Thank you, Heather Sargent, for sharing this appeal win on LinkedIn. This is what I turn to LinkedIn for, rather than for posts about legal directory rankings!
This decision letter dated 6 October 2023 is a must-read for anyone grappling with Conservation of Habitats Regulations issues in relation to nutrient/water neutrality or recreational impact issues.
In summary, the Inspector, Michael Hayden was faced with two identical appeals against the refusal of planning permission relating to proposed residential development (up to 78 homes). The site straddles the South Downs National Park Authority and Horsham District Council areas.
There were various issues to be determined by the inspector but I just want to focus on one:
“the effect of the proposed development on the integrity of the Arun Valley Special Area of Conservation, Special Protection Area and Ramsar sites, with particular reference to water abstraction, taking account of the proposed water neutrality measures.”
I first covered the north Sussex water neutrality issue in my 19 October 2021 blog post Development Embargos: Nitrate, Phosphate & Now Water. This is equivalent to the nutrients issue which of course has recently been so much in the news – and where we await a fresh Bill to re-present the legislative fix rejected by the House of Lords in its report stage debate on the Levelling up and Regeneration Bill (see eg my 16 September 2023 blog post NN No).
One of the frustrations surrounding the neutrality veto has been with the approach of Natural England and local planning authorities, which have been disinclined to accept that, given that any adverse effect on the integrity of the relevant SAC or SPA only occurs when the homes are occupied, in appropriate circumstances planning permission can still lawfully be granted, and reserved matters applications and pre-commencement condition discharge applications approved, with a Grampian condition preventing occupation until a satisfactory solution is in place to ensure no adverse effect. Whilst it is said that this just kicks the can down the road – who will build if there is no certainty as to occupation? – in some circumstances it can assist, where for instance there will in any event be a long development lead time and the developer is prepared to take the risk that in due course a strategic solution will have been arrived at and implemented – and is prepared to contribute to the costs of that solution and generally seek to ensure that it is achieved.
So what is so interesting about the Storrington decision letter is that the appellant took this issue head-on. And the inspector accepted its approach. See paragraphs 67 to 109 of the decision letter. If your work involves neutrality issues, it’s worth reading them in their entirety.
The appellant’s position was that its scheme incorporated various measures to reduce the increased demand for mains water from the proposed development:
“76. In order to achieve water neutrality, the appellant proposes to mitigate the increased demand for mains water from the proposed development through a combination of on-site water reduction measures and an off-site offsetting scheme. In terms of on-site measures, it is proposed to install water efficient fixings, and greywater recycling and rainwater harvesting systems into each dwelling. It is common ground that these measures would reduce potable water consumption from the residential development to 8,129.07 litres per day, subject to suitable management and maintenance to ensure they are effective.
77. The signed and executed UU contains obligations requiring an On-Site Water Neutrality Scheme to be submitted to, and approved by, the LPAs and implemented prior to first occupation, which would include a regime for the management and maintenance of greywater recycling and rainwater harvesting systems by a management company. I am satisfied this would provide a legally binding mechanism for the LPAs to ensure the long term effectiveness of the measures to reduce potable water use to the required level within the proposed residential development. This position was confirmed by the Council’s witness in oral evidence at the Inquiry.”
Over and above these measures:
“79. The appellant seeks to rely on one of two alternative means of offsetting the residual water demand of the proposed development:
• payment of a fee or tariff into an LPA-led offsetting scheme for the Sussex North WRZ as a financial contribution towards an equivalent reduction in mains water demand elsewhere in the WRZ (the strategic offsetting scheme); or
• installation of a rainwater harvesting scheme at a garden centre in Horsham that would deliver an equivalent reduction in mains water use (the site specific offsetting scheme).
80. The strategic offsetting scheme is not yet in place, but how it would operate is explained in the Mitigation Strategy prepared for the Sussex North WRZ45. The first element of the Strategy is a programme being implemented by Southern Water to reduce water demand across the network by reducing leakages and household water consumption. This is expected to mitigate a large part of the increase in demand from committed and planned housing growth in the WRZ in the period 2021-2039.
81. The balance of the increased water demand is proposed to be mitigated through an LPA-led offsetting scheme, comprising a series of measures to reduce water demand in social housing and property under LPA control, which would be funded by a tariff on all new development per litre of mains water required to be offset. The most significant measure would be a programme for retrofitting flow regulators into existing social housing stock within the WRZ managed by local authorities or registered social landlords (RSLs), the effectiveness of which has already been demonstrated in trials.”
“83. On the question of prioritisation, the Mitigation Strategy recommends that priority should be given to sites allocated in local plans or identified in the associated housing trajectories, such as through the allowance for windfall, albeit not strategic-scale windfall49. In this case, around two-thirds of the proposed residential part of the appeal site is allocated for housing in the SSWNP. The housing proposed on the part of the site allocated for allotments would count as windfall provision, not at a strategic scale, for which an allowance is included in the housing trajectory for Horsham district from 2024/25 onwards50. If allowed therefore, the appeal site should be a candidate for priority of access to water neutrality via a payment to the offsetting scheme, given that it forms part of the planned and projected housing growth in Horsham district.
84. I recognise that the governing body for the strategic offsetting scheme is likely to have choices to make in terms of an order of priority for permissions to access the scheme, particularly early on in its operation. However, if the appeal proposals were allowed, the appellant confirmed that they would not need to rely on the strategic offsetting scheme for a period of 18 months from the grant of planning permission, whilst reserve matters were dealt with, the allotments relocated and site infrastructure laid. By that time (early 2025), the LPA-led offsetting scheme would have been operating for around 12 months and offsetting capacity from the SW programme is likely to be available to contribute to water neutrality in planned housing schemes. Furthermore, under the suggested standard time limit condition, the appellant would have up to 5 years from the grant of planning permission for the outline residential component of the proposed development to be implemented. By then (mid-2028), the strategic scheme would have been operating for over 4 years, with further offsetting capacity added to the scheme by both the LPA-led and Southern Water programmes.
85. Therefore, there is firm evidence that the proposed development would be able to access offsetting capacity within the strategic scheme to mitigate its residual water demand. However, case law establishes that in order for a competent authority to reach a conclusion under Regulation 63 of the Habitats Regulations that a project will not adversely affect the integrity of the European site, there must be no reasonable scientific doubt. In order to provide the necessary degree of certainty, the appellant has proposed a ‘Grampian’ condition and an obligation in the S106 UU, the effect of which would be to prevent implementation of the proposed development until a payment is made to HDC under the strategic offsetting scheme and water neutrality secured.”
The inspector noted that the threshold for imposition of a Grampian condition is simply that it would not be the case that there are “no prospects at all” of the action in question being performed within the time-limit imposed by the condition. “The Council’s evidence is that there is a very slim, 5%53 prospect of the appeal proposal being able to offset its water demand through the strategic scheme during the lifetime of any permission. A slim prospect does not amount to no prospect at all. Therefore, the condition would be reasonable in terms of the likelihood of access to the strategic offsetting scheme.”
