Neutrality

That word neutrality. 

I’ll turn in a moment to the Court of Appeal’s 15 July 2022 ruling on nutrient neutrality in R (Wyatt) v Fareham Borough Council and Natural England. 

But first, on political neutrality. I can’t say that there is a political party at the moment I could support. Is that neutrality? It’s certainly depressing. 

This week, in an effort not to waste energy when most of us have no voice in the selection process, I haven’t been tweeting about all the rights and wrongs of the prime ministerial candidates. One of my better decisions. However, it is frustrating to see the usual 2022 Tory comfort food being served up on a plate:

“A Labour solution to housing would concrete over the whole country and leave us with socialist homes, that are owned by the state, that we can rent on a temporary basis” (Tom Tugendhat)

Net zero = “well-meaning regulations” clogging up economic growth (Kemi Badenoch)

“low planning zones: new investment zones around key parts of the United Kingdom with much clearer planning rules so people can get on with building straight away to generate those jobs and opportunities.” (Liz Truss) – possibly a reference to the libertarian “Charter Cities” idea that seems to be gaining some traction in right wing conservative circles – Sunak and Mordaunt being other potential adherents. (For more on charter cities see for instance Ann Moody’s 6 June 2022 piece in Yorkshire Bylines, Brexit benefits: From Honduras to Hull, via Hong Kong).

Is any of this food, no doubt comforting for some, good for you? Are we even able to ask such a “woke” question? 

Deregulation is of course an ever-present theme – Back To (Planning For) The Future, or what. Of course it will end badly, with botched plans and broken promises.

Meanwhile, in the real world, the inability of the Government and its agencies to arrive at any timely solutions is still the reason why Natural England’s approach to nutrient, water and recreational impact neutrality is such a blocker to house building in so many areas of the country. Water companies are failing to meet their obligations (see the Environment Agency’s no holds barred 12 July 2022 report Water and sewerage companies in England: environmental performance report 2021), farmers rail against existing restrictions on fertiliser use, off-site mitigation schemes are slow to gain traction and local planning authorities proceed (or rather don’t proceed) in a state of extreme caution. 

I last blogged on the subject in my 26 March 2022 blog post More On That Natural England Advice.  

Since then the HBF has published two Lichfields reports:

• Achieving nutrient neutrality for new housing development: The economic impact of the under-delivery of housing  (31 March 2022)

Lichfields modelled five scenarios which estimate different levels of reduction in housebuilding as a result of the nutrients issue, as follows:

1 A 10% reduction in housebuilding;

2 A 25% reduction in housebuilding;

3 A 50% reduction in housebuilding; and,

4 The non-delivery of an estimated c.53,000-60,000 new homes across the (at that point) seven catchment areas.

By way of example:

“A 10% or 50% reduction in the number houses being delivered across the seven catchment areas would equate to a reduction in between 2,540 and 12,700 new homes being built each year. This would have the potential to result in:

1 An annual reduction of between £441.8 million and £2.2 billion economic output produced by builders, their contractors and suppliers;

2 A reduced opportunity to create or support between 8,100 and 40,560, indirect, and induced jobs per annum;

3 A loss of between £2.9 million and £14.7 million in potential Council Tax revenue per annum;

4 A loss of between £17.0 million and £84.9 million in New Homes Bonus payments each year;

5 A missed opportunity to invest between £12.0 million and £59.8 million in essential infrastructure collected from Section 106 and CIL contributions per annum; and,

6 The loss of affordable housing delivery valued at between £48.8 million and £244.2 million per annum.”

• Achieving nutrient neutrality for new housing development: Demographic analysis of Natural England’s advice (31 May 2022) 

This examines whether Natural England’s assumption in its guidance to date of an average occupancy of each new home by 2.4 people is too high, leading to an over-estimate as to the likely effects arising from new development:

“Multiple strands of analysis all point to the fact that the nutrient calculators that have been applied throughout the seven catchments over-estimate significantly the likely additional population that would result from the development of new housing. This will tend to over-estimate the nutrient load associated with new development and expect levels of mitigation that may not be necessary.

By way of solution, we recommend that the nutrient calculator should be amended to adopt a more sensitive assessment of population change. This should reflect the level of households/dwellings associated with a net zero population growth scenario for which no mitigation would be required. Mitigation associated with the provision of new housing to accommodate population growth should be based on the net average household size figure; this will be lower than average household size to take account of the fact that the resident population in the existing stock will be falling going forward.”

The HBF has also continued to bang the drum for a more sensible approach to reserved matters applications and applications for discharge of pre-commencement conditions – all delayed in affected areas. The HBF’s James Stevens said this recently in a LinkedIn post:

“Based on an HBF survey of members 40% of the 38,365 homes delayed in the 42 local authorities newly affected by this issue (since 16 March 2022) are caught at reserved matters and discharge of conditions stages. It is likely that a comparable number of homes are at the same stages among the 60,000 homes delayed in the 32 local authorities initially affected by this issue (for many since 22 July 2019).”

His post included a link to Charlie Banner QC’s updated opinion dated 6 June 2022, which articulates a legal case for regulation 63 of the Conservation of Habitats Regulations not applying at these stages but I’m not aware of any authorities yet adopting that position. We await the inevitable appeal decisions. 

I referred in my 26 March 2022 blog post to Jay J’s first instance ruling in R (Wyatt) v Fareham Borough Council and Natural England, where a claimant failed to persuade the court that Natural England’s previous 2020 advice on achieving nutrient neutrality in the Solent region was, in the light of the precautionary approach, in fact not stringent enough.

The claimant secured permission to appeal to the Court of Appeal. If the court had overturned that ruling that would have put us in an even more difficult place but the court (Lindblom LJ, Singh LJ and Males LJ) dismissed the appeal on 15 July 2022. A bailii transcript is not available but barrister Conor Fegan (who acted for the claimant, assisting Greg Jones QC) has posted a link to the judgment on LinkedIn and, also on LinkedIn, David Elvin QC (who appeared for Natural England, leading Luke Wilcox – Tim Mould appeared for Fareham) has posted an excellent summary. Because it’s a hot Saturday afternoon I’m not embarking on my own summary – please read David’s!

After quite a gap we have another clubhouse Planning Law Unplanned session arranged for 6 pm on 19 July 2022. We were originally going to look at whether or not it is correct that LURB represents a “power grab” by Government, as postulated by some. But in the light of events, we will extend the remit of the discussion to a neutral (of course) evaluation of what the changes within DLUHC and the prospective change of prime minister are likely to mean more fundamentally for our planning system and any potential reform. The speakers so far include Steve Quartermain CBE and Killian Garvey but I’d love to hear your views. Join here.

Simon Ricketts, 16 July 2022

Personal views, et cetera