“If a tree falls in a forest and no one is around to hear it, does it make a sound?”
Maybe the biggest news this week wasn’t the replacement of Robert Jenrick by Michael Gove as Secretary of State for Housing, Communities and Local Government and the consequent likely pause of the still-paused-anyway planning law reforms.
Maybe it was the difficulties which the Government is having with its Environment Bill (original progenitor one M Gove). Aspirations of enactment by the time of November’s COP26 are surely fading fast in the light of a series of defeats for the Government at the report stage of the Bill in the House of Lords. On Monday (13 September 2021) it was already being reported in a Green Alliance blog post, on the back of a Daily Telegraph story, that the Government was reluctant to accept the amendments which had been passed which could ultimately lead to the Bill entering into a period of ping pong (less fun than it sounds) between the Lords and Commons.
– making interim targets for nature, air, water and waste legally binding;
– requiring the Government to make a formal declaration of a biodiversity and climate emergency;
– a more ambitious approach to targets in air pollution;
– making soil health a priority;
– removing exemptions for the Treasury and Ministry of Defence from taking into account environmental principles in policy making.
However, on the day of the reshuffle, 15 September 2021 the Lords continued its scrutiny of the Bill and inflicted a further four defeats by way of voting for amendments which in various ways seek to introduce greater environmental protections. Two of the issues are intertwined with matters to do with planning and development and I thought I would give them a bit of airtime – after all, these days can you be a planning lawyer without being an environmental lawyer? And surely DEFRA and MHCLG are going to have to work with each other in ever closer ways.
Habitats Regulations: limits on powers to amend
Baroness Young, chair of the Woodland Trust and former chief executive of the Environment Agency, moved an amendment to ensure “that powers to amend the Habitats Regulations may only be used for the purposes of environmental improvement following consultation. It ensures that the level of environmental protection that must be maintained includes protection for important habitats, sites and species as well as overall environmental protection”
It was passed 201 to 186.
The amendment provides that the Secretary of State may only amend the regulations
“for the purposes of—
(a) securing compliance with an international environmental obligation, or
(b) contributing to the favourable conservation status of species or habitats or the favourable condition of protected sites;
(c) if the regulations do not reduce the level of protection provided by the Habitats Regulations, including protection for protected species, habitats or sites; and
(i) following public consultation and consultation with—
(ii) the Office for Environmental Protection,
(iii) Natural England,
(iv) the Joint Nature Conservation Committee, and
(v) other relevant expert bodies.”
Duty to implement an enhanced protection standard for ancient woodland in England
Baroness Young moved an amendment “intended to address the more than 800 ancient woodlands in England that are currently threatened by development. As a large number of these threats result from indirect effects of development next to ancient woodland, these changes will improve the weight afforded to protecting these irreplaceable habitats in planning policy.”
It was passed 193 to 189.
The amendment introduces the following additional clause into the Bill:
(1) The Government must implement an enhanced protection standard for ancient woodland, hereafter referred to as the “ancient woodland standard” in England as set out in subsections (2), (3) and (4) and this must have immediate effect.
(2) The ancient woodland standard must set out the steps necessary to prevent further loss of ancient woodland in England.
(3) The ancient woodland standard commits the Government to adopting a Standard of protection which must be a requirement for all companies, persons or organisations involved in developments affecting ancient woodlands in England.
(4) This standard must be that—
(a) any development that causes direct loss to ancient woodland or ancient woodland and ancient and veteran trees must be refused unless there are wholly exceptional reasons and, in addition, a suitable compensation strategy must be in place prior to development commencing,
(b) any development adjacent to ancient woodland must incorporate a minimum 50-metre buffer to provide protection, reduce indirect damage and provide space for natural regeneration,
(c) any ancient or veteran trees must be retained within a development site, including a root protection area and appropriate buffer zone.
(5) This buffer zone must be whichever is greater of—
(a) an area which is a radius of 15 times the diameter of the tree with no cap, or
(b) 5 metres beyond the crown.”
The debate is here and Parliament’s summary of the House of Lords report stage is here.
(Incidentally, Ruth Keating (39 Essex Chambers) gave a very clear summary of the Environment Bill at today’s (virtual) Joint Planning Law Conference. Watch out for the paper in due course.)
As a further indication of how environmental matters are going to take centre stage in coming months, Duncan Field brought to my attention yesterday that Lord Frost made a statement to the House of Lords (16 September 2021) as to the Government’s approach in relation to various areas of retained EU law. A supporting paper, Brexit opportunities: regulatory reforms contains references which may be of interest to those in the planning and environmental areas:
“Environmental Licencing [sic] and Permitting – Defra is continuing to rationalise the existing Environmental licensing and permitting (ELP) regimes so they are more streamlined and easier for businesses and users to navigate, whilst maintaining and even enhancing environmental protections.
Promote a flexible, market-based trading system for biodiversity offset credits – Biodiversity Net Gain (BNG) is a critical part of Defra’s strategy for enhancing the natural environment and promoting sustainable growth. Defra will shortly be publishing a consultation on our plans for implementing BNG. This consultation will include proposals for a market-based approach to delivery of biodiversity offset units.”
That latter is interesting in the context of the biodiversity net gain provisions within the Environment Bill, which do not currently refer explicitly to any notion of a structured “market-based trading system for biodiversity offset credits”.
Keep your ears open is all I’m saying…
Simon Ricketts, 17 September 2021
Personal views, et cetera
And on the theme of ears, do join our clubhouse Planning Law Unplanned event at 6pm this Tuesday 21 September 2021, whether to listen or participate. We will be returning to the big news story and associated question – “ALL SYSTEMS GOVE! What to expect from our new Secretary of State?”. We have a planoply of leading commentators lined up to give their views including Catriona Riddell, Matthew Spry, Zack Simons, Wyn Evans and Nick Cuff as well as our usual planel. Link to app here.
Thanks to my colleague Stephanie Bruce-Smith for some background research. All errors mine.
This post collects together in one place some of the recent planning, environmental and compulsory purchase litigation in relation to the High Speed Two rail project.
R (Keir) v Natural England (16 April 2021, Lang J; further hearing before Holgate J, 23 April 2021, judgment reserved)
This is the interim injunction granted by Lang J preventing HS2 and its contractors from varying out works at Jones’ Hill Wood, Buckinghamshire, until either the disposal of the claim or a further order.
The claim itself has Natural England as the defendant and seeks to challenge its grant of a licence under the Conservation of Habitats Regulations 2017 in relation to works that may disturb a protected species of bat.
The question as to whether the injunction should be maintained came back to court yesterday, 23 April, before Holgate J, as well as whether permission should be granted in the claim itself, and he has reserved judgment until 2pm on 26 April.
Secretary of State for Transport v Curzon Park Limited (Court of Appeal hearing, 21 and 22 April 2021, judgment reserved)
This was an appeal by the Secretary of State for Transport against a ruling by the Upper Tribunal on 23 January 2020. My Town Legal colleagues Raj Gupta and Paul Arnett have been acting for the first respondent, landowner Curzon Park Limited, instructing James Pereira QC and Caroline Daly. Thank you Paul for this summary:
The case concerns certificates of appropriate alternative development (‘CAADs’) under the Land Compensation Act 1961. A CAAD is a means of applying to the local planning authority to seek a determination as to what the land could have been used for if the CPO scheme did not exist. Its purpose it to identify every description of development for which planning permission could reasonably have been expected to be granted on the valuation date if the land had not been compulsorily purchased. Importantly, subject to a right of appeal, the grant of a CAAD conclusively establishes that the development is what is known as ‘appropriate alternative development’. This is significant as:
• When compensation is assessed it must be assumed that planning permission for that development(s) in the CAAD either was in force at the valuation date or would with certainty be in force at some future date and
• Following reforms in the Localism Act 2001, where there is, at the valuation date, a reasonable expectation of a particular planning permission being granted (disregarding the CPO scheme and CPO) contained in a CAAD it is assumed that the planning permission is in force which converts the reasonable expectation into a certainty.
There are four adjoining sites, each compulsorily acquired by HS2 for the purposes of constructing the Curzon Street HS2 station terminus at Cuzon Street Birmingham – four different landowners and four different valuation dates (i.e. vesting dates under the GVD process). Each landowner applied for a CAAD for mixed use development including purpose-build student accommodation (PBSA). In the real world, the cumulative effects of the proposed adjoining developments (e.g. including but not limited to the proposed quantum and need for PBSA in light of a PBSA need in the local plan) would have been a material planning consideration. However, Birmingham City Council considered each CAAD application in isolation. The Secretary of State argued that they should have considered the other CAAD applications as notional planning applications and, therefore, as material considerations which would have been very likely to result in CAADs issued for smaller scale mixed-used development being issued leading to a lower total compensation award and bill for HS2. The preliminary legal issue to be determined by the Upper Tribunal and now the Court of Appeal is:
‘Whether, and if so how, in determining an application for a certificate of appropriate alternative development under section 17 LCA 1961 (CAAD) the decision-maker in determining the development for which planning permission could reasonably have been expected to be granted for the purposes of section 14 LCA 1961 may take into account the development of other land where such development is proposed as appropriate alternative development in other CAAD applications made or determined arising from the compulsory acquisition of land for the same underlying scheme’.
