More On That Natural England Advice

This is a follow-on from my snappily titled blog post last week New NE Nutrient Neutrality & Recreational Impact Restrictions (+ DEFRA Nature Recovery Green Paper).

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?

And lastly

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.

Simon Ricketts, 26 March 2022

Personal views, et cetera