Neutrality: Government Clambers Off The Fence

Ahead of a late but welcome announcement by the Government, there was a silly headline in The Times this week: Homes crisis ‘worsened by environmental red tape’ (18 July 2022). Yes, we are back to the topic of my 16 July 2022 blog post: nutrient/water neutrality.

It’s good that this huge issue is attracting media attention – and I’ll come on to the Government announcement in a moment – but it is disappointing to see the usual “red tape” sneer.

The problem isn’t the rules or bureaucracy: we have specific areas designated of particular ecological importance and sensitivity, the integrity of some of which is under threat because of the existing levels of nutrients draining into them, from farming (eg fertilisers, animal waste) and from homes (human waste), and the integrity of others which is under threat due to the consequences of over-abstraction of water. These situations haven’t been adequately dealt with by the water companies or government agencies, meaning that even one more home being built in these catchment areas is considered by Natural England to be unacceptable without adequate mitigation in place (which can be difficult, particularly for smaller schemes). The problem isn’t the housebuilding, it’s the pre-existing precarious state of these areas.

It is a big problem, and it has been with us for a long time now (see my previous blog posts).

The Government has been waking up to the issue. Back in March 2022, DEFRA announced some support for affected local planning authorities, Nutrient pollution: reducing the impact on protected sites  (16 March 2022). But this was little comfort to those stuck in the system.

But this week we saw more wide ranging measures announced by DEFRA and DLUHC. Of course they won’t provide an immediate solution, but they are certainly welcome. 

The package of announcements comprises

These are the main measures announced by the Secretary of State:

  • In order to drive down pollution from all development in the relevant catchments, we will be tabling an amendment to the Levelling Up and Regeneration Bill. This will place a new statutory duty on water and sewerage companies in England to upgrade wastewater treatment works to the highest technically achievable limits by 2030 in nutrient neutrality areas. Water companies will be required to undertake these upgrades in a way that tackles the dominant nutrient(s) causing pollution at a protected site. We are also using feedback from the recent ‘call for evidence’ to water companies to identify where these upgrades could be accelerated and delivered sooner.”
  • Natural England is directed to establish a nutrient mitigation scheme. “Defra and DLUHC will provide funding to pump prime the scheme: this is intended to frontload investment in mitigation projects, including wetland and woodland creation. This will then be recouped through a simple payment mechanism where developers can purchase ‘nutrient credits’ which will discharge the requirements to provide mitigation. Natural England will accredit mitigation delivered through the Nutrient Mitigation Scheme, enabling LPAs to grant planning permission for developments which have secured the necessary nutrient credits…We will announce further details in the autumn when the scheme will launch, and in the meantime, Natural England will be in touch with local authorities and developers.”
  • Longer term, we continue to progress proposals to reform the Habitats Regulations so that impacts on protected sites are tackled up front, focusing on what is best for bringing sites back into favourable status.”
  • We will make clear in planning guidance that judgements on deliverability of sites should take account of strategic mitigation schemes and the accelerated timescale for the Natural England’s mitigation schemes and immediate benefits on mitigation burdens once legislation requiring water treatment upgrades comes into force. DLUHC will revise planning guidance over the summer to reflect that sites affected by nutrient pollution forming part of housing land supply calculations are capable of being considered deliverable for the purposes of housing land supply calculations, subject to relevant evidence to demonstrate deliverability. It will be for decision takers to make judgements about impacts on delivery timescales for individual schemes in line with the National Planning Policy Framework.”

Joanna Averley’s letter goes into more detail as to how the proposed new statutory duty on water companies will help:

The majority of nutrient pollution from residential properties enters waterbodies via treated discharges from wastewater treatment works (WWTW). The performance of WWTW varies based on the limits in environmental permits issued by the Environment Agency, which in turn reflect the environmental requirements of the waterbodies to which the effluent is discharged. The performance of WWTW is therefore the central factor in the level of nutrient pollution associated with existing homes and new development. It is therefore logical that effort on reducing nutrient pollution associated with housing focusses on upgrading WWTW. The statutory obligation for upgrading WWTW, which will be introduced into the LURB, will ensure that WWTW in nutrient neutrality catchments are operating at the highest level of performance, rectifying nutrient pollution at source. This will reduce the pollution from not only new development coming forward, but also from the majority of existing dwellings in affected catchments, representing a significant decrease in overall pollution from housing.

The specific performance levels of the connected WWTW is a major variable when determining the amount of mitigation new development has to secure to achieve nutrient neutrality. Suitable mitigation measures might include constructed wetlands or land use change, which can be land intensive. Under Natural England’s Nutrient Neutrality methodology, the permit limit is used, or where there is no permit limit on nutrient discharges from WWTW, a standard precautionary figure is used (8mg/l for phosphates (P) and 27mg/l for nitrates (N)). The statutory obligation from 2030 will require WWTW to operate at the technically achievable limit (TAL); for phosphates this is 0.25mg/l and nitrates 10mg/l. This action will ameliorate nutrient pollution and significantly reduce the mitigation burden for developments.

The habitat regulations require that mitigation be secured for the lifetime of the development which Natural England consider to be 80-120 years. The obligated upgrades to WWTW required from 2030; will provide clarity from the point of the LURB measures coming into force. For developments this means that the current high level of mitigation will only be required up to the end of 2030. After 2030, the pollution levels via WWTW will be much reduced and so a lower level of mitigation will be required. This reduces the overall mitigation burden on housing developments coming forward in nutrient neutrality catchments.”

This should be welcomed (even if it is so belated and does raise questions as to whether water companies will actually be able to deliver – and at whose cost) but of course there is still the period to 2030 before these new permit limits apply and so it is important that the promised nutrient mitigation scheme is up and running as soon as possible. Housing Today have raised significant concerns on that score in their piece, Government’s nutrient mitigation scheme ‘years away’ (22 July 2022)

Finally, the ministerial statement sets out unambiguously the Government’s position as to whether the Regulations bite on reserved matters applications and applications to discharge pre-commencement conditions: “The Habitats Regulations Assessment provisions apply to any consent, permission, or other authorisation, this may include post-permission approvals; reserved matters or discharges of conditions.” Joanna Averley’s letter promises further planning practice guidance on this issue. 

In the meantime, there is no Planning Law Unplanned clubhouse event this week but I am speaking at a clubhouse event arranged by Iain Thomson of Bellona Advisors for 6pm on Monday 25 July 2022 on the subject of Strategic Rail Freight Interchanges, alongside writer Gareth Dennis and Intermodality’s Nick Gallop – join here. And for a taster of what we may cover, here’s Iain’s recent SRFIs blog post.  

Simon Ricketts, 23 July 2022

Personal views, et cetera 

18 July 2022 tweet

Is the Nature Recovery Green Paper The Answer? (& If So What Was The Question?)

My last two blog posts have been on the huge and urgent challenge arising for the English planning system arising from the advice being given by Natural England in relation to potential effects on special areas of conservation and special protection areas (see my 18 March 2022 blog post New NE Nutrient Neutrality & Recreational Impact Restrictions (+ DEFRA Nature Recovery Green Paper) and my 26 March 2022 blog post More On That Natural England Advice). We also held a clubhouse discussion on 29 March 2022 and you can listen back here.

Undoubtedly, the environmental protection and assessment system that has developed pursuant to European Union Directives and caselaw of the European Court of Justice is ripe for review now that we are no longer in the EU. It is complicated, uncertain and its tests can lead to wide repercussions, as we have seen with the “neutralities” issues the subject of Natural England’s advice. It was no surprise that the Government has been trumpeting for years (literally years) the opportunity to review the system post Brexit.

This was Environment minister George Eustice in his 20 July 2020 speech on environmental recovery:

Later this autumn we will be launching a new consultation on changing our approach to environmental assessment and mitigation in the planning system. If we can front-load ecological considerations in the planning development process, we can protect more of what is precious.

We can set out which habitats and species will always be off-limit, so everyone knows where they stand. And we can add to that list where we want better protection for species that are characteristic of our country and critical to our ecosystems that the EU has sometimes overlooked– things like water voles, red squirrels, adders and pine martens. We want everyone to be able to access an accurate, centralised body of data on species populations so that taking nature into account is the first, speedy step to an application.”

Later this Autumn”, my foot!! Only last month was the Nature Recovery Green Paper finally published, for consultation from 16 March to 11 May 2022. This was finally the opportunity to grasp the nettle.

I have read the paper several times now, together with the summary of findings of the HRA review working group comprising DEFRA ministers Lord Benyon and Rebecca Pow, Tony Juniper (Natural England chair) and Christopher Katkowski QC that was published alongside the green paper. I’m afraid I do not see any nettles grasped but rather far too much about how to assimilate the nomenclature and classification of EU designations (special areas of conservation and special protection areas) into our domestic regime and general aspirations for a system that is simpler and clearer without any ideas as to how to make it, in practice, simpler or more clear. How do we actually address these nutrient neutrality issues for instance and avoid any more applications via Natural England advice of an emergency hand-brake on the operation of the planning system?