The Upper Tribunal had rejected the landowners’ argument that the scheme cancellation assumption (i.e. disregarding the CPO scheme) under the Land Compensation Act 1961 required CAAD applications on other sites to be disregarded. However, critically, the Tribunal agreed with the landowners’ that CAAD applications were not a material planning consideration and that there was no statutory basis for treating them as notional planning applications as the Secretary of State has argued. The Tribunal also disagreed with the Secretary of State that the landowners’ interpretation of the statutory scheme would lead to excessive compensation pointing out that the landowners’ ability to develop their own land in their own interests was taken away when their land was safeguarded for HS2 and from November 2013 when the HS2 scheme was launched until 2018 when the land interests were finally acquired by HS2 any planning permissions for these sites would have been determined in the shadow of the HS2 scheme and safeguarding of the land. The Secretary of State appealed the Upper Tribunal decision and the Court of Appeal granted permission to appeal in July 2020 noting that the appeal raises an important point on the principle of equivalence (i.e. the principle underpinning the CPO Compensation Code) that a landowner should be no worse off but no better off in financial terms after the acquisition than they were before) which may have widespread consequences for the cost of major infrastructure projects.
A judgment from the Court of Appeal (Lewison LJ, Lindblom LJ and Moylan LJ) is expected in the next month or so.
This was an appeal against the refusal by HS2 Limited to disclose, pursuant to the Environmental Information Regulations 2004, information as to the potential effect of its works on chalk aquifers in the Colne Valley. The information requested was as follows:
“What risk assessments have taken place, of the potential increased risk to controlled waters as a result of imminent works by HS2 contractors along the Newyears Green bourne and surrounding wetland?
Are any of the risk assessments independent from the developers (HS2) and where are the risk assessment (sic) accessible to the public?”
By the time of the hearing before the First Tier Tribunal, three reports had been disclosed, redacted. The Tribunal summarised the issues before it as follows:
“(1) whether HS2 correctly identified the three reports as being the environmental information which Ms Green requested and whether there was further material held which came within the request;
(2) whether at the time of Ms Green’s request the three reports were “still in the course of completion” or comprised “unfinished documents” and, if so, whether the public interest in maintaining the regulation 12(4)(d) exception outweighed that in disclosure;
(3) whether disclosure of those parts of the three reports which have been redacted in reliance on regulation 12(5)(a) would have adversely affected “public safety” and, if so, whether the public interest in maintaining the regulation 12(5)(a) exception outweighed the public interest in their disclosure.”
The Tribunal found, expressing its reasoning in strong terms, that the public interest in disclosure outweighed the public interest in maintaining any exemption.
“The reports in question in this case concern a major infrastructure project which gives rise to substantial and legitimate environmental concerns. They specifically relate to the risks of contamination to the drinking water supplied to up to 3.2 million people resulting from the construction of the HS2 line. This is clearly environmental information of a fundamental nature of great public interest.”
HS2 appeared to be concerned that “if the versions of the reports current in January 2019 were made public they “… could have been used to try and impact work undertaken in finalising the information”.
“It seems to us that such an approach almost entirely negates the possibility of the public having any input on the decision-making process in this kind of case, which goes against a large part of the reason for allowing public access to environmental information.
The suggestion that public officials concerned in making enquiries and freely discussing options to mitigate environmental problems might be discouraged or undermined by early disclosure of their work seems to us rather fanciful and was not supported by any kind of evidence; the case is not comparable in our view to that of senior officials indulging in “blue sky” thinking about policy options. We accept that the material is “highly technical” but we cannot see why a lack of understanding on the part of the public would have any negative impact on HS2’s work; if a member of the public or a pressure group wanted to contribute to the debate in a way that was likely to have any effect on the decision-making process they would no doubt have to engage the services of someone like Dr Talbot, who would be able to enter the debate in a well- informed and helpful way.”
“HS2’s second main point, that the Environment Agency will be approving and supervising everything, does not seem to us of great weight. Of course the Environment Agency is there to act in the public interest in relation to the environment but its involvement cannot be any kind of answer to the need for public knowledge of and involvement in environmental decisions. The EA is itself fallible and should be open to scrutiny. If the public could simply entrust everything to it there would be no need for the EIR.
HS2’s third main point is that if inchoate information is released it could be misleading and they would incur unnecessary expense correcting false impressions. We were not presented with any specific evidence or examples to illustrate how this problem might have been encountered in practice. It does not seem to us a very compelling point.”
This was an interim ruling in an application for judicial review, made only nine days previously, of the decision by HS2 Limited to extract the protesters that were occupying the tunnel under Euston Square Gardens and alleging a failure to safely manage Euston Square Gardens in a manner compatible with HS2 Limited’s obligations under the European Convention of Human Rights. It followed a rejection of an application by Mr Maxey for an interim injunction and followed an order made requiring him to cease any further tunnelling activity, to provide certain categories of information to HS2 Limited or others and to leave the tunnel safely, with which he had not complied.
At the hearing, Mr Maxey was renewing his “application for orders requiring (a) the cessation of operations to extract the protesters from the tunnel and (b) to implement an exclusion zone. In addition, the Claimant has expanded the interest relief he seeks to include provision forthwith by the Defendant of (a) oxygen monitoring equipment; (b) a hard-wired communication method; (c) food and drinking water for the Claimant and the protesters; and (d) to make arrangements for the removal of human waste from the tunnel.” He was also seeking to overturn the orders against him.
The judge rejected Mr Maxey’s arguments:
“While I accept that the Defendant is (or at the very least there is a good argument that the Defendant is) currently under a duty to take all reasonable steps to protect those in the tunnel under the site (including the Claimant) from death or serious injury, on the evidence before me there is no realistic prospect of the Court finding that the Defendant is breaching its duty. In my judgment, the claim for interim relief does not meet the first test.
That suffices to dispose of the interim relief application. But if it were necessary to consider the balance of convenience, I would have to bear in mind the strong public interest in permitting a public authority’s decision (here a decision to proceed with the operation and a decision as to the necessary safeguards) to remain in force pending a final hearing of the application for judicial review, so the party applying for interim relief must make out a strong case for the grant of interim relief. The Claimant has not come close to establishing a strong enough case to justify the Court stopping the operations to remove those who are in the tunnel, given the compelling evidence as to how dangerous it is for them to remain there.”
I summarised this case in my 9 January 2021 blog post Judges & Climate Change. It was Chris Packham’s failed challenge to the Government’s decision to continue with the HS2 project following the review carried out by Douglas Oakervee, the grounds considered by the Court of Appeal being “whether the Government erred in law by misunderstanding or ignoring local environmental concerns and failing to examine the environmental effects of HS2 as it ought to have done” and “whether the Government erred in law by failing to take account of the effect of the project on greenhouse gas emissions between now and 2050, in the light of the Government’s obligations under the Paris Agreement and the Climate Change Act 2008”.
This case was heard consecutively with the Packham appeal. It related to Hillingdon’s challenge to the Secretary of State’s decision to allow (against his inspector’s recommendations) an appeal against Hillingdon’s refusal to grant HS2 Limited’s application for approval, under the Act authorising the relevant stage of the HS2 project, of plans and specifications for proposed works associated with the creation of the Colne Valley Viaduct South Embankment wetland habitat ecological mitigation. HS2 Limited had refused to provide Hillingdon with information so that an assessment could be made as to the effect of the proposed works on archaeological remains, HS2 Limited’s position being that it was “under no obligation to furnish such information and evidence. It says that this is because it will, in due course, conduct relevant investigations itself into the potential impact of the development upon any archaeological remains and take all necessary mitigation and modification steps. HS2 Ltd says that it will do this under a guidance document which forms part of its contract with the Secretary of State for Transport which sets out its obligations as the nominated undertaker for the HS2 Project.”
Lang J had upheld the Secretary of State’s decision but this was overturned by the Court of Appeal:
“The key to this case lies in a careful reading of Schedule 17 and the powers and obligations it imposes upon local authorities and upon HS2 Ltd. In our judgment, the duty to perform an assessment of impact, and possible mitigation and modification measures under Schedule 17, has been imposed by Parliament squarely and exclusively upon the local authority. It cannot be circumvented by the contractor taking it upon itself to conduct some non-statutory investigation into impact. We also conclude that the authority is under no duty to process a request for approval from HS2 Ltd unless it is accompanied by evidence and information adequate and sufficient to enable the authority to perform its statutory duty.”
[Subsequent note: Please also see London Borough of Hillingdon v Secretary of State for Transport (Ouseley J, 13 April 2021), “Hillingdon 2” where on the facts Ouseley J reached a different conclusion, holding that an inspector had not acted unlawfully in determining an appeal without information sought by the council from HS2 Limited as to the lorry routes to be used by construction lorries to and from the HS2 construction sites within its area].
This was a judicial review claim brought by the owner of a listed Georgian building near Regents Park. The property was separated by a large retaining wall, built in 1901, from the perimeter of the existing railway. “It rests approximately 17 metres from the front of the property and the drop from the level of the road to the railway below is approximately 10 metres. Unsurprisingly, given that the substrate is London clay, the wall has suffered periodic movement and shows signs of cracking. The Claimant’s expert says that it is “metastable”.”