The council was worried about the precedent effect but the inspector considered that each application needs to be determined on its own merits. “In this case, I have established above that a large part of the residential component of the appeal site is included in the planned housing growth in Horsham District, and the remainder would contribute to the windfall allowance in the housing trajectory, both of which the Mitigation Strategy recommends should be priorities for the strategic offsetting scheme. Accordingly, the condition would not be unreasonable on this count either.”
He considered that the measures set out in the section 106 unilateral undertaking would be workable in practice and met the requirements of Regulation 122 and of section 106 itself.
But what about Natural England’s objection?
“93. NE’s position with regard to the strategic offsetting scheme remains that whilst the mitigation strategy is evolving, decisions on planning applications should await its completion or demonstrate water neutrality by other means. Whilst the advice of NE as the expert national agency on this matter carries significant weight, case law establishes that, as the competent authority, I may lawfully depart from this advice, provided I have cogent reasons for doing so.”
After analysis he considered that he did.
The appeal was allowed. The relevant planning condition reads as follows:
“16. No development shall commence that results in an increased use of potable water when compared with the existing baseline water usage at the site until either:
(1) Water neutrality mitigation has been secured via the Council’s adopted Offsetting Scheme (in line with the recommendations of the Sussex North Water Neutrality Study: Part C – Mitigation Strategy, Final Report, December 2022) as set out in the Planning Obligation that accompanies this planning permission and this has been confirmed in writing by the Local Planning Authority; or
(2) The site specific Water Neutrality Mitigation Scheme set out in the Planning Obligation that accompanies this planning permission has been implemented in accordance with the requirements set out in the Planning Obligation and the Local Planning Authority has given its written confirmation of the same.”
Horsham District Council had applied for costs, partly on the basis that “the Appellant did not submit their full case on water neutrality with the appeals, delayed the provision of key information on their revised water neutrality strategy until 31 January 2023, and presented information on rainwater yield coefficients in an inaccurate and misleading way, leading Natural England and the Council to misinterpret the case, and the Council to incur unnecessary and wasted expense in terms of counsel’s advice and officer time redrafting its evidence.”
That costs application was refused.
This is a decision which will cause ripples but in my view is wholly in line with the regime set out in the Conservation of Habitats Regulations and potentially applicable to issues relating to, for instance, nutrient neutrality or recreational impact (eg Chiltern Beechwoods SAC).
B Side: Keep The Customer Satisfied
Phew, no politics in this blog post. After my midweek Drive Time post I was politely asked by a reader to keep politics out of my comments on planning. I think it was felt that simonicity had become simon15minicity. All reaction is good, and thank you for it, but the request is difficult, given that the whole of the planning system is a political construct and given that every legislative stub that we have to navigate around is the result of an often short-term political decision in the past. We arrive at a better planning system by seeking to ensure that those political decisions are as considered as they need to be. I also had push-back from a couple of people at my characterisation of the prime minister’s comments on 15 minute cities as “bizarre”. I would simply refer readers to the numerous fact-check pieces out there (see eg Full Fact). Whether wilful or in ignorance, I don’t think there really is an excuse for mixing up the 15 minute city concept (previously supported by the Government – see eg this 31 March 2023 statement) with traffic management measures in cities such as Oxford to ration use of road space and prioritise active travel. At the recent Oxford Joint Planning Law Conference, that hotbed of woke radicalism, Jonathan Porritt spoke of the dangers of each of us being a WeWeBe: a well-informed, well-intentioned, bystander. Let’s not be that. We can avoid that whilst maintaining party political neutrality. If people who know about something don’t say something, who will?
The neutrality concept needn’t mean that nothing at all can be done – or said.
“I’m not sure that anyone can blame the EU, or lawyers, or local authorities, or developers, but no doubt they will. Rather, the problem arises from the apparent lack of adequate measures to ensure that, by virtue of its nitrate content, sewage generated as a result of new development does not harm the integrity of coastal waters protected as special areas of conservation and special protection areas under the Habitats and Birds Directives. Nitrate enrichment causes green algae, harmful to protected habitats and birds, through a process known as eutrophication. The chickens … are coming home to roost following a lack of priority for too long on the need by the Government and water companies to ensure that we have adequately funded and operated waste water treatment processes”
Of course the issue subsequently spread in terms of geography and by way of concerns as to phosphates as well as nitrates, hence references now to “nutrients”. (There are also related situations in relation to water neutrality in Sussex and in relation to recreational pressures on particular SACs – see my 9 October 2021 blog post Development Embargos: Nitrate, Phosphate & Now Water – and in relation to nitrogen deposition on protected areas caused by traffic, eg see my 8 April 2017 blog post Heffalump Traps: The Ashdown Forest Cases – but the rest of this post focuses on nutrients).
This Government failed for far too long to grasp the nettle and now, when it has, it has been badly stung. Surprise surprise.
My 29 August 2023 blog post The Government’s Big Move On Nutrient Neutrality – Now We Have Seen The Government’s LURB Amendment set out the way in which the Government belatedly looked to neutralise the nutrient neutrality problem for housebuilders and others who are stuck unless and until acceptable strategic or bespoke mitigation solutions are in place, by way of an amendment to the Levelling up and Regeneration Bill. The proposal was to take to remove nutrient pollution, by way of urban waste water, out of the ambit of the “harm to protected sites” integrity test. Subtle it wasn’t.
The Lords report stage debate on what became Amendment 247YYA took place on 13 September 2013. We all know what happened: the amendment was rejected 192 – 161.
As I set out in my 29 August 2023 blog post on the day the amendment was published, on balance I supported it – the need for a solution now is almost overwhelming – but I identified some questions to which the Government needed to be ready with answers.
The brutal reality is that their answers weren’t good enough, particularly on the key question – whether this amounted to a regression from current environmental standards. The day after the amendment was published, the Office Of Environmental Protection sent the Government a lettermaking clear its expert view that the proposal would indeed amount to regression. Nature conservation bodies rose up as one notwithstanding Therese Coffey’s response (31 August 2023)
This may be a Government that still on paper retains a majority but boy it is on the ropes. The media and public opinion joyfully conflated the nutrient neutrality issue with its justified disgust as to the poor performance of water companies in allowing the discharge of untreated sewage to rivers and coastal waters (and the failure of the Government to hold those companies properly to account). I set out in my 9 September 2023 blog post LURB Lords Latest the kicking that the Government received on the proposal in the Commons on 5 September.
As at 5 September Labour appeared to be sitting on the fence as to whether it would support the proposal but once they came out against it on 12 September 2023 (proposing an alternative amendment which was subsequently withdrawn during the debate without a vote) I would suggest that the writing was on the wall. As a sign perhaps of the Government’s desperation, DLUHC published a late lobbying document in the form of the nutrient neutrality announcement: explanatory paper (11 September 2023).
The Government amendment was rejected 192 votes to 161. And that folks is that. Procedurally it cannot be reintroduced into the Bill when it returns to the Commons. Nor in my view is there time for a fresh Bill.
What lessons to draw?
