regulations or that nutrient neutrality is secured, as part of the proposal.
The nutrient neutrality methodology allows for mitigation to be secured to ensure there are no adverse effects. There may be a need to reconsult Natural England and consider requesting additional information. When undertaking an appropriate assessment, to consider mitigation and ensure there are no adverse effect as part of a HRA, there is a statutory 21-day consultation with Natural England.
I appreciate that this will have an immediate impact on planning applications and appeals in affected areas. There may be a need to reconsider the acceptability of current proposals, in light of the advice issued and you may need to consider seeking further information from applicants and reconsult as appropriate. In this situation you should follow the usual process of requesting a reasonable extension of time as necessary.
We recognise that in the newly affected areas, it is unlikely for there to be mitigation solutions in-place or readily available and so the ability for development to be made acceptable will be necessarily limited in the short term. As we have seen in catchments already affected by similar advice, it may take time for applicants to secure mitigation to be able to demonstrate neutrality.
As set out in the National Planning Policy Framework, I would encourage you to approach decisions on proposed development in a positive and creative way . This should include working with developers to identify mitigation solutions, and may be aided by the use of local validation lists to clarify the level of information that is required to adequately consider proposals in the context of nutrient neutrality. I realise that the issuing of this advice may be particularly challenging in relation to plan making. Our Local Plans team will engage with those local authorities who are facing challenges to understand what support can be provided to enable plans to continue to progress, such as the funding and PAS online workshops outlined below.
We are considering wider ramifications for this advice and are actively reviewing the relevant sections of the Planning Practice Guidance to ensure it provides the best support for decision-making and plan-making in-light of the challenges of nutrient neutrality. We also recognise that there may be implications for the Housing Delivery Test and 5 Year Housing Land Supply and will keep the situation under review.”
Recreational pressure on Chilterns Beechwoods Special Area of Conservation
We are all well aware by now of the issue of recreational pressure on protected areas which has led to, for instance, the whole SANGs (suitable alternative natural greenspace) industry – initially the pragmatic solution arrived at in relation to the Thames Basin Heaths for the purposes of the South East Regional Spatial Strategy 15 or so years ago (see the chapter SANGs: The Thames Basin Case Study, by me and Sarah Bischoff in a 2012 book edited by Greg Jones QC, The Habitats Directive: A Developer’s Obstacle Course?) but the use of which is now widespread.
Natural England wrote a letter on 16 March 2022 to Buckinghamshire Council (Aylesbury Vale and Chiltern Districts), Central Bedfordshire Council, Dacorum Borough Council, St Albans City and District Council, Hertfordshire County Council and National Trust to inform them “of emerging evidence which identifies significant recreational pressure on Chilterns Beechwoods Special Area of Conservation (SAC), more specifically Ashridge Commons and Woods Site of Special Scientific Interest (SSSI) component. This advice applies to all Local Planning Authorities (LPAs) which were identified as partly or wholly with the 12.6km Zone of Influence (ZOI) and contribute to more than 2% of visits to the SAC. This relates to the piece of evidence instructed by Dacorum Borough Council and completed by Footprint Ecology, due to be released on 14th March 2022.”
“The Footprint Ecology report to inform the Habitats Regulations Assessment of Dacorum Borough Council’s Emerging Local considers that 500m represents a reasonable boundary for an inner zone around the SAC where new net increases in development will be very difficult to deliver. They will struggle to pass a HRA. It is proposed that net increases in development within the ZOI but beyond the exclusion zone will need to incorporate mitigation measures to avoid additional recreational impacts – with such measures to be delivered by a Strategic Solution.”
“Due to the early stage which the project is at we do not yet know what the Strategic Solution will look like and we would like to continue working with LPAs and the National Trust to develop a bespoke Strategic Solution to avoid and reduce visits to the SAC and ease recreational pressure. We have no preconceptions about precisely what the mitigation should look like (so long as it satisfies HRA requirements) and we would be happy to listen to any suggestions put on the table.”
Solutions could include, surprise surprise, Strategic Access Management and Monitoring (SAMM) (which commonly turns into a per dwelling section 106 agreement contribution), plus SANGS (although “due to the uniqueness of Chilterns Beechwoods SAC, we recognise that alternative mechanisms may also have to be considered”) and a “new gateway to the Ashridge Estate”.