I make the point forcefully because there is a risk that we all see this as complicated, long-term, expert-driven and ultimately one for the academics and planoraks, whereas it is vital stuff if we are to achieve a functioning planning system alongside a system of environmental protection and recovery that is fit for purpose (or at least as good as the EU system of which we are no longer part).

My Town Legal colleague Stephanie Bruce-Smith has summarised chapter 3 of the green paper in a piece which I set out at the foot of this post without amendment – and for which I take the responsibility (but not the credit). Chapter 3 is the meat of the proposals and Stephanie’s piece, which I think is great and I hope you do too, will give you a good sense of the Government’s thinking.

We are going to be discussing the green paper in a clubhouse session this week – at a changed time and date so please mark it in your calendars – 5.30 to 6.45 pm on Monday 4 April. Our main speakers will be Victoria Hutton (39 Essex chambers) (who has published this great summary on LinkedIn), Andrew Baker (Baker Consultants) and Stephanie Bruce-Smith (Town Legal). Event details here.

Simon Ricketts, 2 April 2022

Personal views, et cetera

Stephanie’s piece:

Nature recovery green paper: protected sites and species

Introduction

On 16 March 2022 DEFRA published its Nature Recovery green paper. The green paper opens by identifying two main problems. The first is the degradation and/or loss in habitats and species over the last 50 years. This problem is cited as a key reason for a renewed emphasis on nature’s recovery, rather than conservation, which has hitherto been the focus of nature protection regimes. The second problem identified is the complexity of the existing environmental regulatory landscape for protected sites and species. It references the overlapping site designations as a significant issue, noting how over 80% of Sites of Special Scientific Interest (SSSIs) by area are also designated as Special Areas of Conservation (SACs) and Special Protection Areas (SPAs). This overlap is said to be problematic in two main ways:

(i) It distracts from the ability to focus resources strategically or holistically on actions on-site and pressures off site in a way that best delivers for nature, and

(ii) Very few members of the public are likely to know what these terms mean, or why these sites are worth protecting, which is crucial to public engagement with and support for this work.

There is therefore a wish to “simplify and streamline environmental regulation, with a focus on delivering legally binding targets now enshrined in the Environment Act”. The paper also includes two further aims: moving towards a system where scientific judgment has a greater role (“rather than action being led solely by legal process”); and greater flexibility and accountability given to those delivering policy on the ground, to enable a more joined up response to the specific circumstances of particular sites and areas. In summary, the five main aims of the reform are:

1. Renewed emphasis on, and designation for, nature’s recovery;

2. Simplification and streamlining of environmental regulations;

3. Delivery of environmental targets or outcomes;

4. A greater role for scientific judgement; and

5. Increased flexibility and site-specific policy delivery.

The green paper builds on the findings of the Habitats Regulations Assessment Review Working Group and focuses on several “remaining” areas where DEFRA believes change is required to meet the UK’s nature recovery ambition, i.e. areas not covered by the Environment Act 2021, the Fisheries Act 2020, the Agriculture Act 2020, the Sustainable Farming Incentive and the Local Nature Recovery and Landscape Recovery schemes. By far the most detailed chapter is Chapter 3, the proposals for protecting wildlife sites on land and at sea, which is the focus of this note. Chapters 4-6 will be dealt with in a separate note.

Protected sites: a primer

To understand why there is a significant overlap between protected sites, as correctly identified in the Green Paper, and why this might be problematic, it is useful to consider the various nature conservation regimes in place in the UK, their scope and their purpose.  This section will therefore provide a brief overview of the patchwork of regimes that govern this area.

Sites of Special Scientific Interest (“SSSIs”) as their name suggests, have roots in the post-war idea that nature had a “scientific” value. Under section 28 of the Wildlife and Conservation Act 1981, Natural England may designate (notify) a site as being of special interest by reason of any of its flora, fauna, geological or physiographical features. A notification by Natural England specifies the features by reason of which the land is of special interest and any operations Natural England believe are likely to damage those features.

The practical implications of a SSSI notification are that if an owner or occupier wishes to carry out an operation considered likely to damage the features, prior consent is required from Natural England, unless the operation is carried out in accordance with a management agreement or management scheme.

Special Areas of Conservation (“SACs”) and Special Protection Areas (“SPAs”) are designations deriving from two EU Directives: the Habitats Directive and the Birds Directive. The designation of sites under the two directives differs. The basis of designation of a SPA is scientific: it must be ornithological criteria alone set out in the Birds Directive (e.g. 1% of the population of listed vulnerable species). By contrast, for SACs, Member States must make a selection of proposed areas according to scientific criteria listed in Annex III of the Habitats Directive, to ensure that specific habitat types and habitats of certain protected species are maintained. Based on these proposals, scientific seminars are convened for each biogeographical region and a list of Sites of Community Importance (SCIs) are ultimately adopted. Member States must designate those areas of Special Areas of Conservation (SACs) within six years.

The main implication of such a designation it requires an assessment (known in the UK as a Habitats Regulations Assessment or “HRA”) to take place before any potentially damaging activity can take place. If the HRA concludes that the impact is likely to adversely affect the integrity of the site, the only way in which development may occur on such a site is where there are imperative reasons of overriding public interest (IROPI). Where these are present, the competent authority will also decide what potential compensatory measures are needed to maintain the overall coherence of the site.

The question of whether such an impact requires a HRA and whether it meets the test, is a question for the decision-maker. As set out in the green paper, the HRA process “aims to inform decision-making regarding the protection of conservation areas of international importance from any harm that may arise from activities or development” – it is not intended to be prescriptive about what can or cannot be built, or deliver any set conservation outcomes.

Pausing there, it is possible to see why there is frequently (if not nearly always) an overlap between SSSIs, SACs and SPAs. It is likely that a site of special interest for reason of its fauna (and thus designated a SSSI), would also be a European protected site for the habitat it provides for such fauna (requiring a SAC designation) – and potentially even fall under a migration path for certain birds and protected for that reason too (SPA). However, not only do these regimes protect different things (site of special interest, habitats, birds) but also SSSIs and the EU regimes offer different forms of protection. For SSSIs, Natural England must grant prior consent for any specified operation whereas for SACs, and SPAs, any “plan or project” may trigger the need to carry out a HRA.

Marine Conservation Zones (“MCZs”) and a network of marine conservation sites were created under the Marine and Coastal Access Act 2009. Ramsar sites are wetlands of international importance, designated under the Convention on Wetlands of International Importance (Ramsar convention), of which the UK is a signatory.

Given its breadth, SACs, SPAs and Ramsar sites can easily be designated SSSIs and indeed almost all (if not all)  land-based SACs and SPAs are also SSSIs. In contrast to National Nature Reserves (NNRs), SSSIs are often on private land.

Protecting wildlife sites – on land and at sea

There are two main limbs to the Government’s proposals for reform in this area: (a) consolidation and (b) promotion of scientific judgment.

A. Consolidation

The section opens with the statement that “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”. It highlights in particular the “disconnect between the historical purposes for which different types of sites were designated and our ambition to halt biodiversity loss by 2030 and protect 30% of our land and seas”. Accordingly, “a more ecologically coherent but less complex network of sites with a clear purpose could offer multiple benefits and ensure the network better addresses both nature recovery and climate change”.

These statements raise a number of questions which remain unanswered throughout the paper. Is case that the existing network of sites are not “ecologically coherent” or fail to be based on science? And whilst it may be the case that the historical purpose of SSSIs is not solely concerned with biodiversity or habitats (as we see above, it is much wider), it is difficult to see how designations such as SACs, MCZs and Ramsar sites are concerned with anything other than biodiversity loss. And as for the goal of protecting 30% of land and seas, one might legitimately ask why the goal of increasing the amount of land protected in the UK requires overhauling and redefining protected sites – unless, of course, this might make the goal easier to achieve by making it easier to categorise sites as “protected”.

Turning to the proposals, these fall under three main types (although the green paper splits them into five headings): (1) protected sites reform/consolidation (2) reform/consolidation of the designation procedure for such sites and (3) introduction of new nature recovery sites.

(1) Protected sites reform

The paper identifies three options for reform of terrestrial sites, all with the aim of better enabling “nature’s recovery through a less prescriptive system which allows the right actions to be taken in the right places” (unfortunately, the paper does not elaborate on the precise ways in which it believes the current system to be over-prescriptive, or what the “right actions” are that need to be taken are but cannot currently be taken in the existing system).

Option 1 is a tiered approach, which proposes to replace the existing regimes with ‘highly protected’ sites (applying only to a limited number of sites of the highest international importance) and ‘protected’ sites (managed for national or international biodiversity or geodiversity importance as SSSIs, SACs and SPAs are currently). ‘Highly protected’ sites would provide stronger protection than currently applied to existing SACs and SPAs and would largely focus on protection and recovery of terrestrial ecosystems (e.g. nature reserves). The paper notes that for ‘protected’ sites, as at present, economic and other activities would need to be sustainable in relation to the conservation objectives of those sites.