The Government moved far too slowly. Clive Betts nailed in it the 5 September 2023 debate: “This is hardly a new problem, is it? The Court decision was in 2018, yet last year we had the levelling-up Bill, which was really a planning Bill with a bit of levelling up added on—no mention of the issue there. In December we had major consultations on changes to the national planning policy framework—no mention of the issue there. The Committee wrote to the Minister and asked how many more consultations on planning issues there would be this year. We were given nine of them—no mention of the issue there. If it is such a serious issue, why has it taken the Government so long to act? It looks like the Government are making it up as they go along. This is a panicked response from the Government to the collapsing numbers of housing starts which the Minister simply wants to do something—anything—about.”
As a result of moving too slowly, it brought forward a proposal which had not been tested by way of any consultation whatsoever. Nor plainly had it been the subject of any cross-party agreement. Nor it seems had the Office for Environmental Protection been asked to advise ahead of the amendment being tabled, nor indeed Natural England. Indeed Natural England have not made any public statement in support of the proposal! Isn’t this all politics 101?
There was no clear narrative that explained the precise nature of the eutrophication issue so as to separate it from other justified concerns over water quality.
What now should happen?
Plainly the Government should re-double its efforts to work with affected authorities and with the water industry to introduce strategic measures to reduce nutrient deposition into watercourses which are protected as SACs and SPAs.
Plainly it should be working with Natural England to ensure that Natural England is in a position where its advice to authorities can be that, due to its confidence that these reductions will take place within the required timescale, there will not be an adverse effect on the integrity of the relevant SPA/SAC as a result of the particular proposal. With that assurance, and perhaps with guidance that any effects arise largely from occupation rather than construction and that therefore there is a role for planning conditions which at least allow developers to get on with construction if they are prepared to take the risk that reductions will take place in time for occupation, there is no need whatsoever for legislation.
Other neutrality issues should receive equivalent focus. It’s not all about nutrients.
Why don’t I finish with a controversial idea? If, in the face of expert advice to the contrary, planning applications are still held up, why doesn’t the Secretary of State call in the relevant application, in which case he becomes the competent authority in place of the local planning authority when it comes to determining whether there is an adverse effect on the integrity of the relevant SPA/SAC?
This coming week’s Lords Built Environment Committee report on the impact of environmental regulations on development will make interesting reading. We haven’t really even started to talk about environmental outcomes reports…
The Levelling-up and Regeneration Bill resumed its progress through Report stage in the House of Lords this week, with sessions on 4 and 6 September. This post seeks to identify the main amendments made in those sessions.
I know what you’re all asking – what about the Government’s late proposed amendment to address the nutrient neutrality issue (see my 29 August 2023 blog post The Government’s Big Move On Nutrient Neutrality – Now We Have Seen The Government’s LURB Amendment)? That will be debated at a further session next week, on 13 September 2023. The proposed amendment was in the meantime the subject of an urgent question tabled in the House of Commons by the Green Party’s Caroline Lucas on 5 September 2023. The debate is interesting as a hint of what awaits both in the Lords on 13 September but then once the Bill returns to the Commons for its final stages:
The Speaker agreed that the urgent question was appropriate notwithstanding the Secretary’s written ministerial statement the previous day: “I expect Ministers to come to the House, as I did not think a written ministerial statement was the way to inform the House.”
On being challenged that the amendment amounted to a regression from current standards of environmental protection, the minister, Rachel Mclean responded: “It is important to consider what we are talking about here, which is unblocking 100,000 homes that add very little in terms of pollution. To be clear, our approach means that there will be no overall loss in environmental outcomes. Not only do the measures that we are taking address the very small amount of nutrient run-off from new housing, but at the same time, we are investing in the improvement of environmental outcomes. We do not agree that this is regression on environmental standards. We are taking direct action to continue to protect the environment and ensure that housing can be brought forward in areas where people need it.”
A nuanced question from shadow minister Matthew Pennycook:
“As a result of the Government’s failure over many years to make decisive progress in tackling the main sources of problem nutrients, namely farming and waste water treatment works, the requirements for nutrient neutrality in sensitive river catchments present a challenge to securing planning permission for new housing development. It is therefore right in Labour’s view that the operation of the rules around nutrient neutrality is reviewed with a view to addressing problematic delays and increasing the pace at which homes can be delivered in these areas.
However, we have serious concerns about the approach that the Government have decided on. Not only does it involve disapplying the Conservation of Habitats and Species Regulations 2017, but it does not legally secure the additional funding pledges to deliver nutrient management programmes and does not provide for a legal mechanism to ensure that housing developers contribute towards mitigation.
I put the following questions to the Minister: what advice did the Government receive from Natural England about potential reform of the laws around nutrient neutrality? Did it offer a view on the Government’s proposed approach? Given the amount of mitigation currently available in the pipeline, which is estimated at allowing for approximately 72,000 homes, did the Government consider an approach based on the habitat regulations assessment derogation and a revised credit mitigation system to front-load permissions and provide for future compensatory schemes? If so, why did they dismiss that option? What assessment have the Government made of the impact of their proposed approach on the nascent market in mitigation credits, and investor confidence in nature markets more generally? Why on earth do Ministers believe developers will voluntarily contribute to mitigation under the proposed approach?
Finally, the Government claim their approach will see 100,000 planning permissions expedited between now and 2030. Given that house building activity is falling sharply and the pipeline for future development is being squeezed—not least as a result of housing and planning policy decisions made by this Conservative Government—what assessment has the Department made of the number of permissions that its disruptive approach will unlock within the first 12 months of its operation?”
A rather pithy summation of the position, from the chair of the Levelling Up, Housing and Communities Committee, Clive Betts:
“This is hardly a new problem, is it? The Court decision was in 2018, yet last year we had the levelling-up Bill, which was really a planning Bill with a bit of levelling up added on—no mention of the issue there. In December we had major consultations on changes to the national planning policy framework—no mention of the issue there. The Committee wrote to the Minister and asked how many more consultations on planning issues there would be this year. We were given nine of them—no mention of the issue there. If it is such a serious issue, why has it taken the Government so long to act? It looks like the Government are making it up as they go along. This is a panicked response from the Government to the collapsing numbers of housing starts which the Minister simply wants to do something—anything—about.“
Turning now to the Report sessions on 4 and 6 September 2023 , I set out below the main amendments agreed upon (subject to them surviving the return of the Bill to the Commons). The full list of amendments is much longer and for the detail you can click on the following:
[Many thanks to my Town Legal colleague Amy Penrose for detailed work on all this].
Amendment 184A
This amendment clarifies that inserted subsection (5B) in section 38 of the Planning and Compulsory Purchase Act 2004 requires a determination under the planning Acts to be made in accordance with the development plan and any national development management policies, taken together.
So the replacement to section 38 (6) would now read: “the determination must be made in accordance with the development plan and any national development management policies taken together, unless material considerations strongly indicate otherwise”. What does “taken together“ add? Perhaps to avoid an interpretation that the determination needed to be both in accordance with the development plan and in accordance with any national development management policies – instead look at it all together in applying planning judgment as to whether the determination is in accordance? It’s great being a lawyer.