“In light of the emerging evidence, we recognize that there could be a serious potential conflict between the plans for new major housing provisions in the areas surrounding the Chilterns Beechwoods SAC, and the conservation objectives for the site.
Natural England understand that Strategic Solutions can be a time consuming process, and will lead to a period of time where strategic-level mitigation hasn’t yet been identified. During this period we advise that HRAs will be needed, detailing how each individual site is going to avoid adverse impacts on the integrity of the Chilterns Beechwoods SAC. This is for all planning applications that result in a net increase in dwellings, within the entire 500m – 12.6km ZOI. We are happy to work with the Local Planning Authorities and developers proactively to seek to find solutions during this temporary period.
The interim position is likely to apply until such time that a formal strategic solution is found. We will be looking for all applications to incorporate mitigation measures that will avoid additional recreational impacts.”
The letter describes the particular pressures upon the SAC created by visitor numbers at the Monument, which is the main area within the Ashridge Estate, where people park, there are walks, a café and so on. I have to declare an interest in that I live in Dacorum District and have visited Ashridge on many occasions, parking indeed at the Monument. Yes it can get busy. But to look to solve issues by clamping down on new development and/or extracting financial contributions from new development is in my view inequitable (although predictable – look at the knee jerk reaction to nitrate, phosphate and water issues!). It’s we in the existing population who need to change our habits. But as a first step, why not promote the fact that there is actually a problem, to seek to encourage people to ration their visits? It may be that this should not be your daily or weekly dog walk venue, folks! As far as I’m concerned, the National Trust positively encourages people to walk on and enjoy its land at Ashridge. It provides car parking and refreshment facilities. If that is harming the nature conservation interest of the land, shouldn’t the National Trust as responsible land owner take sufficient steps to manage numbers and dampen demand? And given that it is existing residents who are causing the damage, not future residents, why are impacts not mitigated via council tax rather than entirely loaded onto developers and future residents whose homes are now stuck in the system pending a solution?
In mid Sussex, as far as new development is concerned every additional litre of water is seen as a problem and with situations of recreational pressure every potential additional footstep from a new home – blind to the existing reality, which that any problems are being created by existing residents!
Reforming the system
I think I need to go for a calming walk (don’t worry, I’ll stick to pavements in the future, leaving special parts of the countryside for a privileged few, and perhaps if I can pledge not to visit Ashridge again I can sell that to a developer as a credit?).
So I am not going to go into any detail as to the options floated by DEFRA in its Nature recovery green paper: protected sites and species (16 March 2022) for reform of the regulatory system for protecting sites and species (part of the long-awaited post-Brexit environmental law reform package). That will be for another day.
“We are today launching our consultation on legally binding targets under the Environment Act to leave our environment in a better state than we found it. This includes a world leading target to halt the decline of nature by 2030. This is our compass, spurring action of the scale required to address biodiversity loss. We are also proposing targets for air quality, water, trees, marine protected areas, biodiversity, and waste reduction and resource efficiency.
This goes beyond the legal minimum required under the Act and will support the delivery of many of the government’s priorities, including to reach net zero by 2050, build resilience against the impacts of a changing climate, and level up all corners of the country.
In order to meet these targets, we must move the emphasis away from bureaucratic EU processes that haven’t done enough to moderate the pace of nature’s decline, and instead put in place the governance regime that can deliver nature’s recovery. That’s why we are publishing a green paper today, setting out proposals to create a system which better reflects the latest science, has regard for our domestic species and habitats, and delivers nature recovery.
We have always said we will take a cautious and evidence-led approach to any reform. This green paper is the next step in setting out our ideas and gathering views to inform our approach.”
By way of a taster of the green paper itself:
“… the Government is interested in consolidating the protected sites we have into a simpler legal structure to deliver better environmental outcomes which are based on the best available science and evidence.
This approach could involve having a single legal mechanism for terrestrial designation and a single legal mechanism for marine designation, but within each having the possibility of varying levels of protection which could be site or species specific.
This would enable strict protection of certain habitats or species in a single protected site, as well as more general protection for other features or habitats which might affect the integrity of the site. This would also enable a tailored approach to delivering the recovery of protected sites.”
“…the UK Government wants to fundamentally change the way the assessments under Habitats Regulations work to create clearer expectations of the required evidence base at an early stage, for example, building on the concept of a site improvement plan.