Option 2 would focus on “streamlining and merging existing site designations that operate similarly (SACs, SPAs, and SSSIs)”. An example provided is to “rename” the site designations as ‘highly protected’ and ‘protected’. It suggests that the areas of existing sites network which are of international biodiversity and geodiversity importance could be designated ‘highly protected’; and that ‘protected’ could apply to the remaining areas of the sites network, which could be managed and protected in a similar way to SSSIs.

The distinction between this proposal and option 1 appears to be that option 1 would strengthen the protection for a limited number of sites, whereas option 2 appears to be just a renaming exercise. However, for option 2, it is unclear where the distinction between ‘highly protected’ and ‘protected’ will apply, since it appears to suggest that the ‘highly protected’ designation will be give to areas of the existing site network which are of ‘international and biodiversity and geodiversity importance’. Logically, this would mean all Natura 2000 sites, i.e. all SACs and SPAs – and therefore nearly all SSSIs too.

Option 3 consists of consolidating existing sites into one single type of protected site designation, which could “reflect the existing sorts of protections whilst offering an opportunity to convey the value and benefits of these sites more easily to people”. The paper notes that existing rules already identify and offer additional protection to certain priority habitats and species, where a significant portion of their natural range falls in the UK – giving blanket bogs as one such example. It also suggests exploring scalable levels of protection within one type of designation, which it suggests could (i) help support recovery through higher protection levels where needed (ii) offer scope to adapt sites more easily to climate change or (iii) enhance protections to areas of particularly significant nature value.

By contrast, for marine sites, the paper notes that despite the multiple designation types, the MPA network is “ecologically coherent”. But, given that the range of marine designation types can cause confusion, there may be benefits to consolidating designations, which could mean a single designation type (such as Option 3) or formalising the current policy approach of MPAs and HPMAs into two designation types (i.e. an approach similar to Option 1).

(2) Reform/consolidation of the designation procedure

As set out above, notification (designation) of SSSIs is the responsibility of Natural England. By contrast, final decisions for other statutory designations (such as SACs and SPAs) rests with the Secretary of State.

The paper references the risks and opportunities from climate change impacting protected sites, noting that it is likely to become increasingly difficult to accommodate this impact unless designation and management processes are adapted. To solve this issue, it proposes to have “one consistent decision-making process as part of a rationalised site protection system” with one option being for it to rest with the Secretary of State, informed by the scientific advice of its statutory advisors “in a similar way to how SACs and SPAs are currently designated”.

In short, it proposes removing Natural England’s power to designate sites, and giving this to the Secretary of State, on the basis that having two designation processes means that the risks from climate change cannot be adequately addressed. It is not entirely clear how this follows, nor is it made clear, if there has to be one designation procedure, why the Secretary of State would be better placed to do this than Natural England. For those fearing that the Secretary of State, as opposed to Natural England, might be swayed by other concerns that nature protection, the paper seems to seek to allay such fear by emphasising that at any new decision-making process will “be consistent with our existing international commitments and be fully transparent with regard to the decisions taken”.

(3) Introduction of new nature recovery sites

The final area of ‘consolidation’ relates to nature recovery sites. The paper notes that designation of protected sites has not been successful in helping sites recover to a more favourable condition and avoiding further decline. To that end, it notes the new initiatives being brought forward (Nature Recovery Network, Biodiversity Net Gain, the Nature for Climate Fund and new contracts under Conservation Covenants) but also notes how it is considering whether a new sort of designation for nature’s recovery should be explored. To that end, it seeks views on several areas including:

– Identification (strategies to identify potential ‘Nature Recovery’ sites for formal consideration, such as those set out in the government’s vision for Local Nature Recovery Strategies)

– Safeguards (how the planning system can play a role in promoting environmental recovery and long-term sustainability)

– Management (suggesting less prescriptive management measures and a holistic approach)

– 30 by 30 (whether such sites should ‘count’ towards the 30 by 30 goal)

– At sea (creative thinking about opportunities for co-location and space sharing to maximise benefits for sea users while also protecting the marine environment).

The paper also references the recent ‘rewilding’ approaches that have been developed on land, noting how, due to failing to meet established selection criteria for designation (despite their benefits for biodiversity), they are frequently not recognised for the value they can bring in making space for nature. On the other hand, it notes the concern that designation of such sites could lead to management in ways that limit or inhibit the opportunity for other species and habitats to flourish. It therefore suggests providing flexibility as to what areas could be designated and also in the requirements following such a designation.

B. Scientific Judgment in site management and protection

This second part of Chapter 3 paints a pretty dismal picture of the Habitats Directive in operation – its “interpretation has often led to high levels of legal uncertainty which can be corrosive to good governance”; “process has become king and crowded out scientific judgment on individual cases”, and whether or not a certain activity should be altered or restricted is “guided as much by concerns about possible future legal challenge over decision making, as it is by the actual impact of the activity”. Another problem identified is that “the current process lacks the tools necessary to incentivise change on the main pressures and threats affecting a site, some of which are not subject to [Habitats Regulations Assessment]

Strong criticism indeed, and it is worth noting that the HRA Review Working Group summary of findings (found here) presents a slightly less pessimistic picture. The experts highlighted the need for greater certainty and clarity throughout the HRA process, with key points being:

– Clarification of legal terminology and processes

– A need to make existing data readily available and user friendly

– Specific site advice accessible in one place

– Basing scientific judgements on a clearer framework of evidence (screening and assessment)

– Earlier consideration of avoidance or mitigation measures

– Earlier expert engagement to increase Local Planning Authority confidence in scientific evidence

They also suggested further exploration into:

– Use of strategic mitigation solutions to secure better outcomes from the assessment process

– A more strategic approach to “environmental compensation” to support nature recovery.

On the litigation risk, again the conclusion of the working group was more muted: “whilst it is a straightforward process in some respects, the amount and type of specialist evidence required coupled with the perceived risk of legal action, creates an elevated level of caution around decision-making.”

The Green Paper notes that the UK government wants to “fundamentally change” the way assessments under the Habitats Regulations work to create clearer expectations of the required evidence base at an early stage and with a focus on addressing the threats and pressures on and off site that will make the greatest difference to the site. In addition, there is a desire to “make sure there is space of individual evidence-based judgement by an individual case officer on an individual case”.

The paper identifies seven main areas for reform.

(1) Assessment and consent

In this section, the work of the HRA working group is referenced, namely their proposal for a single reformed assessment process which complements proposals for simplified site designations, and their suggestions for clarity, certainty and a strategic approach to mitigation.

It is suggested that the single assessment would remove some of the complexities from having a number of assessment regimes on SSSIs and provide greater certainty and consistency for users. The paper goes on to say that this single assessment would be supported by “a clearer decision-making framework aimed at addressing process and data issues, including the earlier consideration of alternative ways to implement a plan or project and mitigation measures and creating more reasonable and clearer expectations of the required evidence base.” However, there is no further detail at this stage as to what this framework would look like and how it would achieve those aims.

(2) Addressing the legacy impact of dormant SSSI consents

This second heading notes the problem that many SSSIs issued in the past which permit certain activities, might, if exercised, cause damage or deterioration to protected sites. It notes that currently Natural England has only limited powers to change such consents and that these can only be modified or revoked on a case-by-case basis and that such revocation may require compensation. However, no solution is proposed to address this issue – just that it needs to be addressed. It is interesting to note, however, that in previous sections the concern has been on the need for ‘site-specific’ and ‘case-by-case’ decision-making, whereas in the case of revocation, this is seen as part of the problem.

(3) Management of protected sites

Instead of the current focus on stopping the deterioration of protected sites, the Green paper underlines the need for a “future protection process which can also support the management of the site and nature recovery”. This again represents the shift identified at the start of the paper – away from conservation or maintaining the status quo, to focusing on improvement or recovery.

The paper suggests a greater role for Site Improvement Plans (‘SIPs’) as one option which would allow problems to be approached more strategically and in a more tailored way. SIPs currently exist as a tool for identifying actions that need to be taken by public, private and voluntary bodies on protected sites to address existing pressures and threats impacting their conservation status. The green paper suggests “making the concept [of SIPs] statutory”, as a means to increase their uptake as a basis for action.

(4) The Habitats Regulations: Power to amend the general duties

A further issue identified by the paper is that the requirements of the Habits Directive and the Wild Birds Directives (with regard to which public authorities are required to exercise their nature conservation functions) are not explicitly set out. The paper identifies this issue as providing scope for differing interpretations and disagreement, and emphasises the “new” power within the Environment Act to amend the ‘general duty’ under Regulation 9 to delivery domestic and international biodiversity duty.

(5) Management at sea

As for management at sea, the key area for exploration is whether existing processes in other legislation applying to the UK can delivery improved outcomes for MPAs and better support the objective or protecting important marine habits and species, as opposed to the current requirement for a HRA under Part 6 of the Habitats Regulations (which applies out to 12 nm).