Amendment 190 (tabled by Baroness Thornhill) – voted through against the Government 186 – 180
The amendment requires the Secretary of State to carry out a sustainability appraisal before designating a national development management policy; it must comply with public consultation requirements and a process of parliamentary scrutiny based on processes set out in the Planning Act 2008 (as amended) for designating National Policy Statements, and it must contain explanations of the reasons for the policy, including an explanation of how the policy set out takes account of Government policy relating to the mitigation of, and adaptation to, climate change.
Amendment 191 (tabled by Lord Ravensdale) – voted through against the Government 182 – 172
The amendment places a duty on the Secretary of State and relevant planning authorities respectively to have special regard to the mitigation of, and adaptation to, climate change with respect to national policy, local plan-making and planning decisions.
Amendment 191A (tabled by Lord Crisp) – voted through against the Government 158 – 149
The amendment specifically places a duty on the Secretary of State to promote healthy homes and neighbourhoods – a huge success for the Town and Country Planning Association’s Campaign for Healthy Homes.
(see also a detailed Schedule to be inserted into the Bill setting out for instance what is meant by healthy homes principles – amendment 191B).
Amendment 193A (tabled by Lord Best) – voted through against the Government 173 – 156
The amendment requires local plans to “identify the local nature and scale of housing need in the local planning authority’s area and must make provision for sufficient social rent housing, to eliminate homelessness within a reasonable period as stipulated in the updated local plan, and to provide housing for persons registered on the local housing authority’s allocation scheme within the meaning of section 166A of the Housing Act 1996.” It would apply both “in relation to social housing provided both by the local housing authority where it retains its own housing stock and by private registered providers of social housing”. The information would need to be updated at least annually.
These are all significant interventions. Let’s see the approach that the Government takes back in the Commons. A motion will also be needed to carry over the Bill to the next Parliamentary session, without which we will see (wait for the LURB pun, wait for it, wait) .. LURB’s labours lost.
No-one should be playing party politics with the nutrient neutrality issue. It’s difficult. It needs to be fixed. This is a quick post just to try to head off some of the comments that I have seen on social media today because the urgent need for a solution is in danger of being subsumed by general scepticism of this Government, exacerbated by the way that water companies have been allowed to fail in relation to water supply and sewage discharges. I write this on the back of Nicola Gooch’s excellent blog post this morning, LURB Watch: Government confirms Nitrates’ amendments to be tabled in House of Lords shortly but since then we now have the proposed amendments to the LURB.
First of all, the basics:
House building is not the reason why some rivers and coastal waters around the country, protected as special areas of conservation or special protection areas by way of EU-derived legislation, are at or beyond a tipping point for the ecological integrity of those areas. Instead this is largely due to the historic run off of nitrates and/or phosphate from farm land and the inadequacy of our water infrastructure.
But the consequences of outflows from new housing has been seen by Natural England as the straw that would break the camel’s back and therefore its advice to local planning authorities faced with planning applications in affected catchments has been, in summary, not to approve them (and not to approve reserved matters applications or discharge pre-commencement conditions) unless the particular scheme can be shown to be nutrient neutral, given that otherwise in its view the “appropriate assessment” test in the Conservation of Habitats Regulations 2017 cannot be met, ie that the proposal will not adversely affect the integrity of any protected area.
So housebuilding has in practice been halted in various areas of the country until solutions can be implemented that demonstrably deliver nutrient neutrality.
To underline, this is not mainly about the polluting effects of new homes – it is about pre-existing problems.
The Government plainly recognises that the problem needs to be addressed. The current position, where so many schemes are stalled, is ridiculous and out of proportion to the extent to which housebuilding is actually the issue.
The key proposed amendment is to introduce a new regulation 85B into the 2017 Regulations (see pages 19 and 20 of the pdf). Sub-paragraphs (2) and (3) would read as follows:
“(2) When making the decision, the competent authority must assume that nutrients in urban waste water from the proposed development, whether alone or in combination with other factors, will not adversely affect the relevant site.
(3) Accordingly, a potentially adverse effect on a relevant site caused by nutrients in urban waste water, whether alone or in combination with other factors, is not a ground for the competent authority to determine that—
(a) an appropriate assessment is required by regulation 77(6), or
(b) the proposed development will adversely affect the integrity of the relevant site or otherwise have negative implications for the site.”
Strengthened duties on water companies by way of their environmental permitting processes are also proposed in the amendments, but this is radical!
If enacted, it would certainly enable permissions, reserved matters approvals and pre-commencement conditions to be unjammed. On balance in my view it is to be supported. However, the Government does need to be ready with answers to questions like these:
Given that the Government has committed to no regression from the environmental protections that we enjoyed pre-Brexit (NB Mr Gove, don’t give me that “defective EU laws” politicking – it’s our water system and environmental permitting system that is defective not the underlying law!), why does this not amount to regression? In its defence no doubt the Government would point to the commitments in the press statement not just to “significantly expanding investment in and evolving the Nutrient Mitigation Scheme run by Natural England, doubling investment to £280m to ensure it is sufficient to offset the very small amount of additional nutrient discharge attributable to up to 100,000 homes between now and 2030” but also the package of longer term measures that are set out in detail in the statement. But if these commitments are solid enough to be relied upon, why can’t they just be taken into account in determining that there will not be an adverse effect on the integrity of the relevant protected area? Why isn’t the Government confident that this would be Natural England’s advice? Wouldn’t that be a more legally coherent strategy than simply taking nutrients issues out of the appropriate assessment process? And if Natural England can’t sign that position off in relation to any particular protected area, doesn’t that rather have the whiff of regression?
What about developers who have signed up to expensive nutrient neutrality schemes or are negotiating at present if the Government is effectively now removing the issue from their plate? Or will Natural England and local authorities still raise the nutrients issue by way of objection to proposals in planning terms, even if no longer able to wave the Conservation of Habitats Regulations big stick? Is it indeed right (or even envisaged) that developers should be let entirely off the hook?
What about the water neutrality issue in Sussex, which has led to an equivalent logjam, or issues as to recreation impacts in other areas of the country? Similar principles surely apply.
Will Parliament allow the Government to get away with shoehorning this set of provisions into the Bill at this late stage (see the comments in Nicola’s post) and what does it mean for the timing of Royal Assent? How confident can we be that the provisions will (a) survive to Royal Assent and (b) be brought into force?
These are just initial thoughts. Better informed commentary very welcome.
CG Fry v Secretary of State (Sir Ross Cranston, 30 June 2023) is a difficult case with a perhaps unsurprising answer, although one that is disappointing to many.
I’ve often written about the ongoing problems arising from Natural England’s advice that in certain areas, due to potential harm to Special Areas of Conservation and Special Protection Areas by way of nutrients (nitrates or phosphates), water abstraction pressures or recreational pressure, schemes should not be permitted to proceed without demonstrating (through the local planning authority carrying out “appropriate assessment” under the Conservation of Habitats Regulations 2017), that there will not be an adverse effect on the integrity of the relevant protected area. See for example my 18 March 2022 blog post New NE Nutrient Neutrality & Recreational Impact Restrictions (+ DEFRA Nature Recovery Green Paper).