The approach should focus on the threats and pressures both on and off the site that, when addressed, will make the greatest difference to the site and help drive nature recovery whilst enabling truly sustainable development – addressing challenging issues such as nutrient neutrality and marine development.
Assessments will better identify and manage areas of scientific uncertainty. Outcomes for each site will be regularly monitored, and actions taken to address failures in assessment and mitigation. It should then also streamline the process for addressing other impacts, such as by avoiding duplication and excessive burden, whilst ensuring a consistent level of protection.
Finally, the UK Government wants to make sure that there is space for individual evidence-based judgement by an individual case officer on an individual case. The scourge of modern government has been the obsession with uniformity of procedure, which has led to a scenario where the consistency of the process to avoid litigation risk has become elevated above the quality of decision making.”
The consultation period runs until 11 May 2022
There is an HRA review working group comprising DEFRA ministers Lord Benyon and Rebecca Pow, Tony Juniper (Natural England chair) and Christopher Katkowski QC and a summary of its findings to date was published on 16 March 2022 alongside the green paper.
This week’s clubhouse event (6pm, 22 March 2022) will look to bring us up to date on the question of who should pay for the remediation of unsafe buildings, following on from the Secretary of State’s threats to developers and revisions to the Building Safety Bill that I wrote about in a blog post last month. Join here whether to listen or participate.
Relax – this blog post is about on shore wind turbines rather than nuclear fallout.
But there is somewhat of a “dig for victory” feel to our current conversations about energy. If we all just turn down our thermostats by one degree and so on.
Against the urgent need for greater energy security, against the escalating costs of energy and fuel (which make “levelling up” a side show) and of course against the largest and most relentless horseman of the apocalypse, climate change – there is one central question: How can we reduce our energy requirements and maximise the potential of our “home grown” sources of energy?
“We need to intensify our self reliance as a transition with more hydrocarbons, but what we also need to do is go for more nuclear and much more use of renewable energy,” he said. “I’m going to be setting out an energy strategy and energy supply strategy for the country in the days ahead.”
Warning: this blog post only considers England’s, particularly troubled, policy position, rather than the rest of the United Kingdom.
The July 2021 update to the NPPF did not contain any specific changes in relation to planning for climate change. Paragraph 152 (previously paragraph 148) still reads:
“The planning system should support the transition to a low carbon future in a changing climate, taking full account of flood risk and coastal change. It should help to: shape places in ways that contribute to radical reductions in greenhouse gas emissions, minimise vulnerability and improve resilience; encourage the reuse of existing resources, including the conversion of existing buildings; and support renewable and low carbon energy and associated infrastructure.”
When the update was published the Government’s response to consultation stated that 20% of respondents to that draft section of the framework “recognised the importance of climate change and indicated a need for stronger terminology to reflect this, such as specific references to the net zero target and emphasis on renewable energy” and stated that the Government is “committed to meeting its climate change objectives and recognises the concerns expressed across groups that this chapter should explicitly reference the Net Zero emissions target. It is our intention to do a fuller review of the Framework to ensure it contributes to climate change mitigation/adaptation as fully as possible, as set out in the [planning white paper].”
So we expect changes to the NPPF to strengthen planning policies on climate change. Can we expect any change of policy in relation to on-shore wind in particular?
If you recall, following its 2015 election manifesto pledge, the Government significantly toughened its stance in relation to on shore wind. Greg Clark issued this written ministerial statement on 18 June 2015:
“I am today setting out new considerations to be applied to proposed wind energy development so that local people have the final say on wind farm applications, fulfilling the commitment made in the Conservative election manifesto.
Subject to the transitional provision set out below, these considerations will take effect from 18 June and should be taken into account in planning decisions. I am also making a limited number of consequential changes to planning guidance.
When determining planning applications for wind energy development involving one or more wind turbines, local planning authorities should only grant planning permission if:
· the development site is in an area identified as suitable for wind energy development in a Local or Neighbourhood Plan; and
· following consultation, it can be demonstrated that the planning impacts identified by affected local communities have been fully addressed and therefore the proposal has their backing.
In applying these new considerations, suitable areas for wind energy development will need to have been allocated clearly in a Local or Neighbourhood Plan. Maps showing the wind resource as favourable to wind turbines, or similar, will not be sufficient. Whether a proposal has the backing of the affected local community is a planning judgement for the local planning authority.”