(6) Environmental Impact Assessment

Tucked away on page 19 of the green paper, this section is of particular interest as it notes that the Government is “committed” to reform of both the SEA and EIA process “to better support nature recovery”. One reason why this is particularly noteworthy is that both regimes are currently very broad, looking and impacts on “the environment” rather than just nature or habitats – so it will be interesting to see whether the reform proposes to narrow it or merely refined it in certain respects in the area of nature recovery.

It notes that the reforms “will ensure environmental protections are more relevant; and more closely monitored and enforceable with a stronger focus on delivering the outcomes we need” – in short, the revised EIA seems like it will no longer be about assessment for the purposes of informed decision-making but may set down targets or rules to deliver outcomes. An interesting approach in a paper determined to be less “prescriptive”. The paper does not state when the proposals will be brought forward.

(7) Establishing priority areas for woodland creation

The final subheading looks at afforestation projects, noting that the existing requirement for a determination under the forestry EIA regulations can be resource and time intensive. The paper proposes that the Forestry Commission undertake an Afforestation Strategic Assessment, described as a “landscape scale scoping project” assessing the relevant features likely to be affected by afforestation, with the aim of establishing preferred low risk areas for afforestation. Afforestation projects within those areas would then not require an individual EIA or equivalent impact assessment (except in “exceptional circumstances”). The aim is to “kick-start” afforestation projects and encourage locating new woodland in areas of the least risk to surrounding habitats

New NE Nutrient Neutrality & Recreational Impact Restrictions (+ DEFRA Nature Recovery Green Paper)

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.

Nutrient neutrality

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:

I last covered nutrient neutrality issues in my 9 October 2021 blog post Development Embargos: Nitrate, Phosphate & Now Water.

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.

Environment minister George Eustice had this to say on this issue in his 16 March 2022 written statement to the House of Commons:

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.”

DEFRA has also published a policy paper: Nutrient pollution: reducing the impact on protected sites.

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.

George Eustice introduced it as follows in his written statement on 16 March 2022:

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.

Simon Ricketts, 18 March 2022

Personal views, et cetera

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.

On Reshuffle Day, In Another Part Of The Forest

If a tree falls in a forest and no one is around to hear it, does it make a sound?

Maybe the biggest news this week wasn’t the replacement of Robert Jenrick by Michael Gove as Secretary of State for Housing, Communities and Local Government and the consequent likely pause of the still-paused-anyway planning law reforms.

Maybe it was the difficulties which the Government is having with its Environment Bill (original progenitor one M Gove). Aspirations of enactment by the time of November’s COP26 are surely fading fast in the light of a series of defeats for the Government at the report stage of the Bill in the House of Lords. On Monday (13 September 2021) it was already being reported in a Green Alliance blog post, on the back of a Daily Telegraph story, that the Government was reluctant to accept the amendments which had been passed which could ultimately lead to the Bill entering into a period of ping pong (less fun than it sounds) between the Lords and Commons.

The amendments at that stage were reported in this piece: Environment Bill: The 10 government defeats in the Lords (ENDS Report, 14 September 2021). They include:

– making interim targets for nature, air, water and waste legally binding;

– requiring the Government to make a formal declaration of a biodiversity and climate emergency;

– a more ambitious approach to targets in air pollution;

– making soil health a priority;

– removing exemptions for the Treasury and Ministry of Defence from taking into account environmental principles in policy making.

However, on the day of the reshuffle, 15 September 2021 the Lords continued its scrutiny of the Bill and inflicted a further four defeats by way of voting for amendments which in various ways seek to introduce greater environmental protections. Two of the issues are intertwined with matters to do with planning and development and I thought I would give them a bit of airtime – after all, these days can you be a planning lawyer without being an environmental lawyer? And surely DEFRA and MHCLG are going to have to work with each other in ever closer ways.

Habitats Regulations: limits on powers to amend

Baroness Young, chair of the Woodland Trust and former chief executive of the Environment Agency, moved an amendment to ensure “that powers to amend the Habitats Regulations may only be used for the purposes of environmental improvement following consultation. It ensures that the level of environmental protection that must be maintained includes protection for important habitats, sites and species as well as overall environmental protection

It was passed 201 to 186.

The amendment provides that the Secretary of State may only amend the regulations

for the purposes of—

(a) securing compliance with an international environmental obligation, or

(b) contributing to the favourable conservation status of species or habitats or the favourable condition of protected sites;

(c) if the regulations do not reduce the level of protection provided by the Habitats Regulations, including protection for protected species, habitats or sites; and

(i) following public consultation and consultation with—

(ii) the Office for Environmental Protection,

(iii) Natural England,

(iv) the Joint Nature Conservation Committee, and

(v) other relevant expert bodies.”

Duty to implement an enhanced protection standard for ancient woodland in England

Baroness Young moved an amendment “intended to address the more than 800 ancient woodlands in England that are currently threatened by development. As a large number of these threats result from indirect effects of development next to ancient woodland, these changes will improve the weight afforded to protecting these irreplaceable habitats in planning policy.”

It was passed 193 to 189.

The amendment introduces the following additional clause into the Bill:

(1) The Government must implement an enhanced protection standard for ancient woodland, hereafter referred to as the “ancient woodland standard” in England as set out in subsections (2), (3) and (4) and this must have immediate effect.

(2) The ancient woodland standard must set out the steps necessary to prevent further loss of ancient woodland in England.

(3) The ancient woodland standard commits the Government to adopting a Standard of protection which must be a requirement for all companies, persons or organisations involved in developments affecting ancient woodlands in England.

(4) This standard must be that—

(a) any development that causes direct loss to ancient woodland or ancient woodland and ancient and veteran trees must be refused unless there are wholly exceptional reasons and, in addition, a suitable compensation strategy must be in place prior to development commencing,

(b) any development adjacent to ancient woodland must incorporate a minimum 50-metre buffer to provide protection, reduce indirect damage and provide space for natural regeneration,

(c) any ancient or veteran trees must be retained within a development site, including a root protection area and appropriate buffer zone.

(5) This buffer zone must be whichever is greater of—

(a) an area which is a radius of 15 times the diameter of the tree with no cap, or

(b) 5 metres beyond the crown.”

The debate is here and Parliament’s summary of the House of Lords report stage is here.

(Incidentally, Ruth Keating (39 Essex Chambers) gave a very clear summary of the Environment Bill at today’s (virtual) Joint Planning Law Conference. Watch out for the paper in due course.)

As a further indication of how environmental matters are going to take centre stage in coming months, Duncan Field brought to my attention yesterday that Lord Frost made a statement to the House of Lords (16 September 2021) as to the Government’s approach in relation to various areas of retained EU law. A supporting paper, Brexit opportunities: regulatory reforms contains references which may be of interest to those in the planning and environmental areas:

Environmental Licencing [sic] and Permitting – Defra is continuing to rationalise the existing Environmental licensing and permitting (ELP) regimes so they are more streamlined and easier for businesses and users to navigate, whilst maintaining and even enhancing environmental protections.

Promote a flexible, market-based trading system for biodiversity offset credits – Biodiversity Net Gain (BNG) is a critical part of Defra’s strategy for enhancing the natural environment and promoting sustainable growth. Defra will shortly be publishing a consultation on our plans for implementing BNG. This consultation will include proposals for a market-based approach to delivery of biodiversity offset units.

That latter is interesting in the context of the biodiversity net gain provisions within the Environment Bill, which do not currently refer explicitly to any notion of a structured “market-based trading system for biodiversity offset credits”.

Keep your ears open is all I’m saying…

Simon Ricketts, 17 September 2021

Personal views, et cetera

And on the theme of ears, do join our clubhouse Planning Law Unplanned event at 6pm this Tuesday 21 September 2021, whether to listen or participate. We will be returning to the big news story and associated question – “ALL SYSTEMS GOVE! What to expect from our new Secretary of State?”. We have a planoply of leading commentators lined up to give their views including Catriona Riddell, Matthew Spry, Zack Simons, Wyn Evans and Nick Cuff as well as our usual planel. Link to app here.

Photograph by Michael Aleo courtesy of unsplash

Thanks to my colleague Stephanie Bruce-Smith for some background research. All errors mine.

Don’t Print The Environment Bill

Two reasons not to press print:

It’s long. The Environment Bill, which had its First Reading on 15 October 2019, comprises 232 pages. It has 130 sections and 20 schedules. If you want a quicker read, the Explanatory Notes are only 212 pages.

Its shelf life may be short. Of course, we are likely to see a General Election before the Bill has made much progress (although there has been rumour that it may proceed quickly to Second Reading this month) and it will at that point fall unless a motion is passed to carry it over to the next Parliamentary session.

However, there is much within it of interest, and much of direct relevance to the operation of the planning system. I’m sure I’ll come back to various elements in different blog posts. The purpose of this post is to flag the main parts to be aware of from a planning lawyer’s perspective and first to look in particular at the improvements (yes improvements) that have been made to the first part, which sets out the new, post-Brexit regime that would apply to environmental principles and governance.