The stage at which appropriate assessment is usually carried out is when an application for outline or full planning permission is being determined in circumstances where it is likely that the development will have a significant effect on an SPA or SAC. But one of the most frustrating aspects for developers about the introduction, usually without notice on the part of Natural England, of these controls is Natural England’s position, supported by the Government, that appropriate assessment is required even if planning permission has already been obtained and where what is being sought is reserved matters approval or discharge of a pre-commencement condition. I mentioned the problem in my 26 March 2022 blog post More On That Natural England Advice. As I said then:
“This of course cuts across the traditional planning law tenet that the planning permission stage is the point at which the principle of the development is determined to be acceptable, with subsequent approvals serving to define the detailed scale and disposition of development within the tramlines of what has been authorised by way of the permission. The authorities’ stance means that planning permission no longer gives any certainty as far as purchasers and funders are concerned and is a real impediment to market certainty and confidence. Who knows what equivalent restrictions lie ahead, after all? Even if your area is not affected at present, this should be of concern.”
I asked:
“Is anyone aware of this issue having been tested, on appeal or in litigation post 1 January 2021? Or is everyone being terribly British and waiting patiently for strategic solutions to be found to all of these neutrality issues before their reserved matters and pre-commencement conditions can be signed off? I suspect that some permissions will expire in the meantime. In my view this is not acceptable, or warranted, but am I a voice in the wilderness here?”
Well, the point now has been tested.
In CG Fry, outline planning permission had been granted for a residential development of 650 houses, community and commercial uses, a primary school and associated infrastructure. Reserved matters approval was secured. Natural England then published its advice to Somerset authorities on development in the Somerset Levels and Moors Ramsar Site, advising that greater scrutiny was required of plans and projects that would result in increased nutrient loads which may have an effect on SPAs, SACs and sites designated under the Ramsar Convention. CG Fry then sought to discharge various pre-commencement conditions but the Council withheld approval on the basis that an appropriate assessment was required before the conditions could be discharged. CG Fry appealed and the inspector dismissed the appeal. To quote from the judgment:
“He determined that it was legitimate to apply paragraph 181 of the NPPF to give the Ramsar site the same protection in all respects as a European site under the Habitats Regulations 2017. That was because the discharge of the conditions would be an authorising act, as part of the wider consent process, that would allow the realisation of potential effects on the Ramsar site which the Natural England advice note sought to manage. Considering the overarching nature of paragraph 181, this applied regardless of the specific subject matter of the conditions themselves: DL24-26. The Inspector considered that the grant of outline planning permission and reserved matters approval did not have an effect on the scope of any necessary appropriate assessment; the validity of the planning permission was not in question: DL41.
The inspector then determined that the requirement for an appropriate assessment in the Habitats Regulations 2017 applied to the discharge of conditions stage. He rejected the claimant’s argument that inclusion of specific provisions relating to the grant of planning permission, including outline planning permission, at regulation 70 of the Habitats Regulations 2017, did not diminish the applicability of regulation 63, which was simply a sweep up provision: DL44. Even adopting the claimant’s approach that the permission in relation to “consent, permission or other authorisation” in regulation 63 is the planning permission referred to in regulation 70, the concept of “other authorisation” was a broad one. The claimant’s approach would create loopholes counter to a purposive approach to the Habitats Regulations 2017: DL45-47.
As the competent authority, the Inspector said, he was unable to carry out the necessary appropriate assessment to agree the conditions: DL71. He said that he had considered the other relevant planning considerations, in particular the impact on housing delivery: DL72, 74. However, the unfulfilled requirement for an appropriate assessment was an issue of material significance: DL77. In other words he conducted the balancing exercise and concluded that in this case the delay in housing delivery was outweighed by the need to protect the Ramsar site.”
“The claimant’s case in general terms is that the effect of additional phosphate loading resulting from its proposed development was not a material consideration to the determination of the conditions at issue in the case. It was legally irrelevant because it fell outside the specific parameters of what the outline planning permission and the reserved matters approval had left over for consideration under these conditions. The material for the discharge of these conditions was satisfactory, and the only thing preventing their discharge was whether an appropriate assessment of the impact of phase 3 of the development on the Ramsar site from additional phosphate loading was required. There was no nexus between the conditions in relation to phosphates, even with the condition relating to waste water. Nor, on the claimant’s case, does the combination the Habitats Regulations 2017 and paragraph 181 of NPPF change that. The Inspector was wrong in his analysis and conclusions.”
“In broad terms ground 1 is firstly, that the Inspector wrongly construed the Habitats Regulations 2017 and should not have applied regulation 63, as he did, to the discharge of conditions on a reserved matters approval. Mr Banner KC contended that regulation 70 was the relevant provision, and it is confined to planning (including outline planning) permission.”
The judge rejected the ground: “While on a strict reading of the Habitats Regulations 2017 the assessment provisions of regulation 63 do not cover the discharge of conditions, in my view they do apply as a result of firstly, article 6(3) of the Habitats Directive, secondly, a purposive interpretation of their provisions and thirdly, case law binding on me”
“ Mr Banner contended that the Habitats Directive had no status in the UK legal system, except through regulation 9(3) of the Habitats Regulations 2017. The provisions of the European Union (Withdrawal) Act 2018 do not take the argument any further, he submitted, because there is no CJEU pre-existing case law which interprets the Habitats Directive as imposing a requirement to conduct an appropriate assessment at subsequent stages, such as the discharge of conditions on a reserved matters approval. He submitted that Harris concerned whether the claimed obligation under article 6(2) had been recognised by the court before Brexit, and it had. By contrast there is no CJEU or domestic case preceding exit day which supports the view that article 6(3) of the Habitats Directive can be relied upon to impose a requirement for an appropriate assessment at the discharge of conditions stage. Unlike Harris section 4(2)(b) of the Withdrawal Act 2018 is not engaged in this case given the absence of relevant pre-exit case-law.
In my view article 6(3) of the Habitats Directive continues to have effect in domestic law as a result of section 4(2)(b). Johnson J explained in Harris that the requirements of article 6(3) were accepted as binding by the CJEU in Waddenzee: [90]. Articles 6(2) and 6(3) of the Habitats Directive are closely related, so as to be “of a kind” with one another for the purposes of section 4: [91]. The demands of section 4(2)(b) are therefore met. The section is explicit that the recognition in the case law does not have to be by way of the ratio of a case “(whether or not as an essential part of the decision in the case)“.
“Consequently, the requirements of article 6(3) of the Habitats Directive remain part of UK law. That article requires that the competent authorities should not agree a project until an appropriate assessment has been undertaken and it shows that it will not adversely affect the integrity of a site. A planning consent is part of agreeing a project when it is necessary to implement a development. In this case the discharge of pre-commencement conditions was a necessary step in the implementation of the development. An appropriate assessment had not been undertaken up to that point, so consequently the Inspector determined that he could not discharge the conditions prior to one being undertaken. His conclusion was consistent with article 6(3) of the Habitats Directive.”