The stance flowed through to the NPPF and the relevant paragraph remains – supportive of renewable energy in principle but with a killer footnote in relation to on shore wind:
“158. When determining planning applications for renewable and low carbon development, local planning authorities should:
(a) not require applicants to demonstrate the overall need for renewable or low carbon energy, and recognise that even small-scale projects provide a valuable contribution to cutting greenhouse gas emissions; and
(b) approve the application if its impacts are (or can be made) acceptable 54 . Once suitable areas for renewable and low carbon energy have been identified in plans, local planning authorities should expect subsequent applications for commercial scale projects outside these areas to demonstrate that the proposed location meets the criteria used in identifying suitable areas.”
“(54) Except for applications for the repowering of existing wind turbines, a proposed wind energy development involving one or more turbines should not be considered acceptable unless it is in an area identified as suitable for wind energy development in the development plan; and, following consultation, it can be demonstrated that the planning impacts identified by the affected local community have been fully addressed and the proposal has their backing.”
The Government has of course been consulting on its suite of energy national policy statements, which set the policy basis for the determination of development consent order applications for nationally significant infrastructure projects. The draft national policy statement for Renewable Energy Infrastructure (EN‐3)(September 2021) is not currently relevant to on shore wind, as on shore wind projects were entirely removed from the NSIP system. However, could we see a volte face on that restriction too?
It was interesting last week to read the detailed 9 March 2022 House of Commons briefing paper research paper on large solar farms and the Hansard transcript of the Westminster Hall debate on the subject. As with on shore wind, there are of course conflicting priorities to be weighed up – with on shore wind it is most often issues as to effect on protected landscapes and heritage assets and with solar farms most often the use of productive farm land (after all, food security is possibly as important as energy security). I wonder whether the position in relation to solar farms would be clearer if the NPPF reflected the language of the draft renewable energy infrastructure NPS (which of course only applies to solar farms of 50 MW capacity or above):
“Whilst the development of ground mounted solar arrays is not prohibited on sites of agricultural land classified 1, 2 and 3a, or designated for their natural beauty, or recognised for ecological or archaeological importance, the impacts of such are expected to be considered […]. It is recognised that at this scale, it is likely that applicants’ developments may use some agricultural land, however applicants should explain their choice of site, noting the preference for development to be on brownfield and non-agricultural land.”
But back to the big picture – what direction are the prime minister’s announcements likely to take? This is such a precarious moment for the country’s approach to the climate crisis, with siren calls from the likes of Farage for a “net-zero referendum” and from some, equally opportunistically, even for a reversal of the Government’s ban on fracking.
Simon Ricketts, 12 March 2022
Personal views, et cetera
PS no Clubhouse this week, due to MIPIM for some. We return on the 22 March – subject yet to be announced!
In the 21st century, London has increasingly been a safety deposit box for the wealthy of the world – so many people with incomprehensible amounts of wealth, including (but not exclusively) the so-called Russian “oligarchs” (“one of a small group of powerful people who control a country or an industry”).
Obviously, if you come by your wealth legitimately so be it, but the sums these people apparently own would suggest at best that something is wrong with the very structure of capitalism, and at worst…well draw your own conclusions. And to what extent is this all assisting the evils of the Putin regime – and its equivalents briefly eclipsed in the news cycle?
The UK financial sanctions list (4 March 2022) currently identifies 196 Russian individuals, with the reason for each person being on the list.
“Prior to 10 February 2022, the Regulations allowed the UK Government to ‘designate’ (that is, to impose sanctions on) a person who is or has been involved in ‘destabilising Ukraine or undermining or threatening the territorial integrity, sovereignty or independence of Ukraine’. Individuals and entities that are so ‘designated’ are listed on the UK Consolidated Sanctions List (“the UK Sanctions List”) along with confirmation of the reasons for designation.”
“Asset freeze” sanctions “seek to impose prohibitions or requirements for the purposes of:
1. freezing the funds or economic resources owned, held or controlled by certain individuals and entities;
2. preventing financial services being provided to or for the benefit of certain individuals or entities;
3. preventing funds or economic resources from being made available to or for the benefit of certain entities or individuals; or
4. preventing funds or economic resources from being received from certain individuals or entities.”