I am focusing on the relevance of the Bill to English planning law. For a detailed explanation of the territorial extent of each of its provisions, see Annex A of the Explanatory Notes, and the detailed table contained in Annex A.

NB There is no additional protection for the natural environment that could not have been secured with us still in the EU, and there are obvious risks of replacing protections in international obligations with protections in domestic legislation that (even if it is enacted in this form and brought into law) is vulnerable to political short-termism, but I set that issue to one side for the purposes of this summary.

Environmental Governance (Part 1 of the Bill)

This covers the ground previously mapped out in the December 2018 draft Environment (Principles and Governance) Bill which I covered in my 22 December 2018 blog post The Office For Environmental Protection, although the ground has moved substantially.

Some of the changes, and the reasoning for them, are summarised in the Government’s Response (published alongside the Bill on 15 October 2019) to the House of Commons Environment, Food and Rural Affairs Committee’s Pre-legislative scrutiny of the Draft Environment (Principles and Governance) Bill (30 April 2019).

Having flicked through Part 1 and compared it to the December 2018 draft, I would note the following:

Clause 1 to 6 are entirely new, enabling the Secretary of State to set long-term (at least 15 year) “environmental targets” in respect of any matter which relates to (a) the natural environment or (b) people’s enjoyment of the natural environment. At least one target must be set in each of the following priority areas: air quality; water; biodiversity, and resource efficiency and waste reduction. A target in relation to particulate matter in ambient air must also be set. The Secretary of State must take independent advice before setting targets, must be satisfied that the target can be met and there are restrictions on his ability to lower the target. Draft statutory instruments containing the targets must be laid before Parliament by 31 October 2022. There are provisions in relation to reporting and regular reviews of the targets.

Interim targets must be set out in the environmental improvement plans which the Secretary of State must prepare pursuant to clauses 7 to 14 (which largely reflect the draft).

As per the draft, the Secretary of State must prepare a policy statement on environmental principles, which he must be satisfied will contribute to the improvement of environmental protection and sustainable development. The list of “environmental principles” is reduced to the following:

(a) the principle that environmental protection should be integrated into

the making of policies

(b) the principle of preventative action to avert environmental damage

(c) the precautionary principle, so far as relating to the environment

(d) the principle that environmental damage should as a priority be rectified at source, and

(e) the polluter pays principle.

The following were in the draft but no longer appear:

⁃ the principle of sustainable development

⁃ the principle of public access to environmental information

⁃ the principle of public participation in environmental decision-making, and

⁃ the principle of access to justice in relation to environmental matters

I get why the principle of sustainable development has been removed from the list and made an overarching requirement (and I support that as otherwise we would have risked detailed principles set out in a policy statement that may have conflicted with the NPPF, although I wonder how the overarching requirement will be interpreted without further explanation), but why the removal of those Aarhus Convention principles?

Government ministers were to be required to “have regard” to the policy statement. As explained in the Government’s Response, this has been beefed up to “have due regard”. I hadn’t appreciated that this was a higher legal threshold but will bow to others. There is still surely a question as to whether this is strong enough.

The principal objective of the Office for Environmental Protection and exercise of its functions is now set out, as “to contribute to –

(a) the protection of the natural environment, and

(b) the improvement of the natural environment”.

One of my concerns as to the potential scope of the OEP’s operations was that it might get drawn into individual planning disputes. The Government addresses this in its Response:

We agree, however, with the core of the Committee’s comments around avoiding the OEP becoming inundated with complaints relating to local matters. This is not our intention. Clause 20(7) in the Bill introduced today (formerly clause 12(4)) already directs the OEP to prioritise cases with national implications. We believe this already guards to a significant extent against the Committee’s concerns regarding the OEP having to take on too many complaints relating to local matters or being at too much risk of challenge over its own judgements. However, we have considered this matter further, and have now amended the Bill to provide that the OEP’s enforcement policy must set out how it intends to determine whether a failure to comply with environmental law is serious for the purpose of subsequent clauses (clauses 20(6)(a) and (b) in the Bill introduced today). This should provide greater transparency in relation to the OEP’s approach to the meaning of the term “serious”, and guard against this further.”

My main concern as to the previously proposed procedures was that it was envisaged that the OEP might bring judicial review proceedings in the High Court, a year or more after the decision under challenge, and secure the quashing of the decision, as one of the remedies available. Plainly, this would have introduced unwelcome and unworkable uncertainty into the development process.

I have been impressed at the openness of DEFRA and MHCLG civil servants during this process. Indeed we at Town held last year a breakfast event and, after sharing the concerns of many around the table on precisely this issue, I suggested that “statement of non-conformity” outcome might be more workable, drawing upon the approach in the Human Rights Act 1998.

To my pleasant surprise, the proposed judicial review mechanism has been replaced with provision for an “environmental review” to be brought in the Upper Tribunal.

(5) On an environmental review the Upper Tribunal must determine whether the authority has failed to comply with environmental law, applying the principles applicable on an application for judicial review.

(6) If the Upper Tribunal finds that the authority has failed to comply with environmental law, it must make a statement to that effect (a “statement of non-compliance”).

(7) A statement of non-compliance does not affect the validity of the conduct in respect of which it is given.

(8) Where the Upper Tribunal makes a statement of non-compliance it may grant

any remedy that could be granted by the court on a judicial review other than damages, but only if satisfied that granting the remedy would not—

(a) be likely to cause substantial hardship to, or substantially prejudice the rights of, any person other than the authority, or

(b) be detrimental to good administration.”

The Government’s Response said this:

The approach will have a number of benefits compared to that of a traditional judicial review in the High Court. In particular, taking cases to the Upper Tribunal is expected to facilitate greater use of specialist environmental expertise.”

Judicial review will still be available if the OEP considers that a public authority’s conduct “constitutes a serious failure to comply with environmental law”.

There are now fewer exclusions to what falls within the ambit of “environmental matters” for the purposes of Part 1. Unlike the draft, the Bill does not exclude matters relating to:

⁃ the emission of greenhouse gases within the meaning of the Climate Change Act 2008

⁃ taxation, spending or the allocation of resources within government.

Thumbnail sketch of the rest of the Bill

Part 3 covers waste and resource efficiency, including:

⁃ producer responsibility obligations

⁃ deposit schemes and charges for single use plastic items

⁃ managing waste

⁃ waste enforcement

Part 4 covers air quality and the environmental recall of motor vehicles.

Part 5 covers water, including powers to direct water undertakers to prepare joint proposals for the purpose of improving the management and development of water resources.

Part 6 covers nature and biodiversity, including:

⁃ biodiversity

⁃ local nature recovery strategies

⁃ tree felling and planting (including requirements for local highway authorities in England to consult before felling trees).

The biodiversity net gain provisions introduced by clause 88 are particularly important. My 30 March 2019 blog post Biodiversity Net Gain: A Ladybird Guide summarised DEFRA’s proposals at the time. Clause 88 states:

Schedule 15 makes provision for biodiversity gain to be a condition of planning permission in England”.

Schedule 15 sets out that every planning permission shall be deemed to have been granted subject to a condition that the developer has submitted a biodiversity gain plan to the planning authority and the authority has approved it. The plan must demonstrate that the biodiversity value attributable to the development exceeds the pre-development biodiversity value of the onsite habitat by at least 10%. Certain types of development are excluded, including our old friend: development deemed to be permitted by virtue of a development order.

More anon.

Part 7 covers conservation covenants.

These provisions will also be important for users of the planning system. The provisions follow DEFRA’s February 2019 consultation paper and seek to provide a legal mechanism for landowners to give binding conservation covenants.

As described in the consultation paper, “a conservation covenant is a private, voluntary agreement between a landowner and a “responsible” body, such as a conservation charity, government body or a local authority. It delivers lasting conservation benefit for the public good. A covenant sets out obligations in respect of the land which will be legally binding not only on the landowner but on subsequent owners of the land.

Again, more anon.

Concluding remarks

So sorry to have kept you from the rugby, Brexcitements or other more healthy Saturday activities – perhaps even enjoying the natural environment.

Admission: I did press print.

Simon Ricketts, 19 October 2019

Personal views, et cetera

Biodiversity Net Gain: A Ladybird Guide

Whoops I did it again: agreed to give a talk on a subject before researching it. These are no more than my notes but I hope the links at least are useful.

The Chancellor announced in his Spring Statement that “following consultation, the government will use the forthcoming Environment Bill to mandate biodiversity net gain for development in England, ensuring that the delivery of much-needed infrastructure and housing is not at the expense of vital biodiversity.”

A DEFRA blog post was published the same day, quoting Michael Gove:

Mandating biodiversity net gain will ensure wildlife thrives at the same time as addressing the need to build new homes. Whether it’s through planting more trees or creating green corridors, developers will now be required to place the environment at the heart of new developments.