“Secondly, the Habitats Regulations 2017 demand a purposive interpretation so that the appropriate assessment provisions of regulation 63 apply to a subsequent consent stage including reserved matters applications and the discharge of conditions. A broad and purposive interpretation of the regulations flows from the strict precautionary approach which the CJEU has adopted to the assessment provisions of the Habitats Directive…”
“In my view Wingfield and Swire are authority for the proposition that an appropriate assessment can apply at the reserved matters or discharge of condition stage even if there has been a grant of outline planning permission where the subsequent approval is the implementing decision. There is support, as Lang J found in Wingfield, in the case law concerning the EIA multi-stage consenting procedure such as Barker. There, as we saw, Lord Hope recognised that a material change in circumstances could require an assessment at the reserved matters stage. It will be recalled that in Friends of the Irish Environment Ltd the CJEU stated that the meaning of “development consent” was relevant to defining the equivalent term “agree” in the Habitats Directive. All this is retained case law under the Withdrawal Act 2018 concerning the interpretation of the Habitats Directive and the Habitats Regulations 2017. That the facts in Wingfield and Swire were different is no basis for undermining the principle they established. The common law system would not survive if this were the case, since there will always be a variation, even if slight, in the facts of later cases. That does not preclude the continued application of principle.”
“The upshot is that the Habitats Directive and Habitats Regulations 2017 mandate that an appropriate assessment be undertaken before a project is consented. That is irrespective of whatever stage the process has reached according to UK planning law. The basal fact in this case is that neither at the permission, reserved matters, or conditions discharge stage has there has been an appropriate assessment. Application of the Habitats Directive and a purposive approach to the interpretation of the Habitats Regulations 2017 require the application of the assessment provisions to the discharge of conditions. The strict precautionary approach required would be undermined if they were limited to the initial – the permission – stage of a multi-stage process.”
Ground 2: “For the claimant Mr Banner contended that paragraph 181 of the NPPF did not enable the Inspector to take into account considerations which were legally irrelevant to those conditions.” [Paragraph 181 states that Ramsar sites should be given the same protection as SPAs and SACs].
The judge: “The impacts on the Somerset Levels and Moors Ramsar Site and paragraph 181 of the NPPF cannot be said to be irrelevant considerations in this development. The issue is the read-across of the Habitats Regulations 2017 to Ramsar sites as provided by the NPPF in circumstances where the Council’s shadow appropriate assessment shows that if the project if permitted it will cause harm to the Ramsar site.”
Ground 3: “Mr Banner submitted that even if regulation 63 applies to the discharge of conditions, it ought to be interpreted in such a way that the scope of the appropriate assessment reflects the scope of the conditions being considered. Thus, for example, in the context of an application to discharge a condition relating to root protection zones for trees, an appropriate assessment would concern any effects on site integrity arising from the range of choices the decision-maker has in relation to root protection zones, given the permission granted (and any conditions already discharged). The appropriate assessment would not consider the effects of the scheme as a whole on the habitat in question.”
The judge: “Regulation 63 requires an appropriate assessment to consider the implications of the project, not the implications of the part of the project to which the consent relates. […] As Mr Wilcox for the Council put it, the thing which is to be the subject of the appropriate assessment is the thing which will be permitted by the authorisation, so that where the decision is the final stage in granting authorisation for a development, it is the development which is to be assessed.”
It was a certainly an issue to be tested and, whilst Richard Moules and Nick Grant (for the Government) and Luke Wilcox (for Somerset Council) may have been on the winning side, well done to Charlie Banner KC and Ashley Bowes for arguing it (and to CG Fry for being prepared to put its head above the parapet). I hope Charlie won’t mind me quoting his subsequent LinkedIn post in its entirety:
“Judgment in CG Fry has been delivered this morning . Key headlines:
1) The Court agreed with the Claimant that on a natural and ordinary reading of the Habitats Regulations they do not require appropriate assessment at the reserved matters or discharge of conditions stages
2) However, CJEU case law to the effect that the EIA Directive’s requirements apply at the reserved matters stage was to be read across to the Habitats context and to discharge of non-RM conditions, as well as first instance domestic case-law upholding the legality of a *voluntary* AA at reserved matters stage.
3) This is an EU “obligation… identified by a court” pre-Brexit which is preserved by the EU Withdrawal Act 2018 ss4&6, because the direct effect of Article 6(3) of the Habitats Directive had been recognised by the CJEU pre-Brexit.
4) Therefore the Habitats Directive continues to apply directly and overcomes the natural and ordinary meaning of the Regulations.
The judge has indicated he is minded to grant permission to appeal his judgment and the parties are discussing the potential for a leapfrog appeal to the Supreme Court.
The judgment will present Department for Levelling Up, Housing and Communities with some challenges for any future legislative solution for the nutrients issue given the Court’s approach to considering whether s4 of the Withdrawal Act preserves post-Brexit the force of EU “obligations… of a kind recognised by a court “ pre Brexit. The Claimant said that this meant the Courts had to have recognised an obligation for AA at discharge of conditions stage, which they hadn’t. The judgment suggests that the relevant obligation is article 6(3) generally. The potential effect of this is that it will be open to anyone to apply to court to set aside legislation on the basis it is contrary to article 6(3) *even if based upon an interpretation of article 6(3) that hasn’t previously been made by the Courts*
The Home Builders Federation’s evidence to court was that 44,000 already consented homes in England are currently blocked because of this issue. The Land Promoters and Developers Federation has also been very active on this issue.
Watch this space!”
A final couple of wry comments from me:
If anyone voted for Brexit thinking that these sorts of problems would become a thing of the past, more fool them.
Let’s not forget that the root of much of the issues over neutrality – whether in relation to nutrients and water abstraction – is the appalling lack of investment on the part of the privatised water companies.
As the judge says at the beginning of his judgment: “In broad terms, this issue relates to the phosphate loading of protected water habitats, leading to eutrophication. This is caused by reasons including agricultural practices and under-investment in water infrastructure. There is a risk of the problem being exacerbated by water generated by new developments which contain phosphates, principally from foul water. The Home Builders Federation states that, due to the unavailability of mitigation options, this issue is holding up the building of no fewer than 44,000 homes in England which already have planning permission.” (my emboldening)
Until the CG Fry judgment landed this morning, I had been intending to pull together some wider thoughts on the implications for planning and the environment of the poor state of our privatised water industry, provoked by articles such as UK government looks at nationalising Thames Water as crisis deepens (FT, 28 June 2023) where delayed housebuilding, aka providing people with homes, is just part of the collateral damage.
The Government appears to be in negotiation with Tory MPs (46 of them at least) who may be prepared to wreck the Levelling-up and Regeneration Bill unless it includes a provision abolishing housebuilding targets for local authorities and abolishing the policy in the NPPF as to the maintenance of a five years’ supply of housing land. No doubt this will end up with some fudged solution adding further (1) uncertainty, (2) complexity and (3) hurdles in the way of housing provision.