“On 10 February 2022, the UK Government expanded its power to designate entities and individuals from a wide variety of sectors as it gave itself the power to designate persons ‘involved in obtaining a benefit from or supporting the Government of Russia’, including:
1. Carrying on business as a Government of Russia affiliated entity
This will include any entity which is owned directly or indirectly by the Russian Government or in which the Government of Russia holds directly or indirectly a minority interest or which has received some form of financial or other material benefit from the Government of Russia.
2. Carrying on business of economic significance or in a sector of strategic significance to the Government of Russia
This includes the Russian, chemicals, construction, defence, electronics, energy, extractives, financial services, information and communications and transport sectors.
3. Owning or controlling directly or indirectly or working as a director or trustee of a Government of Russia affiliated entity or an entity falling within any of the other above categories.”
“On 17 February, the Government announced the immediate closure of the Tier 1 (Investor) visa to new applicants. The visa offered up to five years’ permission to stay in the UK and a route to permanent residence, in return for a minimum £2m investment. A review of all investor visas granted between 2008 and April 2015 was announced in 2018. The Government has said results will be published “in due course”.
Russians are the second most common nationality granted investor visas since 2008, although they accounted for a much smaller proportion of applicants since 2015. Just over 2,500 investor visas have been issued to Russians since 2008 (roughly one fifth of all such visas issued). People granted investment visas before 2015 may have now completed the residence requirement for permanent residence (and possibly British citizenship).”
“Prevent and combat the use of land in the UK for money laundering purposes by increasing the transparency of beneficial ownership information relating to overseas entities that own land in the UK. The Bill therefore creates a register of the beneficial owners of such entities. The register will be held by Companies House and made public.
Reform the UK’s Unexplained Wealth Order (UWO) regime to enable law enforcement to investigate the origin of property and recover the proceeds of crime. The measures in the Bill aim to strengthen the UK’s fight against serious economic crime; to clarify the scope of UWO powers; and to increase and reinforce operational confidence in relation to UWO powers.
Amend financial sanctions legislation, including the monetary penalty legal test and information sharing powers to help deter and prevent breaches of financial sanctions.”
However, is this going far enough? There have been pieces in the media reporting that the French government had “seized” a Russian oligarch’s yacht. There is no detail as to what the precise legal status of that action was – there would need of course to be a solid legal basis for confiscation (presumably without compensation) but it is interesting that Boris Johnson and Michael Gove have been reported to be looking at the potential to bolster the Economic Crime Bill so as to facilitate the confiscation of UK property owned by Russian oligarchs (see for instance Michael Gove calling for UK to seize London homes of Russian oligarchs CityAM 27 February 2022 and Michael Gove considers options for seizing oligarchs’ property The Times 3 March 2022). Is this just tough talk and no action? I know you may not want to hear this but… any legislation, and individual decisions made under it, would need to be tightly framed to be consistent with the European Convention on Human Rights (and in a rule of law based, democratic, society that is surely right):
“Everyone has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” (Article 8).
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” (Article 1 of the First Protocol)
Of course, confiscation without compensation may be properly framed as necessary in the public interest but this will need care.
The London Mayor issued a press statement on 26 February 2022, Mayor demands seizure of property connected to oligarchs, supporting the confiscation of assets but going further in terms of measures to seek to minimise the number of empty homes in the capital (surely these measures are essential to ensure that we can look in the eye those who say that there is no need for additional new homes?) and to penalise foreign buyers more generally (jury out as far as I’m concerned – baby, bathwater etc):
“The Mayor has previously criticised the Government’s failure to deliver on the promise of a register of overseas property ownership and has now set out further measures to charge those who buy property in the UK with no intention of living here and leave them empty while London faces a housing crisis.
As well as the register of overseas ownership, the Mayor is calling for:
• Seizure of property assets held by allies of President Putin
• Raising the amount overseas owners have to pay for leaving their home empty by increasing the council tax ‘empty homes premium’
• Raising capital gains tax on overseas buyers from 28 per cent to 40 per cent
• Increasing the taxes paid by overseas companies investing in property by increasing the Annual Tax on Enveloped Dwellings”
This week’s Clubhouse event will be at a slightly earlier time, at 5pm on Tuesday 8 March. Its theme is “BREAK THE BIAS – women in planning/law”, to mark this year’s International Women’s Day theme. We have various speakers including Meeta Kaur, Nikita Sellers, Caroline Daly, Nicola Gooch and Zenab Hearn. Link here.