The claimant was concerned as to the engineering solution arrived at for that section of the route, which was known as the Three Tunnels design. “This judicial review challenge is directed to the safety of the Three Tunnels design in the specific context of the outbound tunnel travelling so close to the base of the retaining wall. It is contended on the back of expert engineering evidence that this aspect of the design has engendered an engineering challenge which is insurmountable: in the result, the design is inherently dangerous. The risk is of catastrophic collapse of the retaining wall, either during the tunnelling works or subsequently, which would if it arose cause at the very least serious damage to the Claimant’s property. Consequently, the Claimant asserts a breach of section 6 of the Human Rights Act 1998 because her rights under Article 8 and A1P1 of the Convention have been violated.”
The judge boiled the questions down to the following:
“has the Claimant demonstrated that she is directly and seriously affected by the implementation of the Three Tunnels design, given the risk of catastrophic collapse identified by Mr Elliff? In my view, that question sub-divides into the following:
(1) should I conclude on all the evidence that the Three Tunnels design is so inherently flawed in the vicinity of the retaining wall that no engineering solution could be found to construct it safely? and
(2) have the Defendants already committed themselves to implement the Three Tunnels design regardless of any further work to be undertaken under Stage 2?
After detailed consideration of expert engineering expert on both sides, the judge rejected the claim.
This was a compulsory purchase case, about whether an owner of four units on the Saltley Business Park in Birmingham, faced with compulsory purchase of one of them, had served counter-notices in time such as to trigger its potential ability to require acquisition of its interests in all four buildings. The court ruled that it had not.
It certainly seems an age since R (HS2 Action Alliance) v Secretary of State for Transport (Supreme Court, 22 January 2014) where in a previous law firm life I acted for the claimant, instructing David Elvin QC and Charlie Banner (now QC). The case concerned whether the publication by the Government of its command paper, “High Speed Rail: Investing in Britain’s Future – Decisions and Next Steps” engaged strategic environmental assessment requirements and whether the hybrid bill procedure would comply with the requirements of the Environmental Impact Assessment Directive (for more on the HS2 hybrid bill procedure, see my 30 July 2016 blog post HS2: The Very Select Committeehttps://simonicity.com/2016/07/30/hs2-the-very-select-committee/). The loss still grates. And in consequence of that ruling…
There’s a slow, slow train comin’.
Simon Ricketts, 24 April 2021
Personal views, et cetera
Thank you to my Town Legal colleague Lida Nguyen for collating a number of these cases.
Our clubhouse Planning Law, Unplanned session at 6pm on 27 April will follow a similar theme, so if you are interested in issues relating to HS2 or in wider questions as to judicial review, interim injunctions, access to information or compulsory purchase compensation, do join us, whether to contribute to the discussion or just listen in. As always, contact me if you would like an invitation to the clubhouse app (which is still iphone only I’m afraid).
The underlying messaging that was intended by the statement is of course clear: that there are environmental rules, “red tape”, previously foisted on us by Brussels, unnecessary, holding back development.
To continue with the animal references, this is a topical canard. I had in any event intended this week to sidestep the recent announcements about radical planning reform and go back to the possibly related question as to what is actually likely to happen from 1 January 2021 following the end of the Brexit transition period. My Town colleague Ricky Gama and I gave an online talk on this issue last week as part of the Henry Stewart Conferences course The Planning System. We need to focus again on all this, now that we are less than six months away from….what?
The EU (Withdrawal) Act received Royal Assent on 23 January 2020, amending in various respects the EU (Withdrawal) Act 2018 and giving Parliamentary approval for the withdrawal agreement between the UK and EU that was then completed on 1 February 2020. We left the EU on 31 March 2020 in the sense of no longer being part of its structures, including the European Parliament or European Commission. But we remain subject to EU law until 31 December 2020.
Until 31 December 2020, decisions of the UK government and UK public bodies can still be the subject of complaints to the European Commission and rulings by the European Court of Justice, and we are bound by changes in law and by any rulings of the ECJ by that date.
On 31 December 2020, EU law becomes “retained EU law” and existing rulings of European Court of Justice have binding effect.
However (not to scare the horses but…), from that date Parliament may review, amend or repeal all EU-derived domestic legislation without restriction. The Government can provide regulations as to how the UK courts should interpret retained EU law. The Supreme Court is not bound by any retained EU case law. Ministers can by regulations provide for any other relevant court or tribunal not to be bound (first consulting with the president of the Supreme Court president and other specified senior members of the judiciary). Indeed, the Government is already consulting as to how it might give freedom to lower courts to do this: it is no longer a hypothetical possibility – see Government consultation on lower courts departing from retained EU law (Philip Moser QC, 2 July 2020).
Of course we will go into 2021 with EU environmental law fully domesticated into our own systems. As far as planning law is concerned, the EIA, SEA, protected habitats and species regimes will remain, as already set out in our domestic legislation. But then what?
This Government has given no assurances.
There was previously a requirement in section 16 of the 2018 Act that the Government would maintain environmental principles and take steps to establish overseeing body, by publishing a draft Bill in relation to those matters by the end of 2018
Section 16 set out the relevant environmental principles ie
a) the precautionary principle so far as relating to the environment,
b) the principle of preventative action to avert environmental damage,
c) the principle that environmental damage should as a priority be rectified at source,
d) the polluter pays principle,
e) the principle of sustainable development,
f) the principle that environmental protection requirements must be integrated into the definition and implementation of policies and activities,
g) public access to environmental information,
h) public participation in environmental decision-making, and
i) access to justice in relation to environmental matters.
A draft Bill was published by that deadline and its provisions, with some amendments (including a reduced version of that list), are now within the current Environment Bill.
The reduced list of environmental principles (in clause 16(5) of the Bill) is now as follows:
“(a) the principle that environmental protection should be integrated into the making of policies,
(b) the principle of preventative action to avert environmental damage,
(c) the precautionary principle, so far as relating to the environment,
(d) the principle that environmental damage should as a priority be rectified at source, and
(e) the polluter pays principle.”
It no longer includes the principle of “sustainable development” or the last three principles set out in the 2018 Act, which derive from the Aarhus Convention rather than directly from EU law.
Progress on the Bill has been delayed until September 2020 due to Covid-19 (whilst the Government has not chosen, by the 30 June 2020 deadline in the withdrawal agreement, to agree an extension to the 31 December date, which would of course have been possible on exactly the same basis). But in any event Royal Assent would only be the start of a long process of arriving at policy statements so as to deliver on those principles and have up and running a functional Office for Environmental Protection (recruitment for roles within the proposed OEP has not yet commenced).
So any “radical” reform of the planning system is likely to slip in ahead of oversight, in any meaningful way, by this new body or application of the principles that were intended at the time of the 2018 Act to plug the gap post Brexit.
In fact, it’s worse than that. Section 16 of the 2018 Act was repealed by the 2020 Act. There is no longer any duty upon the Government to adopt any particular environmental principles or to establish any independent overseeing body. If the Environment Bill is withdrawn, kicked into the long grass or, by way of amendment, stripped of meaning, there’s nothing to be done, the horse has bolted.
The December 2019 Queen’s Speech said this:
“To protect and improve the environment for future generations, a bill will enshrine in law environmental principles and legally-binding targets, including for air quality. It will also ban the export of polluting plastic waste to countries outside the Organisation for Economic Co-operation and Development and establish a new, world-leading independent regulator in statute.”
By way of political commitment, that’s all there currently is. (NB I think we need to give that “world-leading” epithet a rest – I am trying to think of a recent example where we wouldn’t have been content to swap “world-leading” or “world beating” for, say, “functioning”?).
So from 1 January 2021, what changes might we see to EU-derived environmental law?
It’s pure guess-work, because the Government will not presently be drawn on that subject (which makes the “newt” reference so triggering).
But do you think it was an accident that the last essay in the Policy Exchange publication Planning Anew, just before the tail-wagging endorsement at the end by the Secretary of State, was an essay entitled Environmental Impact Assessment fit for the 21st Century by a William Nicolle and Benedict McAleenan? A flavour:
“To make them fit for the 21st Century, EIAs should focus only on the environmental impacts of development, like natural ecosystems, biodiversity, water, and other components of natural capital. Greater weighting and priority could be given to the most pressing environmental impacts of today, such as biodiversity, given recent evidence of the scale of international and national wildlife decline.
There are several, more subjective facets of EIAs that need to be stripped out, as they dilute this focus and prioritisation of environmental impacts. Landscape aesthetics, for example, should not be included in EIAs, as they are not environmental impacts per se. Policy Exchange has led calls for beauty to be a central factor in the planning system. We applaud this, and have argued for the natural landscape to be the inspiration for architecture, but the EIA should be concerned with what the environmentalist Mark Cocker calls the “more than human”.”
Who are the authors? William Nicolle apparently joined Policy Exchange in 2019, having been a graduate analyst at a utility. Benedict McAleenan is managing partner at “political risk and reputation” firm Helmsley Partners.