This new approach will not only improve habitats for wildlife and create healthier places to live and work, but is central in our ambition to leave the environment in a better state for future generations.

This is what we have committed to do in any event so as to comply with our obligations under the UN Convention on Biological Diversity which we ratified in 1994. In order to seek to meet the Aichi 2015 – 2020 biodiversity targets the UK has committed as one of its “priority actions“, that it will, “through reforms of the planning system, take a strategic approach to planning for nature within and across local areas. This approach will guide development to the best locations, encourage greener design and enable development to enhance natural networks. We will retain the protection and improvement of the natural environment as core objectives of the planning system.”

The UK’s Joint Committee for Nature Conservation reported on progress in its 6th National Report to the Convention on Biological Diversity (January 2019), submitted to the Convention’s Secretariat on 11 March 2019.

The principle of requiring biodiversity net gain is supported not just by environmental groups but by development industry bodies – see for instance UK Green Building Council open letter dated 1 March 2019 to the Chancellor:

We […] look to the Government to establish the long-term legal framework needed to fulfil its pledge to “leave the environment in a better state than we found it” – and the proposed Environment Bill is the opportunity to do so. The Bill can provide the foundation for a shift from an economy in which business aims to limit its impact on the environment towards an economy that is restorative and regenerative by design.

We are calling on the Government to use the Bill to set legally binding targets for the achievement of environmental objectives – including tackling biodiversity loss, improving water and air quality and cutting down resource use and waste. By setting binding targets, the Government can give the construction and property sector the confidence and certainty we need to help drive nature’s recovery, and set a level playing field that enables businesses who do the right thing to be rewarded.”

The letter was signed by representatives of the following organisations (a pretty good list!):

Argent (Property Development) Services LLP

Atelier Ten

BAM Construct UK

BAM Nuttall Ltd

Barratt Developments Plc

Bennetts Associates

Berkeley Group Holdings

BRE

British Land

Clarion Housing Group

Colliers International

GS8

Hoare Lea

Interface

JLL

Kingspan Insulation Ltd

Lendlease

Linkcity

Redrow plc

Telford Homes Plc

William Hare Ltd

Willmott Dixon

WSP

So what lies ahead? This is an initiative which has real momentum, but requires careful implementation if it is not on the one hand to be adding unreasonably to the burden of applicants and authorities (in terms of what further documentation and analysis is required and/or in terms of placing the hurdle for an acceptable scheme impossibly high) or on the other hand to be so lax as to be providing nothing over and over present policy requirements.

DEFRA published on 2 December 2018 its Net gain: consultation proposals document, giving a deadline for responses of 10 February 2019.

The document defines net gain as follows:

Net gain is an approach to development that aims to leave the natural environment in a measurably better state than beforehand. This means protecting existing habitats and ensuring that lost or degraded environmental features are compensated for by restoring or creating environmental features that are of greater value to wildlife and people. It does not change the fact that losses should be avoided where possible, a key part of adhering to a core environmental planning principle called the mitigation hierarchy. Net gain is not a new concept. Several countries around the world have already adopted biodiversity net gain policies and net gain for biodiversity is already supported through national planning policy.”

A footnote to passage notes:

NPPF paragraph 170 states that planning policies and decisions should minimise impacts on and provide net gains for biodiversity; paragraph 174 requires plans to pursue opportunities for securing measurable net gains; paragraph 175 requires planning decisions to encourage biodiversity improvements in and around developments and paragraph 118 states that the planning system should take opportunities to secure net environmental gains“.

The consultation document is a detailed document, but this inset within it summarises the proposed role of biodiversity net gain in the planning system:

Our proposal is that biodiversity net gain will be delivered within the existing planning and development process. This summary is illustrated in the infographic that follows.

When assessing potential development sites, habitat surveys will identify habitats and their condition as is already done for much development. Surveys help identify opportunities for enhancement as part of green infrastructure as well as possible constraints.

Development design will proceed as normal, but better informed by figures for biodiversity losses and gains. A standard biodiversity metric will be populated with habitat information from the site assessment and landscape plans. This will help demonstrate at an early stage that harm has been avoided as far as possible and that new green infrastructure will be of good environmental quality. The metric could also help to anticipate the costs of achieving net gain to factor these into land purchase where possible. No existing planning protection for the environment will be weakened and the principle of avoiding harm first (known as the “mitigation hierarchy”) will continue to ensure that preventing damage to nature will always be prioritised, wherever possible.

If net gain cannot be achieved on site, the metric would provide the right information to discuss habitat enhancement or creation with local providers or with the local authority during pre-application negotiations. The tariff rate would offer a guide for the upper limit of habitat compensation costs, alongside information from growing habitat creation markets.

When preparing local plans, local authorities are able to identify opportunities for habitat improvement that would benefit local people and support nature recovery. They would be able to choose to bring improvement sites forward themselves or work with other providers.

When developers and local planning authorities are consulting with the local community prior to submitting a planning application, it will be possible to use biodiversity net gain figures and habitat enhancement measures to explain the benefits and costs of a development proposal more transparently.

With clearer expectations, developers will be able to submit planning applications with greater confidence that proposals can be supported on biodiversity grounds.

For local authorities, transparent figures for biodiversity losses and gains can be quickly checked and provide confidence that impacts will be positive. Figures will also indicate the environmental quality of green infrastructure as part of development design.

As part of the planning permission, developers would sign up to predictable conditions, obligations or a tariff payment to secure biodiversity net gain. The availability of a tariff would prevent planning permission from being delayed by net gain requirements, and local authorities will be able to demonstrate that positive impacts to help improve the environment for local communities have been secured.”

The full list of the 45 consultation questions within the document demonstrates the potential complexity of what is proposed:

From a practical perspective, key issues are plainly going to include

⁃ establishing a robust ‘biodiversity unit’ metric

⁃ determining what would the required level of improvement (where does 10% come from?)

⁃ determining the circumstances in which a tariff or other off-site arrangement is appropriate and calculating its quantum

⁃ arriving at practical delivery mechanisms, by way of planning conditions, section 106 obligations and/or CIL, that meet relevant legal and policy requirements.

What I would love to understand is really how “mandated” the proposed requirements will be in practice. Does the Government envisage that the detailed regime can be bolted into the existing planning system by way of amendments to the PPG (which seems implausible given the potential nature of the tariff measures in particular) or will the Environment Bill be prescriptive in terms of what precisely will be required?

DEFRA is apparently due to respond to the consultation shortly, with the Bill likely to be published before the summer recess but, dear reader from the near future, you are possibly looking back at this blog post thinking “well that didn’t age well…”

Simon Ricketts, 30 March 2019

Personal views, et cetera

What To Do About Poor Air Quality? The Shirley Case

In this week of all Brexit weeks it was interesting to see the approach of the Court of Appeal in a case, R (Shirley) v Secretary of State (Court of Appeal, 25 January 2019), which turned on the practical extent of the Secretary of State’s duty to give effect to the objectives of the Air Quality Directive. The UK is under binding commitments in the Air Quality Directive to improve air quality, transposed into domestic law by way of the Air Quality Standards Regulations 2010. Was he required to call in for his own determination a planning application for development that would worsen or prolong breaches of limit values in an Air Quality Management Area (“AQMA”) for nitrogen dioxide or PM10?

Before we turn to the ruling, a quick update may be useful on the continuing saga of the Government’s continued failure to prepare a lawful Air Quality Plan in compliance with its duties under the Air Quality Directive (its deadline having been 1 January 2010) since my 4 November 2016 blog post The UK Government & Air Quality (ahem). At the point I wrote the blog post, the Supreme Court had ordered in April 2015 that the Government should prepare a legally compliant Air Quality Plan by the end of 2015, the Government had purported to publish compliant proposals on 17 December 2015 which were then found to be legally inadequate by Garnham J in his judgment in ClientEarth v Secretary of State (No. 2) (Garnham J, 2 November 2016). He gave the Government a further deadline of 31 July 2017.

The Government purported to comply by that deadline but Garnham J held that attempt too was deficient in a number of respects, in R (ClientEarth) v Secretary of State (No. 3) (Garnham J, 21 February 2018). He made a declaration as to the deficiencies as against the requirements of the Directive and Regulations, ordered the urgent production of a supplement to rectify the deficiencies and that the balance of the plan should remain in force in the meantime to avoid any delay in its implementation. His judgment concluded:

I end this judgment where I began, by considering the history and significance of this litigation. It is now eight years since compliance with the 2008 Directive should have been achieved. This is the third, unsuccessful, attempt the Government has made at devising an AQP which complies with the Directive and the domestic Regulations. Each successful challenge has been mounted by a small charity, for which the costs of such litigation constitute a significant challenge. In the meanwhile, UK citizens have been exposed to significant health risks.