But in another part of the forest, assuming they will overcome that local difficulty (aka huge chasm), the Government has brought forward a further set of amendments to the Bill to seek to address the nutrient neutrality problem which has amounted to a de facto veto on housebuilding in many areas of the country (see eg my 23 July 2022 blog post Neutrality: Government Clambers Off The Fence).
A new legal duty on water companies in England to upgrade wastewater treatment works by 2030 in ‘nutrient neutrality’ areas to the highest achievable technological levels.
A new Nutrient Mitigation Scheme established by Natural England, helping wildlife and boosting access to nature by investing in projects like new and expanded wetlands and woodlands. This will allow local planning authorities to grant planning permission for new developments in areas with nutrient pollution issues, providing for the development of sustainable new homes and ensuring building can go ahead. Defra and DLUHC will provide funding to pump prime the scheme.”
“The new legal duty on water and sewerage companies in England to upgrade certain wastewater plants will be introduced via a Government amendment to the Levelling Up and Regeneration Bill. We want these improvements to be factored in for the purposes of a Habitats Regulation Assessment.”
The nutrient mitigation scheme “will be open to all developers, with priority given to smaller builders who are most affected. Developers can also continue to put their own mitigation schemes in place should they choose. Natural England will work with, not crowd out, new and existing private providers and markets for nutrient offsets wherever they exist.
The scheme is due to open in the Autumn. All affected areas can continue to access practical support from the government and Natural England in meeting nutrient neutrality requirements. Natural England will deliver the scheme by establishing an ‘Accelerator Unit’, with the support of Defra, DLUHC, the Environment Agency and Homes England.
This announcement will support the delivery of the tens of thousands of homes currently in the planning system, by significantly reducing the cost of mitigation requirements. The mitigation scheme will make delivering those requirements much easier for developers.”
The possible bad news? Not so much bad news but an inspector’s appeal decision letter which confirms that the Habitats Regulations’ assessment requirements do not just apply when an application for planning permission is determined but, if an assessment was not carried out at that stage, at reserved matters/ conditions discharge stage. This is of course one of the huge current frustrations.
The decision letter, dated 24 November 2022, is here and is summarised by Landmark Chambers here.
Charlie Banner KC was for the appellant and his submissions were in line with an opinion previously provided for the HBF and widely circulated. The issues are not straight-forward and we wait to see whether the question will now come before the courts.
Short blog post this week – too busy, and to0 much football to watch.
“If passed, REULRR will effectively sweep away any and all EU laws that the Government hasn’t actively decided to keep.
It does this by:
Repealing EU derived laws by the end of 2023. The government will be able to extend that deadline to 23 June 2026 (the tenth anniversary of the Brexit referendum) but can’t further extend it.
Repealing the principle of supremacy of EU law by the end of 2023. Currently, any EU decision reached before 1 January 2021 is binding on UK courts unless the government departs from it. However, this bill will subjugate all EU law in favour of UK law by default.
Repealing directly effective EU law rights and obligations in UK law by the end of 2023; and
Establishing a new priority rule requiring retained direct EU legislation to be interpreted and applied consistently with domestic legislation.”
She discussed this further at our clubhouse Planning Law Unplanned session last week on the Growth Plan, which Sam Stafford has now trimmed neatly into a 50 Shades of Planning podcast:
You will remember that the European Union Withdrawal Act 2018 had the effect of retaining, post Brexit, EU-derived domestic legislation such as the regulations in relation to environmental impact assessment, strategic environmental impact and conservation of habitats, leaving it to Parliament in due course to determine the extent to which the legislation should subsequently be repealed or amended.
”The REUL [retained EU-derived law] framework established by EUWA, however, was not intended to be maintained indefinitely on the UK statute book and now the Government is in the position to ensure REUL can be revoked, replaced, restated, updated and removed or amended to reduce burdens.”
The Bill now places a firm deadline on that process:
“The Retained EU Law (Revocation and Reform) Bill facilitates the amendment, repeal and replacement of REUL by the end of 2023, and assimilates REUL remaining in force after that date by removing the special EU law features attached to it.”
The end of 2023 deadline can only be extended, to 23 June 2026 “should a lack of parliamentary time, or external factors, hinder progress towards reform of retained EU law prior to the 2023 sunset date.”
Is this of concern?
In short, yes of course. It may be said that the Government is committed to a principle of non-regression from current environmental standards, but given the current political pinball and the lack of relevant ministers with any real experience of the sheer complexity and nuances of what they are dealing with, frankly anything is possible. Campaign groups are certainly on edge: Brexit freedoms bill’ could abolish all pesticide protections, campaigners say (Guardian, 29 September 2022).
To an extent, at a high level, the principle of non-regression is built into the trade and co-operation agreement between the UK and EU which was signed on 30 December 2020 and came into force on 1 May 2021. The UK gave various, at least theoretically, binding commitments in the agreement as to non-regression from environmental levels of protection, which I describe in my 27 December 2020 blog post Brexit & Planning: An Update.
There are also generalised commitments within the Environment Act 2021 (which of course Parliament is always of course at liberty to amend or repeal as it chooses). The Government consulted in May 2022 in relation to its draft environmental principles statement. The statement has not yet been finalised and there is not yet any duty upon ministers to take it into account in their policy making. This may not be until summer 2023 at the earliest! The Office for Environmental Protection (a body established pursuant to the 2021 Act) has criticised the statement for “a relatively limited degree of ambition”. The OEP has similarly criticised as unambitious the Government’s draft environmental targets, also consulted upon pursuant to the 2021 Act.
As against these inchoate commitments to environmental standards, what is going to give in the face of a Government which, according to its Growth Plan, will be “disapplying legacy EU red tape where appropriate” in the investment zones it is proposing, and which proposes a Planning and Infrastructure Bill which will be:
“reducing the burden of environmental assessments
reducing bureaucracy in the consultation process
reforming habitats and species regulations”?
Genuine improvements to the processes are certainly possible. But do we trust the Government to strike an appropriate balance, hurtling towards a self-imposed December 2023 deadline and (at the latest) 2024 general election? In the coming year, most of our environmental legislation, and planning legislation to the extent that it is intertwined, will need to be reviewed, line by line, and, given that most of it is in the form of secondary legislation (and the sheer lack of time – after all the REULRR Bill covers all EU derived legislation!), there will be relatively limited Parliamentary scrutiny of that process. Even with the best of intentions, how is this timescale even going to be possible if we are to avoid a complete bodge-up? We have been treading (often polluted) water for so long and we still have no sense whatsoever of what the long trumpeted “outcomes focused” approach will look like in practice – eg see my 2 April 2022 blog post Is the Nature Recovery Green Paper The Answer? (& If So What Was The Question?)
On a slightly different, although possibly related, note….