The prime minister’s 30 June 2020 “Build, Build, Build” press statement promised a “planning Policy Paper in July setting out our plan for comprehensive reform of England’s seven-decade old planning system, to introduce a new approach that works better for our modern economy and society.”
If changes are proposed to EU-derived environmental laws, please can that be made absolutely clear so that we can have an informed debate. Change and improvement is possible but only where led by the science, not by the think tanks.
After all, any move towards a more zoning-based approach, where the development consenting process is simplified by setting detailed parameters at a plan-making or rule-setting level, will face complications due to the need for strategic environment assessment of any plan or programme required by legislative, regulatory or administrative provisions that sets the framework for subsequent development consents and which is likely to have significant environmental effects – assessment which has become highly prescriptive, particularly in terms of the need to consider, in detail, reasonable alternatives to the selected policy option. Projects which are likely to give rise to significant effects on the environment require environmental impact assessment. It must be shown that plans or projects will not adversely affect defined species of animals or the integrity of defined habitats – with rigorous processes and criteria. Politicians will be bumping up against EU-derived environmental law, and those environmental principles (not yet finalised), at every turn.
Of course, the Government would not have a completely free hand in changing or removing these processes. We are subject to wider international duties, under, for instance the European Convention on Human Rights, the Aarhus Convention, the Paris Agreement (climate), the Espoo Convention (environmental assessment) and the Ramsar Convention (habitats). Trade deals in relation to the export of our goods or services, with the EU and/or other countries and trading blocs, may also require specific commitments.
But, if the Government is moving rapidly towards “comprehensive” reform of the planning system, it’s a fair question to ask: What changes are proposed by this Government to these EU-derived regimes from the end of this year?
Isn’t this the elephant in the room?
Yours faithfully, a newtral observer.
Simon Ricketts, 4 July 2020
Personal views, et cetera
PS Two webinars coming up, free registration, covering the sorts of issues I cover in this blog. Do register and tune in if of interest:
4pm 7 July (hosted jointly by Town Legal and Francis Taylor Building): NSHIPs? The case for residential-led DCOs. I am chairing a discussion between John Rhodes OBE (director, Quod), Bridget Rosewell CBE (Commissioner, National Infrastructure Commission), Gordon Adams (Battersea Power Station), Kathryn Ventham (partner, Barton Willmore) and Michael Humphries QC (Francis Taylor Building). Register here: https://zoom.us/webinar/register/WN_7SoJtOhqQwSJNt0jtmUFVA
5pm 14 July (hosted by Town Legal): Living, Working, Playing – What Does The Covid Period Teach Us? My Town partner Mary Cook is chairing a discussion between Steve Quartermain (Government’s former chief planner, consultant Town Legal), Karen Cook (founding partner, PLP Architecture), Jim Fennell (chief executive, Lichfields), Simon Webb (managing partner, i-transport) and myself. Register here: https://zoom.us/webinar/register/WN_pSbroYIoSRioMXvtDlGP3Q
It’s long. The Environment Bill, which had its First Reading on 15 October 2019, comprises 232 pages. It has 130 sections and 20 schedules. If you want a quicker read, the Explanatory Notes are only 212 pages.
Its shelf life may be short. Of course, we are likely to see a General Election before the Bill has made much progress (although there has been rumour that it may proceed quickly to Second Reading this month) and it will at that point fall unless a motion is passed to carry it over to the next Parliamentary session.
However, there is much within it of interest, and much of direct relevance to the operation of the planning system. I’m sure I’ll come back to various elements in different blog posts. The purpose of this post is to flag the main parts to be aware of from a planning lawyer’s perspective and first to look in particular at the improvements (yes improvements) that have been made to the first part, which sets out the new, post-Brexit regime that would apply to environmental principles and governance.
I am focusing on the relevance of the Bill to English planning law. For a detailed explanation of the territorial extent of each of its provisions, see Annex A of the Explanatory Notes, and the detailed table contained in Annex A.
NB There is no additional protection for the natural environment that could not have been secured with us still in the EU, and there are obvious risks of replacing protections in international obligations with protections in domestic legislation that (even if it is enacted in this form and brought into law) is vulnerable to political short-termism, but I set that issue to one side for the purposes of this summary.
Having flicked through Part 1 and compared it to the December 2018 draft, I would note the following:
Clause 1 to 6 are entirely new, enabling the Secretary of State to set long-term (at least 15 year) “environmental targets” in respect of any matter which relates to (a) the natural environment or (b) people’s enjoyment of the natural environment. At least one target must be set in each of the following priority areas: air quality; water; biodiversity, and resource efficiency and waste reduction. A target in relation to particulate matter in ambient air must also be set. The Secretary of State must take independent advice before setting targets, must be satisfied that the target can be met and there are restrictions on his ability to lower the target. Draft statutory instruments containing the targets must be laid before Parliament by 31 October 2022. There are provisions in relation to reporting and regular reviews of the targets.
Interim targets must be set out in the environmental improvement plans which the Secretary of State must prepare pursuant to clauses 7 to 14 (which largely reflect the draft).
As per the draft, the Secretary of State must prepare a policy statement on environmental principles, which he must be satisfied will contribute to the improvement of environmental protection and sustainable development. The list of “environmental principles” is reduced to the following:
(a) the principle that environmental protection should be integrated into
the making of policies
(b) the principle of preventative action to avert environmental damage
(c) the precautionary principle, so far as relating to the environment
(d) the principle that environmental damage should as a priority be rectified at source, and
(e) the polluter pays principle.
The following were in the draft but no longer appear:
⁃ the principle of sustainable development
⁃ the principle of public access to environmental information
⁃ the principle of public participation in environmental decision-making, and
⁃ the principle of access to justice in relation to environmental matters
I get why the principle of sustainable development has been removed from the list and made an overarching requirement (and I support that as otherwise we would have risked detailed principles set out in a policy statement that may have conflicted with the NPPF, although I wonder how the overarching requirement will be interpreted without further explanation), but why the removal of those Aarhus Convention principles?
Government ministers were to be required to “have regard” to the policy statement. As explained in the Government’s Response, this has been beefed up to “have due regard”. I hadn’t appreciated that this was a higher legal threshold but will bow to others. There is still surely a question as to whether this is strong enough.
The principal objective of the Office for Environmental Protection and exercise of its functions is now set out, as “to contribute to –
(a) the protection of the natural environment, and
(b) the improvement of the natural environment”.
One of my concerns as to the potential scope of the OEP’s operations was that it might get drawn into individual planning disputes. The Government addresses this in its Response:
“We agree, however, with the core of the Committee’s comments around avoiding the OEP becoming inundated with complaints relating to local matters. This is not our intention. Clause 20(7) in the Bill introduced today (formerly clause 12(4)) already directs the OEP to prioritise cases with national implications. We believe this already guards to a significant extent against the Committee’s concerns regarding the OEP having to take on too many complaints relating to local matters or being at too much risk of challenge over its own judgements. However, we have considered this matter further, and have now amended the Bill to provide that the OEP’s enforcement policy must set out how it intends to determine whether a failure to comply with environmental law is serious for the purpose of subsequent clauses (clauses 20(6)(a) and (b) in the Bill introduced today). This should provide greater transparency in relation to the OEP’s approach to the meaning of the term “serious”, and guard against this further.”
My main concern as to the previously proposed procedures was that it was envisaged that the OEP might bring judicial review proceedings in the High Court, a year or more after the decision under challenge, and secure the quashing of the decision, as one of the remedies available. Plainly, this would have introduced unwelcome and unworkable uncertainty into the development process.
I have been impressed at the openness of DEFRA and MHCLG civil servants during this process. Indeed we at Town held last year a breakfast event and, after sharing the concerns of many around the table on precisely this issue, I suggested that “statement of non-conformity” outcome might be more workable, drawing upon the approach in the Human Rights Act 1998.
To my pleasant surprise, the proposed judicial review mechanism has been replaced with provision for an “environmental review” to be brought in the Upper Tribunal.
“(5) On an environmental review the Upper Tribunal must determine whether the authority has failed to comply with environmental law, applying the principles applicable on an application for judicial review.
(6) If the Upper Tribunal finds that the authority has failed to comply with environmental law, it must make a statement to that effect (a “statement of non-compliance”).
(7) A statement of non-compliance does not affect the validity of the conduct in respect of which it is given.
(8) Where the Upper Tribunal makes a statement of non-compliance it may grant
any remedy that could be granted by the court on a judicial review other than damages, but only if satisfied that granting the remedy would not—
(a) be likely to cause substantial hardship to, or substantially prejudice the rights of, any person other than the authority, or
(b) be detrimental to good administration.”
The Government’s Response said this:
“The approach will have a number of benefits compared to that of a traditional judicial review in the High Court. In particular, taking cases to the Upper Tribunal is expected to facilitate greater use of specialist environmental expertise.”
Judicial review will still be available if the OEP considers that a public authority’s conduct “constitutes a serious failure to comply with environmental law”.
There are now fewer exclusions to what falls within the ambit of “environmental matters” for the purposes of Part 1. Unlike the draft, the Bill does not exclude matters relating to:
⁃ the emission of greenhouse gases within the meaning of the Climate Change Act 2008
⁃ taxation, spending or the allocation of resources within government.