It seems to me that the time has come for the Court to consider exercising a more flexible supervisory jurisdiction in this case than is commonplace. Such an application was made to me when the November 2016 judgment was handed down. I refused it on that occasion, opting for a more conventional form of order. Given present circumstances, however, I would invite submissions from all parties, both in writing and orally, as to whether it would be appropriate for the Court to grant a continuing liberty to apply, so that the Claimant can bring the matter back before the court, in the present proceedings, if there is evidence that either Defendant is falling short in its compliance with the terms of the order of the Court”.

The Government published a supplement to its plan on 5 October 2018 and as far as I know there has been no legal challenge to it or application back to Garnham J pursuant to his liberty to apply. So we may finally now have a legally compliant Air Quality Plan?

In the meantime, the European Commission has commenced infringement proceedings against the UK and other member states for delays in implementing the Directive.

To bring the narrative right up to date, the Government published its Clean Air Strategy on 14 January 2019, setting out proposed measures that will in due course form part of the forthcoming Environment Bill. On an initial reading there seems to be a deliberate shift away from the areas where the Government has found it difficult to comply with the Air Quality Directive, particularly in relation to polluting emissions from vehicles. From the foreword by Michael Gove:

We often think of air pollution as a problem caused by road transport and industrial level burning of fossil fuels. These are two of the central sources of pollution, but industry and government have worked together to remedy many of the worst problems by incentivising the use of clean fuels and investing in new technology. We have already secured a significant reduction in emissions since the 1970s. But now this trajectory has slowed.

Now we need to tackle other sources of air pollutants that damage human health and the environment. Air pollution can be caused by intensive agricultural food production, heating our homes or even cleaning with certain solvents

Whether that is well based is for others to judge.

But perhaps more of that another day and now back to Shirley. The appeal before the Court of Appeal concerned an application by Corinthian Mountfield Limited for planning permission for 4,000 dwellings and associated development that had been resolved to be approved by Canterbury Borough Council.

Dove J had rejected the appellants’ claim for judicial review of the Secretary of State’s decision not to call in the application. The Court of Appeal considered three grounds of appeal:

(1) whether the preparation and implementation of an air quality plan complying with Article 23 of the Air Quality Directive would be a sufficient response to breaches of limit values (ground 1 in the appellant’s notice);


(2) whether the Secretary of State had a duty as “competent authority” to use his planning powers to avoid the worsening or prolongation of breaches of the limit values, and was therefore obliged to call in Corinthian Mountfield’s application for planning permission (ground 2); and


(3) whether it was irrational for the Secretary of State to assume that any errors in the city council’s approach could be put right if it reconsidered the application, or could be brought before the court in a claim for judicial review if planning permission were granted (ground 3)
.”

The point is an important practical one – if a project is likely to increase exceedances of pollutant limit values, does that by itself lead to the risk of call in or legal challenge?

“Is the preparation and implementation of an air quality plan complying with article 23 of the Air Quality Directive a sufficient response to breaches of limit values?

Article 13 of the Directive, transposed by Regulation 17 of the Regulations, requires the Secretary of State to ensure that levels of specified pollutants do not exceed defined limit values. In zones where levels are below the limit values the Secretary of State must “ensure that levels are maintained below those limit values and must endeavour to maintain the best ambient air quality compatible with sustainable development“.

Article 23 of the Directive, transposed by Regulation 26 of the Regulations, requires that where exceedances of annual mean limit values of specified pollutants occur, the Secretary of State must draw up and implement an air quality plan to achieve the limit value.

Dove J had “concluded that when the limit values in the Air Quality Directive are exceeded, if article 13 is read with articles 22 and 23, the preparation and implementation of an air quality plan with a view to overcoming those exceedances and keeping their duration as short as possible is the “specific and bespoke remedy”. There was, he said, “no room within the scheme” of the Air Quality Directive for any “freestanding responsibility” to take any specific action on “permits” or “development consents”. He was “unable to read into the legislation any requirement to take particular actions in relation to permits or development consents”.

For the appellants, Mr Robert McCracken Q.C. submitted that the judge had erred in his understanding of the Air Quality Directive and the 2010 regulations. He had failed to adopt a suitably purposive approach, failed to recognize the high level of environmental protection required by EU law, and failed to follow the approach taken by the Court of Justice of the European Union in relevant authority. He had not grasped that the Air Quality Directive requires the taking of action, not merely the preparation of air quality plans, and that the adoption and implementation of an air quality plan is a necessary but not a sufficient response to breaches of limit values…”

As referred to in my 4 November 2016 blog post, this has been Robert McCracken QC’s position for a long time – indeed in my blog post I included a link to his 2015 legal opinion to that effect.

Lindblom LJ examines in detail the Court of Justice of the European Union case law before agreeing with Dove J and rejecting the “purposive approach” argument:

Dove J.’s description of article 23 as providing the “specific and bespoke remedy” for a breach of article 13 therefore seems apt. This does not mean that Member States may not also adopt other measures to address a breach of article 13, in addition to preparing and putting into effect an air quality plan complying with article 23. But nor does it mean that Member States are compelled by any provision of the Air Quality Directive to do that. A demonstrable breach of article 13 does not generate some unspecified obligation beyond the preparation and implementation of an air quality plan that complies with article 23. The case law does not suggest, for example, that in such circumstances a Member State must ensure that land use planning powers and duties are exercised in a particular way – such as by imposing a moratorium on grants of planning permission for particular forms of development, or for development of a particular scale, whose effect might be to perpetuate or increase exceedances of limit values, or by ensuring that decisions on such proposals are taken only at ministerial level“.

Did the Secretary of State have a duty as “competent authority” to use his planning powers to avoid the worsening or prolongation of breaches of limit values?

Again, the answer was no:

I cannot accept that argument. It finds no support in relevant case law. In my view, as Mr Maurici and Mr Pereira submitted, it is not possible to construe the provisions of the Air Quality Directive and the 2010 regulations as constraining the Secretary of State’s very wide discretion either to call in or not to call in an application for planning permission when the limit values under article 13 have not been complied with, or when an air quality plan under article 23 has not yet been put in place or has proved to be deficient or ineffective. The air quality legislation does not do that. It does not have the effect of narrowing the Secretary of State’s call-in discretion in such circumstances, let alone of transforming that discretion into a duty, or of requiring a particular application for planning permission to be refused. None of the provisions of the Air Quality Directive engages with the process of making decisions to authorize individual projects of development. If a proposed development would cause a limit value to be breached, or delay the remediation of such a breach, or worsen air quality in a particular area, neither the Air Quality Directive nor the 2010 regulations states that planning permission must be withheld or granted only subject to particular conditions. These may of course be material considerations when an application or appeal is decided, and so too the measures in an air quality plan for the relevant zone, if there is one, or in an action plan prepared under the Environment Act 1995. But the Air Quality Directive and the 2010 regulations do not, in those or any other circumstances, compel the decision-maker to refuse planning permission, or impose on the Secretary of State an obligation to make the decision himself.”

Was the Secretary of State’s decision not to call in the application irrational?

Given that planning permission had not yet been granted by the city council, it was open to the council to take the application back to committee if it was not called in.

Lindblom LJ held that the Secretary of State’s freedom to exercise his call-in discretion is considerable. “The Secretary of State also knew that if he did not call in the application, the city council would be able to consider it again, taking account of any further representations made to it, and, with the advice of its officers and professional consultants, revisiting the committee’s resolution to grant planning permission. And if planning permission were to be granted, it could be challenged by a claim for judicial review. It was not perverse for the Secretary of State to have these considerations in mind when he made his decision not to call in.”

Lastly, the Court of Appeal considered and rejected for four reasons the appellants’ submission that a reference should be made on the first ground of appeal to the Court of Justice of the European Union:

⁃ the appeal failed in any event on the other grounds so a decision on the questions in the reference would not be necessary to enable this court to give judgment;

⁃ the issue was in the court’s view “acte clair” (ie reasonably clear and free from doubt)

⁃ a reference would cause unjustifiable delay in a case where the decision under challenge was procedural, not substantive

⁃ a reference was opposed by all four respondents.

Concluding thoughts

The case is an interesting example of the way in which EU law has become so familiar to the lawyers and judges of our domestic courts. Nearly all of our environmental law is EU-derived. Post-Brexit, when EU-derived legislation such as the Air Quality Standards Regulations will continue to apply (unless and until amended or revoked) on a free-standing basis and without the backing of the Directive, it is inconceivable to imagine that we will not all in practice still draw upon the CJEU’s case law to assist in matters of interpretation.

Over time this may change, once our legislation starts to diverge with that of the EU (we see already the deliberately differing objectives and approaches of DEFRA’s Clean Air Strategy) and once differing strands of judicial interpretation start slowly to open up. It’s going to get complicated. Our judges will always be more resistant to the purposive approach to interpretation – legislation should mean what it says – which is why in our common law system it is so important that our laws are precise rather than broad statements of principle in the way that has led to so much litigation in relation to EU Directives.