At 6 pm on Wednesday 5 October 2022 we will be having a discussion on Clubhouse with barrister Hashi Mohamed, around the themes of his FT article The housing crisis sits at the centre of Britain’s ills (1 October 2022, behind paywall) and his recent book A home of one’s own, a trenchant and personal look at the politics of planning and housing.
Join via this link. If you use the link to RSVP in advance (you don’t have to) you’ll get a reminder when we start – and we can get a feel for likely numbers.
What is needed to calm the nerves all round – on planning, on housing, on environmental protection – is detail. When are we going to get it? HM Treasury announced on 26 September 2022:
“Cabinet Ministers will announce further supply side growth measures in October and early November, including changes to the planning system, business regulations, childcare, immigration, agricultural productivity, and digital infrastructure.”
Always just another month or so to wait, every time.
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.
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.
I’ll turn in a moment to the Court of Appeal’s 15 July 2022 ruling on nutrient neutrality in R (Wyatt) v Fareham Borough Council and Natural England.
But first, on political neutrality. I can’t say that there is a political party at the moment I could support. Is that neutrality? It’s certainly depressing.
This week, in an effort not to waste energy when most of us have no voice in the selection process, I haven’t been tweeting about all the rights and wrongs of the prime ministerial candidates. One of my better decisions. However, it is frustrating to see the usual 2022 Tory comfort food being served up on a plate:
“A Labour solution to housing would concrete over the whole country and leave us with socialist homes, that are owned by the state, that we can rent on a temporary basis” (Tom Tugendhat)
Net zero = “well-meaning regulations” clogging up economic growth (Kemi Badenoch)
“low planning zones: new investment zones around key parts of the United Kingdom with much clearer planning rules so people can get on with building straight away to generate those jobs and opportunities.” (Liz Truss) – possibly a reference to the libertarian “Charter Cities” idea that seems to be gaining some traction in right wing conservative circles – Sunak and Mordaunt being other potential adherents. (For more on charter cities see for instance Ann Moody’s 6 June 2022 piece in Yorkshire Bylines, Brexit benefits: From Honduras to Hull, via Hong Kong).
Is any of this food, no doubt comforting for some, good for you? Are we even able to ask such a “woke” question?
Deregulation is of course an ever-present theme – Back To (Planning For) The Future, or what. Of course it will end badly, with botched plans and broken promises.
Meanwhile, in the real world, the inability of the Government and its agencies to arrive at any timely solutions is still the reason why Natural England’s approach to nutrient, water and recreational impact neutrality is such a blocker to house building in so many areas of the country. Water companies are failing to meet their obligations (see the Environment Agency’s no holds barred 12 July 2022 report Water and sewerage companies in England: environmental performance report 2021), farmers rail against existing restrictions on fertiliser use, off-site mitigation schemes are slow to gain traction and local planning authorities proceed (or rather don’t proceed) in a state of extreme caution.
Lichfields modelled five scenarios which estimate different levels of reduction in housebuilding as a result of the nutrients issue, as follows:
1 A 10% reduction in housebuilding;
2 A 25% reduction in housebuilding;
3 A 50% reduction in housebuilding; and,
4 The non-delivery of an estimated c.53,000-60,000 new homes across the (at that point) seven catchment areas.
By way of example:
“A 10% or 50% reduction in the number houses being delivered across the seven catchment areas would equate to a reduction in between 2,540 and 12,700 new homes being built each year. This would have the potential to result in:
1 An annual reduction of between £441.8 million and £2.2 billion economic output produced by builders, their contractors and suppliers;
2 A reduced opportunity to create or support between 8,100 and 40,560, indirect, and induced jobs per annum;
3 A loss of between £2.9 million and £14.7 million in potential Council Tax revenue per annum;
4 A loss of between £17.0 million and £84.9 million in New Homes Bonus payments each year;
5 A missed opportunity to invest between £12.0 million and £59.8 million in essential infrastructure collected from Section 106 and CIL contributions per annum; and,
6 The loss of affordable housing delivery valued at between £48.8 million and £244.2 million per annum.”
This examines whether Natural England’s assumption in its guidance to date of an average occupancy of each new home by 2.4 people is too high, leading to an over-estimate as to the likely effects arising from new development:
“Multiple strands of analysis all point to the fact that the nutrient calculators that have been applied throughout the seven catchments over-estimate significantly the likely additional population that would result from the development of new housing. This will tend to over-estimate the nutrient load associated with new development and expect levels of mitigation that may not be necessary.
By way of solution, we recommend that the nutrient calculator should be amended to adopt a more sensitive assessment of population change. This should reflect the level of households/dwellings associated with a net zero population growth scenario for which no mitigation would be required. Mitigation associated with the provision of new housing to accommodate population growth should be based on the net average household size figure; this will be lower than average household size to take account of the fact that the resident population in the existing stock will be falling going forward.”
The HBF has also continued to bang the drum for a more sensible approach to reserved matters applications and applications for discharge of pre-commencement conditions – all delayed in affected areas. The HBF’s James Stevens said this recently in a LinkedIn post:
“Based on an HBF survey of members 40% of the 38,365 homes delayed in the 42 local authorities newly affected by this issue (since 16 March 2022) are caught at reserved matters and discharge of conditions stages. It is likely that a comparable number of homes are at the same stages among the 60,000 homes delayed in the 32 local authorities initially affected by this issue (for many since 22 July 2019).”
His post included a link to Charlie Banner QC’s updated opinion dated 6 June 2022, which articulates a legal case for regulation 63 of the Conservation of Habitats Regulations not applying at these stages but I’m not aware of any authorities yet adopting that position. We await the inevitable appeal decisions.
I referred in my 26 March 2022 blog post to Jay J’s first instance ruling in R (Wyatt) v Fareham Borough Council and Natural England, where a claimant failed to persuade the court that Natural England’s previous 2020 advice on achieving nutrient neutrality in the Solent region was, in the light of the precautionary approach, in fact not stringent enough.
The claimant secured permission to appeal to the Court of Appeal. If the court had overturned that ruling that would have put us in an even more difficult place but the court (Lindblom LJ, Singh LJ and Males LJ) dismissed the appeal on 15 July 2022. A bailii transcript is not available but barrister Conor Fegan (who acted for the claimant, assisting Greg Jones QC) has posted a link to the judgment on LinkedIn and, also on LinkedIn, David Elvin QC (who appeared for Natural England, leading Luke Wilcox – Tim Mould appeared for Fareham) has posted an excellent summary. Because it’s a hot Saturday afternoon I’m not embarking on my own summary – please read David’s!
After quite a gap we have another clubhouse Planning Law Unplanned session arranged for 6 pm on 19 July 2022. We were originally going to look at whether or not it is correct that LURB represents a “power grab” by Government, as postulated by some. But in the light of events, we will extend the remit of the discussion to a neutral (of course) evaluation of what the changes within DLUHC and the prospective change of prime minister are likely to mean more fundamentally for our planning system and any potential reform. The speakers so far include Steve Quartermain CBE and Killian Garvey but I’d love to hear your views. Join here.
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
SIMONICITY 