Thumbnail sketch of the rest of the Bill
Part 3 covers waste and resource efficiency, including:
⁃ producer responsibility obligations
⁃ deposit schemes and charges for single use plastic items
⁃ managing waste
⁃ waste enforcement
Part 4 covers air quality and the environmental recall of motor vehicles.
Part 5 covers water, including powers to direct water undertakers to prepare joint proposals for the purpose of improving the management and development of water resources.
Part 6 covers nature and biodiversity, including:
⁃ local nature recovery strategies
⁃ tree felling and planting (including requirements for local highway authorities in England to consult before felling trees).
The biodiversity net gain provisions introduced by clause 88 are particularly important. My 30 March 2019 blog post Biodiversity Net Gain: A Ladybird Guide summarised DEFRA’s proposals at the time. Clause 88 states:
“Schedule 15 makes provision for biodiversity gain to be a condition of planning permission in England”.
Schedule 15 sets out that every planning permission shall be deemed to have been granted subject to a condition that the developer has submitted a biodiversity gain plan to the planning authority and the authority has approved it. The plan must demonstrate that the biodiversity value attributable to the development exceeds the pre-development biodiversity value of the onsite habitat by at least 10%. Certain types of development are excluded, including our old friend: development deemed to be permitted by virtue of a development order.
Part 7 covers conservation covenants.
These provisions will also be important for users of the planning system. The provisions follow DEFRA’s February 2019 consultation paper and seek to provide a legal mechanism for landowners to give binding conservation covenants.
As described in the consultation paper, “a conservation covenant is a private, voluntary agreement between a landowner and a “responsible” body, such as a conservation charity, government body or a local authority. It delivers lasting conservation benefit for the public good. A covenant sets out obligations in respect of the land which will be legally binding not only on the landowner but on subsequent owners of the land.”
Again, more anon.
So sorry to have kept you from the rugby, Brexcitements or other more healthy Saturday activities – perhaps even enjoying the natural environment.
This is intended to be an update as to appropriate assessment under the Conservation of Habitats and Species Regulations 2017 rather than a blog post on the domestic effect of EU environmental law post-Brexit.
But I’ll address that briefly first:
EU environmental law post-Brexit
The position remains pretty much as summarised in my 18 September 2018 blog post Planning, Brexit, supplemented by my 22 December 2018 blog post The Office For Environmental Protection. Whilst there is a general initial saving for EU-derived domestic legislation and whilst section 16 of the EU (Withdrawal) Act 2018 sets a process for maintaining EU environmental principles, the “no deal” risks are still that:
(1) the latter depends on an Environment Bill being laid before Parliament and enacted (we so far have only seen draft provisions of the most directly relevant parts of what is proposed), a set of draft environmental principles being consulted upon and approved and the new Office for Environmental Protection being established, all before 31 October 2019 and
(2) post-Brexit, all EU-derived domestic legislation will be reviewed as to its continuing appropriateness and the degree of protection as regards this, presently provided by the environmental principles and governance mechanism in section 16, could easily be amended, replaced or sidestepped by this or a subsequent government.
DEFRA published an Environment Bill summer policy statement on 23 July 2019 but, whilst I am sure the war cabinet talks of little else, there simply is not the time available for the environmental principles and governance machinery to be up and running by the end of October 2019. Even when the machinery is established, it is susceptible to subsequent tinkering and dismantling by way of subsequent legislation.
In England and Wales the main problems caused by the judgment have revolved around:
(1) authorities being caught out through no longer being able to screen out the need for appropriate assessment by relying upon commitments to introduce mitigation measures;
(2) until the February 2019 changes to the NPPF, the disapplication of the NPPF’s “tilted balance” where appropriate assessment is required.
MHCLG has now included within its Planning Practice Guidance a specific section dealing with appropriate assessment (22 July 2019).
By coincidence, two days after the new guidance was published, two separate judgments were handed down by the High Court on different aspects of the appropriate assessment regime, both cases stemming from People Over Wind issues and both cases examples of plain bad timing.
The inquiry had been held in November 2017, pre People Over Wind. The parties agreed that the tilted balance applied in favour of the proposal as there was a shortfall in the Medway Council’s five year housing land supply. The parties also agreed that a condition requiring an environmental construction management plan was sufficient to mitigate any ecological concerns. Following an HRA screening process that took into account a financial contribution towards a strategic access management and mitigation strategy (SAMMS) “no adverse consequences were identified in respect of the impact of any additional recreational pressures on the Thames Estuary Marshes SPA/RAMSAR and the Medway Estuaries and Marshes SPA/RAMSAR sites.”
The inspector recommended approval in his report dated 29 March 2018. The People Over Wind judgment was handed down on 12 April 2018. The Secretary of State invited representations from the parties as to whether appropriate assessment was now required in the light of the judgment, and on their views as to the correct application of planning policy in the light of it – a reference to paragraph 119 in the 2012 NPPF which disapplied the tilted balance in circumstances in the case of development requiring appropriate assessment.
Gladman submitted as part of its representations a report prepared by its ecologists, information to ensure that the inspector could carry out appropriate assessment and reach a conclusion that there were no likely significant effects on the integrity of of the SPAs. It also submitted that it would be “illogical and perverse to disengage the tilted balance in these circumstances”.
Before the Secretary of State reached his decision on the appeal, more generally on 26 October 2018 he embarked a technical consultation as to potential changes to the methodology for assessing local housing need and as part of that consultation he sought views on his proposal to amend the NPPF to make it clear that the tilted balance “is disapplied only where an appropriate assessment has concluded that there is no suitable mitigation strategy in place”, having missed the opportunity to make that change in the 24 July 2018 version (within which paragraph 177 simply replicated the old paragraph 119).
The Secretary of State’s decision letter was issued on 9 November 2018. He found that appropriate assessment was required and stated that on the basis of the appropriate assessment which he had carried out he could “safely conclude that the proposed development would not adversely affect the integrity of any European site”. He noted that under paragraph 177 of the 2018 NPPF “the presumption in favour of sustainable development does not apply where development requiring appropriate assessment is being determined”. He dismissed the appeal.
Gladman challenged the decision on a number of grounds, including irrationality in his application of paragraph 177 in the circumstances of the appeal, failure to have regard to the contents of the technical consultation, failure specifically to consult Gladman in relation to the technical consultation and contending that People Over Wind was wrongly decided, requiring a reference to the CJEU to clarify the position.
Dove J rejected all of the grounds. There was nothing unlawful in the way in which the Secretary of State had applied paragraph 177. It was “applied in a straight forward and uncomplicated manner to the circumstances of the present case”. The technical consultation was only a consultation. Indeed:
“I see nothing wrong, and indeed much to commend, in an approach whereby a decision-taker continues to apply existing policy whilst it is subject to review, and await the outcome of a consultation process on the review of a policy before applying any new policy which might emerge. For a consultation exercise to be lawful it must be engaged in with an open mind. That must contemplate a number of potential outcomes from the consultation process, (including, potentially, no change to the policy) which could be undermined by the premature second guessing of its outcome through the application of a policy which was being consulted upon. In my view the First Defendant’s approach in applying his existing policy in the present case was in principle entirely correct.”
There was no basis for asserting that Gladman should have been specifically consulted as part of the technical consultation and in any event they had not been prejudiced by any failure to consult.
Lastly, he was unpersuaded that there was any justification for the reference sought to the CJEU or that People Over Wind was wrongly decided: “the need for full and precise analysis removing all reasonable scientific doubt, reflects a consistent line of authority in the CJEU emphasising these features of the requirements of the Habitats Directive…Whilst there may be cases in which the existence of significant effects could be addressed by the examination of mitigating measures at the Appropriate Assessment screening stage that is not, in principle, any justification for not undertaking the Appropriate Assessment itself.” Furthermore, as also relied upon by the CJEU in People Over Wind, “the taking account of mitigation measures and exclusion of the Appropriate Assessment process may also deprive the public of a right to participate in the decision-taking process.”
The final kick in the teeth for Gladman must have come when, after the 24 July 2018 version of the NPPF missed the obvious opportunity to resolve the widespread problems caused by People Over Wind, it was finally put right in the 19 February 2019 version. So if the decision letter had been issued either at least six weeks before the 12 April 2018 ruling in People Over Wind (such that the decision was beyond the legal challenge period) or after 19 February 2019, the chances are they would have had their permission. A Secretary of State who actually wanted to see housing would surely have sorted out the policy issue more quickly – or delayed the decision letter. Bad timing indeed.
The timing was similarly awkward in R (Wingfield) v Canterbury City Council & Redrow Homes South East (Lang J, 24 July 2019). Outline planning permission was obtained on 5 July 2017 for up to 250 dwellings and associated development at Hoplands Farm, Westbere, Kent. The site is near SPAs and an SAC. On the basis of mitigation proposals, Canterbury City Council concluded, having taken advice from Natural England, that appropriate assessment was not required.
The judicial review period expired without challenge and the site was sold to the interested party, Redrow Homes. Reserved matters approval was sought in December 2017 for the first phases of development. Then came that People Over Wind ruling on 12 April 2018. In the light of the judgment, the council carried out an appropriate assessment and concluded that, with mitigation, the project would have no adverse effect on the integrity of the European protected sites. Reserved matters approval was granted on 12 February 2019.