The case also illustrates the scale of the hurdles to be cleared in persuading our courts to refer issues to the Court of Justice of the European Union. If there had been a reference in Shirley, could we have completely ruled out the prospect of a surprise finding, à la People Over Wind? I’m still grumbling, five years on, about the Supreme Court’s refusal in the HS2 Action Alliance case to refer the Strategic Environmental Assessment issues that we raised to the CJEU. The risk/prospect of referral is generally a low one.

The earlier ClientEarth sequence of cases (within which there was in fact a reference) raises the separate question as to whether it is sufficient for responsibility for compliance with environmental targets to remain with Parliament and whether the proposed Office for Environmental Protection would have sufficient power as against a future Government that is dragging its heels. Would the OEP be able to fulfil that supervisory role that Garnham J has had to take in the ClientEarth litigation?

But in the meantime, it is helpful to have the Court of Appeal’s clarification that non-compliance by the Government with its international responsibilities does not lead to what would effectively been an embargo on any form of development where it could be argued that there might be an adverse effect on air quality in an AQMA, regardless of the local improvement measures to which the relevant local authorities had committed under the Directive and Regulations, and regardless of the usual statutory requirement for decision makers to determine applications in accordance with the development plan unless material considerations indicate otherwise. It would have led to decision-making chaos.

But that shouldn’t let anyone off the hook. The onus really must continue to rest with the Government and local authorities to take the necessary steps to ensure that roadside emissions are reduced to acceptable levels, no matter how politically unpopular the implications (eg further charging zones, making it more expensive and less convenient to use a polluting vehicle and the reverse for users of public transport – and priority being given to pedestrians and cyclists in our cities). The onus must also rest with developers to seek to ensure that their proposals are, in the language of the draft London Plan, air quality neutral or positive.

Clean air may be invisible but surely, one day, it will be seen as a vote winner?

Simon Ricketts, 2 February 2019

Personal views, et cetera

Street Trees

DEFRA published its Protecting and enhancing England’s trees and woodlands consultation paper on 30 December 2018, with a deadline of 28 February 2019 for responses. The proposals include imposing new statutory duties on local authorities:

⁃ “a duty to consult on the felling of street trees

⁃ “a duty to report on tree felling and planting”

Presumably these are intended to be included in the forthcoming Environment Bill and they could justifiably be known as “Sheffield’s Law”. After all they of course have their roots in the peculiar saga there, where the city council and its PFI contractor Amey have been engaged in systematic felling of roadside trees at an unprecedented scale.

I reported in my 17 December 2016 Trees In Court: A Festive Special blog post on the the late Gilbart J’s rejection, in R (Dillner) v Sheffield City Council  (27 April 2016) of a local resident’s challenge to that process. The judge commented: “It may be that those who will be disappointed by the terms of this Judgment will want to see a different legislative regime in place. That is a matter for Parliament, and not for this Court.

The continued felling led to significant protests, with arrests, curiously, made under section section 241 of the Trade Union and Labour Relations Act 1992. (The Independent Office for Police Conduct subsequently found in August 2018 that the arrests and detention were inappropriate and in December 2018 compensation payments were awarded).

The commitment in the Conservative Party’s manifesto in May 2017 surely specifically had the Sheffield situation in mind:

In addition to the 11 million trees we are planting across our nation, we will ensure that 1 million more are planted in our towns and cities, and place new duties on councils to consult when they wish to cut down street trees.” (my emboldening).

On the back of the Gilbart J ruling, an injunction in relation to continuing protests was ordered by Males J in Sheffield City Council v Fairhall and others (15 August 2017) in the following terms:

“Accordingly I order that the three remaining named defendants must not:

1.
(1) enter any safety zone erected around any tree within the area shown edged red on the plan which will be attached to the order (the area of Sheffield City);
(2) seek to prevent the erection of any safety zone;
(3) remain in any safety zone after it is erected;
(4) knowingly leave any vehicle in any safety zone or intentionally place a vehicle in a position so as to prevent the erection of a safety zone; or
(5) encourage, aid, counsel, direct or facilitate anybody else to do any of the matters in paragraphs 1 – 4 above including by posting social media messages.

2. There will in addition be an order in the same terms against persons unknown being persons intending to enter or remain in safety zones erected on public highways in the city of Sheffield. Such an order is appropriate in accordance with the principle established in Hampshire Waste Services Ltd v Intending Trespassers upon Chineham Incinerator Site [2003] EWHC 1738 (Ch).”

Like Gilbart J, Males J distanced himself from the wider issues:

“I must emphasise that this judgment deals solely with the legal question whether the council is entitled to an injunction. That will include consideration of whether as a matter of law the council is entitled to exclude members of the public from safety zones around trees so that those trees can be felled and whether or to what extent those who object to this course are entitled to maintain a presence within safety zones in order to prevent the work from being carried out. However, I express no view, one way or the other, as to the merits of the council’s tree felling programme or the objectors’ campaign. Those are social and environmental questions which are politically controversial and can only be resolved in a political forum. They are not a matter for this court

Following the June 2017 general election, Michael Gove had of course been brought back into the Cabinet as Secretary of State for Environment, Food and Rural Affairs. In March 2018 he was reported by the BBC as having “accused Sheffield City Council of “environmental vandalism” and promised to do “anything required” to end its controversial tree-felling programme.

Felling paused the day after, although the city council renewed its injunction in July 2018, by way of a High Court ruling (His Honour Judge Robinson, 12 July 2018)

The Yorkshire Post reported on 13 December 2018 that the city council now announced a revised tree management strategy, reducing significantly the amount of felling proposed.

So back to the DEFRA consultation proposals.

Street trees‘ are defined as “managed trees lining the highway within the urban environment“. The duty to consult would not apply to other urban trees such as parks or open spaces.

The idea is that the “local authority” (presumably the local highway authority, although this is not made clear – eg presumably TfL in London in relation to the TfL network?) would consult “on every tree proposed for felling during a four week closed consultation period. A notice inviting consultation to be placed on the tree, letters sent to local residents in close proximity to the tree (100m2). If more than 50% of respondents in the closed consultation disagree with the proposal this will trigger a full public consultation.” Full consultation appears to mean “a notice published in the town hall and online“.

Is this workable? Assuming that there would often need to be a full consultation process, how long would this all take, bearing in mind that the consultation responses would then need to be conscientiously considered by the authority, presumably at a relevant committee meeting held in public with officer’s report and so on, before a legally robust decision could be taken?

There would be exemptions, the scope of which could well lead to dispute:

“1. Dangerous: Tree needs to be felled because it presents an immediate danger and work is urgently needed to remove that danger. Trees that immediately affect the operational use of the footway by people – forcing them to use the carriageway – are considered dangerous for the purposes of this policy.

2. Responding to a pest or disease instance:Removal of a tree is a critical partof the implementation of a management or control programme, following notification by regulatory authority in response to a pest or disease instance.

3. Dead.

4. Damaging:Tree needs to be felled because it is causing significant damage to
the apparatus of a statutory undertaker (such as gas, electricity or water) where urgent access is required for repair; or tree needs to be felled because it can be demonstrated that it is causing significant damage and threatens the integrity of a footpath or carriageway to such an extent that it presents an imminent danger.

5. Young Trees Damaged/Failed:Young trees (up to fifteen years old) which will be replaced within two years. The position of the tree has already been established. Consultation could lead to discussion that undermines that decision when replacement is essentially a maintenance management activity

There is a further complication:

“Trees designated as having special historic or cultural significance would automatically be subject to wider public consultation. To meet this definition trees would have to meet one of the following criteria. The tree may be:

• culturally, historically, ecologically significant – such as veteran trees

• linked to a person or event that is culturally or historically significant
For trees that meet this criteria an extraordinary measure/action or level of resource can be taken or dedicated to its preservation. The local authority may initially be unaware of this significance so a full consultation where significance is suspected or raised as an issue is essential
.”

So yet again we are faced with quite a complex, or at least fiddly and fine grained, regime to deliver on a superficially nice idea – and to what end? If Sheffield City Council had followed these procedures the outcomes could well have been the same.

I also find it strange that there is no mention in the document of the town and country planning regime, for example the role of tree preservation orders and the protection provided to trees in conservation areas. Would not amendments to the planning regime not have been more logical?

The separate proposed duty to report on tree felling and replanting raises a further issue. The document is silent about the intended frequency of reporting but let’s assume it is to be annual. This reporting will not just cover street trees but will be much wider:

Local authorities would be required to record on felling and planting activity for which they are both directly and indirectly responsible, including trees which are felled as part of planning decisions.”

So could we see “local authorities” (by which I assume is meant local highway authorities) have to collect data as to how many trees are to be felled as a result of planning decisions by the local planning authority (that are not even on highway land), or will this only apply to unitary authorities? More thinking required!

I have managed to avoid mention of the separate, much more complex, set of proposals within DEFRA’s other current consultation, on biodiversity net gain (2 December 2018). That also has some major potential implications – these days planners’ eyes need to be on DEFRA as much as MHCLG it seems to me.

Simon Ricketts, 5 January 2019

Personal views, et cetera

Photo courtesy of the Woodland Trust