The claimants argued that “the Council acted in breach of EU law by failing to conduct an HRA before granting outline planning permission and impermissibly taking into account mitigation measures when screening the proposed development, contrary to the CJEU judgment in the People over Wind case. The effect of the judgment of the CJEU was to render the grant of outline planning permission a nullity, which could no longer be relied upon. Further or alternatively, when the Council realised its error, it should have revoked the outline planning permission and re-considered the application. Instead, it unlawfully conducted an HRA at the reserved matters stage, when it should have been conducted at the earliest possible stage, before the grant of outline planning permission.”
Lang J rejected both arguments. The submission that “the effect of the judgment of the CJEU in People Over Wind was to render the grant of outline planning permission a nullity was both contrary to authority, and wrong in principle. A decision made by a public body is valid unless and until it is quashed”. Further, “the Council could lawfully conduct an appropriate assessment at the reserved matters stage, in the circumstances of this case”.
“In considering whether the Council could legitimately remedy its earlier error by conducting an appropriate assessment at reserved matters stage, instead of revoking the grant of outline planning permission, I have taken into account that the consequences of revoking planning decisions long after they have been made, and the time limits for challenge have expired, are disruptive and undermine the principle of legal certainty. As Laws J. said in R v Secretary of State for Trade and Industry, ex parte Greenpeace Ltd  Env LR 415, at , applicants for judicial review must act promptly, so as to ensure that the proper business of government and the reasonable interests of third parties are not overborne or unjustly prejudiced by litigation brought in circumstances where the point in question could have been exposed and adjudicated without unacceptable damage.
In this case, the IP acquired its interest in the Site after outline planning permission had been granted and the time for bringing a judicial review challenged had expired. Although building operations have not yet commenced, time and money has been spent in bringing this project to fruition. The Council considers that the development will bring tangible benefits to the community, although local residents, such as the Claimant, take a different view.
In my judgment, the Council’s decision to remedy its earlier error by conducting an appropriate assessment at reserved matters stage was permissible under EU and domestic law, and it was a proportionate and effective remedy for the breach of EU law […]
Alternatively if my analysis is not correct, I would nonetheless refuse relief in this case. The Court may refuse relief where there has been a breach of EU law, if the substance of the EU right has been complied with.”
The claimant also sought to argue that the HRA was deficient. It was not:
“the HRA conducted by the Council was appropriate for the task in hand, particularly bearing in mind that the Council was able to draw upon the detailed research and assessment in the ‘Report to inform a Habitats Regulations Assessment’, as well as the further reports submitted by the IP. Its findings were complete, precise and definite and there were no significant lacunae. The Council was entitled to rely upon Natural England’s endorsement of its HRA, particularly since Natural England had initially raised concerns about the evidence-base provided by the applicants, and those concerns were addressed by the further evidence produced by the IP. Natural England, as the custodian of the Stodmarsh designated sites, was particularly well placed to judge the risks from the proposed development. In my view, the Claimant’s challenge did not come close to meeting the high threshold of Wednesbury irrationality; it was primarily a disagreement with the Council’s exercise of its planning judgment.”
So bad timing in this case for the claimant, unable to take advantage of the windfall that People Over Wind appeared to represent.
Even if we leave the EU, I suspect that we will not be leaving behind these sorts of arguments for a good time yet – and it is apparent from the Gladman case that (1) the resulting trip hazards are as often those introduced by our own domestic policies and (2) when it comes to CJEU cases such as People Over Wind, however inconvenient, our domestic courts are not going to be turning the clock back.
Local authorities in south Hampshire have been advised by a Government body not to grant permission for most forms of residential development until further notice. Perhaps absurdly, but in desperation, authorities have even been exploring amongst themselves whether they could at least grant planning permission subject to a condition restricting the homes from being occupied, or simply risk the consequences of ignoring the advice – the position is that bad.
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 (not those in my 1 June 2019 blog post, although the same by product) 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 (see for instance the 25 June 2019 Guardian story Southern Water faces prosecution after record £126m penalty).
The issue was raised in a House of Commons debate on 17 June 2019 by Suella Braverman, Conservative MP for Fareham, but worryingly more from the perspective of seeking to suspend affected authorities’ housing targets rather than resolving the underlying issue:
“Planning applications that could deliver hundreds of new homes in Fareham are in limbo following advice from Natural England, which has instructed that planning permission should be refused unless developments are nitrate-neutral, after two rulings from the European Court of Justice. Will the Government work with me to look at suspending house building targets while affected councils work to find a solution to avoid being unfairly treated at potential appeals?”
I’m not sure how reassured she we are by the response from the relevant Under-Secretary, Jake Berry: “We will happily work with my hon. Friend as she sets out. I believe that the housing Minister is already looking into this issue, and I am sure he will be in touch with her in due course.”
Thankfully it’s known as the “nitrogen deposition” or the “Dutch” case. Whilst the case concerned nitrogen deposition effects arising from agricultural activities, there are two particular (unsurprising) parts of the ruling which are relevant for our purposes:
1. The Habitats Directive does not preclude “national programmatic legislation which allows the competent authorities to authorise projects on the basis of an ‘appropriate assessment’ within the meaning of that provision, carried out in advance and in which a specific overall amount of nitrogen deposition has been deemed compatible with that legislation’s objectives of protection. That is so, however, only in so far as a thorough and in-depth examination of the scientific soundness of that assessment makes it possible to ensure that there is no reasonable scientific doubt as to the absence of adverse effects of each plan or project on the integrity of the site concerned, which it is for the national court to ascertain.”
2. An appropriate assessment under the Habitats Directive “may not take into account the existence of ‘conservation measures’ within the meaning of paragraph 1 of that article, ‘preventive measures’ within the meaning of paragraph 2 of that article, measures specifically adopted for a programme such as that at issue in the main proceedings or ‘autonomous’ measures, in so far as those measures are not part of that programme, if the expected benefits of those measures are not certain at the time of that assessment.”
The most detailed account that I could find of the legal advice and underlying issues is in Portsmouth City Council report to cabinet 11 June 2019. It explains that the Integrated Water Management Strategypublished last year by the Partnership for Urban South Hampshire (PUSH) authorities, Natural England and the Environment Agency recognised that there were “significant uncertainties beyond the year 2020 relating to water quality, quantity, the capacity for accommodating future growth and the impacts on European nature conservation designations.”
“Following the CJEU ruling, Natural England (NE), the government’s adviser for the natural environment, advises that, under the requirements of the Habitat Regulations, the existing uncertainty about the deterioration of the water environment must be appropriately addressed in order for the assessment of a proposal to be legally compliant. They recommend that this is addressed by securing suitable mitigation measures to ensure that proposals achieve ‘nitrate neutrality’. It is recognised that it would be difficult for small developments or sites on brownfield land (which form the majority of applications in Portsmouth) to be nitrate neutral.
NE has therefore advised [Havant Borough Council that ‘planning permission[s] should not be granted at this stage’ whilst the uncertainty around this issue means that a comprehensive assessment of the impacts of a proposal cannot be satisfactorily carried out and while an interim strategic solution is being developed for the sub-region’. Natural England’s advice is that proposals for new employment or leisure uses which do not entail an overnight stay are generally not subject to these concerns.
Officers sought advice from Queen’s Counsel on the matter, which confirmed the validity of Natural England’s position (as of 05.05.19). As per the legal advice received, and in the absence of any pre-existing mitigation strategy, the City Council has temporarily ceased granting planning consent for additional dwellings (or an intensification of dwellings), tourism related development and development likely to generate an overnight stay at this time. Such applications can still be considered on an individual basis if they are able to demonstrate that the development would be ‘nitrate neutral’. It is understood that other Local Authorities within the Solent catchment have also temporarily stopped granting planning consent for development affected by this matter whilst mitigation strategies are being developed.”
“3.11 Immediate actions being progressed are as follows:
a) Portsmouth and the PUSH authorities to lobby central government on the approach to the matter. There appears to be disconnect between government agencies on their advice to Local Authorities, including a clear conflict between the approach to the water quality issue and the pressure to meet the government’s housing delivery targets. We will be urging Government to examine the sources of the nitrates problem, including its own environmental permitting regimes and insufficient wastewater treatment practices by statutory undertakers, rather than solely focusing on the planning system/ development industry to present solutions.
b) PUSH authorities have agreed to explore a strategic solution to the nitrates problem that can be used as mitigation by all authorities.
c) Officers are identifying and exploring with Natural England and other relevant parties short term measures which could enable planning consents to resume in the short term while a more comprehensive and strategic solution is determined.
d) Officers are arranging to meet with Southern Water to explore any existing capacity for improvements in the operation of the existing waste water treatment infrastructure and the scope, timescales and mechanisms to improve the existing treatment”
The Partnership for Urban South Hampshire (“PUSH”) comprises Hampshire County Council, Portsmouth, Southampton, Eastleigh, East Hampshire, Fareham, Gosport, Havant, New Forest, Test Valley and Winchester.
PUSH held a joint committee meeting on 4 June 2019. The minutes make interesting reading. The meeting was joined by Graham Horton from Natural England and Philip James from Southern Water. Philip James made it clear that any solution arrived at by Southern Water would need to be acceptable to its regulator, the Environment Agency. I suspect this issue is not going to be resolved quickly…
“As discussion continued, Members sought views from Graham Horton whether there is a short-term solution which might mitigate risk but allow housing to be built. Members were advised that an option could be that Natural England prepares a form of words which, whilst it would not remove the risk of challenge, may give reassurance to legal advisers to support Local Planning Authorities deliver housing.
The suggestion was put to the meeting that a possibility could include Local Planning Authorities granting permission with conditions of no occupation until this matter is resolved and Graham Horton was asked whether if this approach was taken whether Natural England would challenge LPAs.
The Committee was advised that if Natural England agree and sign up to this then there would not be a challenge, but they will reserve judgment at this time until a joint position is developed and agreed which allows the issue to be resolved. This will not eliminate the risk but should give Local Planning Authorities some comfort and allow them to determine their planning consents.
At the conclusion of the discussion on this item, the Chairman summarised that it was a matter for individual Local Authorities whether they started to issue planning consents, that the best approach was to collectively work on a form of wording and it was agreed this would form joint working and the that the PUSH Planning Officers’ Group would take the lead on the preparation of this Assessment as a matter of priority. ”
It was further resolved that the Chairman should write “on behalf of PUSH to the Ministry of Housing, Communities and Local Government and the Department for Environment, Food and Rural Affairs to outline how we balance the need for housing and the need to protect the environment and to request consideration of respite from the Housing Delivery Test until this is resolved.”
I can foresee a practical veto for some time to come in relation to housing proposals in the area, bar those which are big enough so as to be able to incorporate their own measures to ensure nitrogen neutrality.
But is anyone focusing on this huge issue, an issue not just for the environment but for the breakdown in practice of the normal planning system in a number of authorities? There has been one piece in the mainstream media, a 14 June 2019 BBC report, Hampshire housing developments on hold over nitrate as well as a more detailed subsequent 19 June 2019 article in Planning magazine (which provided my way into much of this post, thank you Mark Wilding).
It’s not as if Parliament is blind to the issue. After all the House of Commons Environmental Audit Committee published a detailed and pretty direct set of recommendations in its 6 November 2018 report UK Progress on Reducing Nitrate Pollution.
But what chance of any solutions to the immediate crisis on the south coast, please?
In my 15 October 2016 blog post Airports & Courts I made the obvious prediction that publication by the Secretary of State for Transport of the Airports National Policy Statement (“ANPS”) would inevitably lead to litigation. The ANPS is important because under the Planning Act 2008 it sets the policy basis for a third runway at Heathrow to the north west of the current runways (the “NWR Scheme”).
It was always going to be important for the High Court to be able to rise to the (in a non-legal sense) administrative challenge of disposing of claims efficiently and fairly. The purpose of this blog post is to look at how that was achieved (no easy feat) and what we can learn more generally from the court’s approach to the litigation
The ANPS was designated on 26 June 2018 and five claims were brought seeking to challenge that decision:
⁃ A litigant in person, Neil Spurrier (a solicitor who is a member of the Teddington Action Group)
⁃ A group comprising the London Borough of Richmond-upon-Thames, the Royal Borough of Windsor and Maidenhead, the London Borough of Hammersmith and Fulham, Greenpeace and the Mayor of London
⁃ Friends of the Earth
⁃ Plan B Earth
⁃ Heathrow Hub Limited and Runway Innovations Limited [unlike the other claimants above, these claimants argue for an extension of the current northern runway so that it can effectively operate as two separate runways. This scheme was known as the Extended Northern Runway Scheme (“the ENR Scheme”)]
Arora Holdings Limited joined as an interested party to each set of proceedings in pursuance of their case for a consolidated terminal facility to the west of the airport.
The Speaker for the House of Commons intervened in the Heathrow Hub Limited claim to object to various statements made to Parliament and Parliamentary Committees being admitted in evidence.
The first four claims raised 22 separate grounds of challenge. The fifth claim raised a further five grounds of challenge.
As Planning Liaison Judge, ie effectively lead judge within the Planning Court, Holgate J in my view has played an extremely effective role. Following a directions hearing, ahead of a subsequent pre-trial review three months later, he laid down a comprehensive set of directions on 4 October 2018 which provided for:
⁃ the first four claims to be heard at a single rolled up hearing, followed by the fifth claim
⁃ the cases to be heard by a Divisional Court (ie two or more judges, normally a High Court Judge and a Lord Justice of Appeal. In the event, the four claims were heard by a Divisional Court comprising Hickinbottom LJ and Holgate J. The fifth claim was heard immediately afterwards by a Divisional Court comprising Hickinbottom LJ, and Holgate and Marcus Smith JJ.)
⁃ video link to a second court room and (paid for jointly by the parties in agreed proportions) live searchable transcripts of each day’s proceedings
⁃ procedure to be followed in relation to expert evidence sought to be submitted in support of the first claim
⁃ statements of common ground
⁃ amended grounds of claim, with strict page limits and against the background of a request from the judge to “review the extent to which they consider that any legal grounds of challenge previously relied upon remain properly arguable in the light of the Acknowledgments of Service“, and with specific claimants leading on individual issues
⁃ bundles and skeleton arguments complying with strict page limits and other requirements
⁃ payment of security for costs by Heathrow Hub Limited in the sum of £250,000
⁃ cost capping in the other claims on Aarhus Convention principles
The main proceedings were heard over seven days in March, with the Heathrow Hub proceedings then taking a further three days (followed by written submissions). As directed by Holgate J, hearing transcripts were made publicly available.
Less than six weeks after close of the Heathrow Hub hearing, judgment was handed on 1 May 2019 in both case:
The transcript of the first judgment runs to 184 pages and the transcript of the second judgment runs to 72 pages.
I am not going to summarise the judgments in this blog post but happily there is no need as the court at the same time issued a summary, which serves as a helpful précis of the claims and the court’s reasoning for rejecting each of them.
The Divisional Court found that all but six grounds were unarguable (the six being two Habitats Directive grounds from the first case, two SEA grounds from the first case and two from the second case (legitimate expectation and anti-competition). “All the other grounds were not considered not to have been arguable: the claimants may apply for permission to appeal against the Divisional Court’s decision concerning those grounds to the Court of Appeal within 7 days. The remaining six grounds were ultimately dismissed. The claimants may apply to the Divisional Court for permission to appeal within 7 days. If the Divisional Court refuses permission to appeal to the Court of Appeal, the claimants may re-apply directly to the Court of Appeal.”
The Secretary of State for Transport gave a written statement in the House of Commons on the same day, welcoming the judgments.
The two judgments will be essential reading in due course for all involved in similar challenges; the 29 grounds, and various additional preliminary points, cover a wide range of issues frequently raised in these sorts of cases and each is carefully dealt with, with some useful textbook style analysis.
In the Spurrier judgment:
– the scope for challenge of an NPS (paras 86 to 90)
⁃ relationship between the NPS and DCO process (paras 91 to 112)
⁃ extent of duty to give reasons for the policy set out in the NPS (paras 113 to 123)
⁃ consultation requirements in relation to preparation of an NPS (paras 124 to 140)
⁃ standard of review in relation to each of the grounds of challenge (paras 141 to 184)
⁃ the limited circumstances in which expert evidence is admissible in judicial review (paras 174 to 179)
⁃ whether updated information should have been taken into account (paras 201 to 209)
⁃ whether mode share targets were taken into account that were not realistically capable of being delivered (paras 210 to 219)
⁃ the relevance of the Air Quality Directive for the Secretary of State’s decision making (paras 220 to 285)
⁃ compliance with the Habitats Directive (paras 286 to 373)
⁃ compliance with the Strategic Environmental Assessment Directive (paras 374 to 502)
⁃ whether consultation was carried out with an open mind (paras 503 to 552)
⁃ whether the decision to designate the ANPS was tainted by bias (paras 553 to 557)
⁃ the relevance of the Government’s commitments to combat climate change (paras 558 to 660)
⁃ whether there was a breach of the European Convention on Human Rights (paras 661 to 665)
In the Heathrow Hub judgment:
⁃ legitimate expectation (paras 113 to 138)
⁃ use of Parliamentary material in the context of Article 9 of the Bill of Rights (paras 139 to 152)
⁃ competition law (paras 157 to 209).
As we wait to see whether any of these claims go further, I note that Arora has commenced pre application consultation ahead of submitting a draft DCO for a “consolidated terminal facility to the west of the airport, which we are calling Heathrow West, related infrastructure and changes to the nearby road and river network.” Now that is going to be another interesting story in due course. I’m not sure we have previously seen duelling DCOs…
Whoops I did it again: agreed to give a talk on a subject before researching it. These are no more than my notes but I hope the links at least are useful.
The Chancellor announced in his Spring Statement that “following consultation, the government will use the forthcoming Environment Bill to mandate biodiversity net gain for development in England, ensuring that the delivery of much-needed infrastructure and housing is not at the expense of vital biodiversity.”
A DEFRA blog post was published the same day, quoting Michael Gove:
“Mandating biodiversity net gain will ensure wildlife thrives at the same time as addressing the need to build new homes. Whether it’s through planting more trees or creating green corridors, developers will now be required to place the environment at the heart of new developments.
This new approach will not only improve habitats for wildlife and create healthier places to live and work, but is central in our ambition to leave the environment in a better state for future generations.”
This is what we have committed to do in any event so as to comply with our obligations under the UN Convention on Biological Diversity which we ratified in 1994. In order to seek to meet the Aichi 2015 – 2020 biodiversity targets the UK has committed as one of its “priority actions“, that it will, “through reforms of the planning system, take a strategic approach to planning for nature within and across local areas. This approach will guide development to the best locations, encourage greener design and enable development to enhance natural networks. We will retain the protection and improvement of the natural environment as core objectives of the planning system.”
The principle of requiring biodiversity net gain is supported not just by environmental groups but by development industry bodies – see for instance UK Green Building Council open letter dated 1 March 2019 to the Chancellor:
“We […] look to the Government to establish the long-term legal framework needed to fulfil its pledge to “leave the environment in a better state than we found it” – and the proposed Environment Bill is the opportunity to do so. The Bill can provide the foundation for a shift from an economy in which business aims to limit its impact on the environment towards an economy that is restorative and regenerative by design.
We are calling on the Government to use the Bill to set legally binding targets for the achievement of environmental objectives – including tackling biodiversity loss, improving water and air quality and cutting down resource use and waste. By setting binding targets, the Government can give the construction and property sector the confidence and certainty we need to help drive nature’s recovery, and set a level playing field that enables businesses who do the right thing to be rewarded.”
The letter was signed by representatives of the following organisations (a pretty good list!):
Argent (Property Development) Services LLP
BAM Construct UK
BAM Nuttall Ltd
Barratt Developments Plc
Berkeley Group Holdings
Clarion Housing Group
Kingspan Insulation Ltd
Telford Homes Plc
William Hare Ltd
So what lies ahead? This is an initiative which has real momentum, but requires careful implementation if it is not on the one hand to be adding unreasonably to the burden of applicants and authorities (in terms of what further documentation and analysis is required and/or in terms of placing the hurdle for an acceptable scheme impossibly high) or on the other hand to be so lax as to be providing nothing over and over present policy requirements.
“Net gain is an approach to development that aims to leave the natural environment in a measurably better state than beforehand. This means protecting existing habitats and ensuring that lost or degraded environmental features are compensated for by restoring or creating environmental features that are of greater value to wildlife and people. It does not change the fact that losses should be avoided where possible, a key part of adhering to a core environmental planning principle called the mitigation hierarchy. Net gain is not a new concept. Several countries around the world have already adopted biodiversity net gain policies and net gain for biodiversity is already supported through national planning policy.”
A footnote to passage notes:
“NPPF paragraph 170 states that planning policies and decisions should minimise impacts on and provide net gains for biodiversity; paragraph 174 requires plans to pursue opportunities for securing measurable net gains; paragraph 175 requires planning decisions to encourage biodiversity improvements in and around developments and paragraph 118 states that the planning system should take opportunities to secure net environmental gains“.
The consultation document is a detailed document, but this inset within it summarises the proposed role of biodiversity net gain in the planning system:
“Our proposal is that biodiversity net gain will be delivered within the existing planning and development process. This summary is illustrated in the infographic that follows.
When assessing potential development sites, habitat surveys will identify habitats and their condition as is already done for much development. Surveys help identify opportunities for enhancement as part of green infrastructure as well as possible constraints.
Development design will proceed as normal, but better informed by figures for biodiversity losses and gains. A standard biodiversity metric will be populated with habitat information from the site assessment and landscape plans. This will help demonstrate at an early stage that harm has been avoided as far as possible and that new green infrastructure will be of good environmental quality. The metric could also help to anticipate the costs of achieving net gain to factor these into land purchase where possible. No existing planning protection for the environment will be weakened and the principle of avoiding harm first (known as the “mitigation hierarchy”) will continue to ensure that preventing damage to nature will always be prioritised, wherever possible.
If net gain cannot be achieved on site, the metric would provide the right information to discuss habitat enhancement or creation with local providers or with the local authority during pre-application negotiations. The tariff rate would offer a guide for the upper limit of habitat compensation costs, alongside information from growing habitat creation markets.
When preparing local plans, local authorities are able to identify opportunities for habitat improvement that would benefit local people and support nature recovery. They would be able to choose to bring improvement sites forward themselves or work with other providers.
When developers and local planning authorities are consulting with the local community prior to submitting a planning application, it will be possible to use biodiversity net gain figures and habitat enhancement measures to explain the benefits and costs of a development proposal more transparently.
With clearer expectations, developers will be able to submit planning applications with greater confidence that proposals can be supported on biodiversity grounds.
For local authorities, transparent figures for biodiversity losses and gains can be quickly checked and provide confidence that impacts will be positive. Figures will also indicate the environmental quality of green infrastructure as part of development design.
As part of the planning permission, developers would sign up to predictable conditions, obligations or a tariff payment to secure biodiversity net gain. The availability of a tariff would prevent planning permission from being delayed by net gain requirements, and local authorities will be able to demonstrate that positive impacts to help improve the environment for local communities have been secured.”
The full list of the 45 consultation questions within the document demonstrates the potential complexity of what is proposed:
From a practical perspective, key issues are plainly going to include
⁃ establishing a robust ‘biodiversity unit’ metric
⁃ determining what would the required level of improvement (where does 10% come from?)
⁃ determining the circumstances in which a tariff or other off-site arrangement is appropriate and calculating its quantum
⁃ arriving at practical delivery mechanisms, by way of planning conditions, section 106 obligations and/or CIL, that meet relevant legal and policy requirements.
What I would love to understand is really how “mandated” the proposed requirements will be in practice. Does the Government envisage that the detailed regime can be bolted into the existing planning system by way of amendments to the PPG (which seems implausible given the potential nature of the tariff measures in particular) or will the Environment Bill be prescriptive in terms of what precisely will be required?
DEFRA is apparently due to respond to the consultation shortly, with the Bill likely to be published before the summer recess but, dear reader from the near future, you are possibly looking back at this blog post thinking “well that didn’t age well…”
People Over Wind has removed the ability for the competent authority to screen out the need for appropriate assessment, under the Conservation of Habitats Regulations 2017, on the basis that a significant effect on a Special Protection Area or Special Area of Conservation is unlikely, where that conclusion is reliant on proposed mitigation measures. The result has been far more projects and plans requiring appropriate assessment to ascertain that they will not adversely affect the integrity of the relevant SPA or SAC.
Grace, Sweetman has removed the ability for the competent authority to reach a conclusion at appropriate assessment stage that there will be no adverse effect on integrity, where mitigation measures are relied on that in reality amount to compensatory measures for the loss of habitat.
Holohan now imposes more detailed requirements on the competent authority at appropriate assessment stage:
1. […] an ‘appropriate assessment’ must, on the one hand, catalogue the entirety of habitat types and species for which a site is protected, and, on the other, identify and examine both the implications of the proposed project for the species present on that site, and for which that site has not been listed, and the implications for habitat types and species to be found outside the boundaries of that site, provided that those implications are liable to affect the conservation objectives of the site.
2. […] the competent authority is permitted to grant to a plan or project consent which leaves the developer free to determine subsequently certain parameters relating to the construction phase, such as the location of the construction compound and haul routes, only if that authority is certain that the development consent granted establishes conditions that are strict enough to guarantee that those parameters will not adversely affect the integrity of the site.
3. […] where the competent authority rejects the findings in a scientific expert opinion recommending that additional information be obtained, the ‘appropriate assessment’ must include an explicit and detailed statement of reasons capable of dispelling all reasonable scientific doubt concerning the effects of the work envisaged on the site concerned.”
If you are relying on an appropriate assessment in relation to a project or plan, I suggest that you urgently check that it addresses these three requirements. An decision taken in reliance upon an appropriate assessment which does not cover off these points will be susceptible to legal challenge. If caught at the right time, deficiencies should be able to be addressed by some extra work. But it will be too late to rectify matters once the appropriate assessment is reached and the decision taken.
These CJEU rulings are unambiguous in their stated conclusions on the law, very different from our common law approach.
They are also likely to continue to be relevant, regardless of what happens with Brexit. After all, as set out in my 18 September 2018 blog post Planning, Brexit, Michael Gove as Secretary of State for Environment, Fisheries and Rural Affairs has committed that:
“Where environmental principles are contained in specific pieces of EU legislation, these will be maintained as part of our domestic legal framework through the retention of EU law under the EU (Withdrawal) Bill. Any question as to the interpretation of retained EU law will be determined by UK courts in accordance with relevant pre-exit CJEU case law and general principles, subject to the other exceptions and restrictions within the Bill. For example, CJEU case law on chemicals, waste and habitats includes judgments on the application of the precautionary principle to those areas. This will therefore be preserved by the Bill“.
As set out in that blog post, we are still waiting for the draft Bill, required by section 16 of the EU (Withdrawal) Act to be published by Boxing Day 2018, that will set out the environmental principles to be applied post Brexit and the body that will enforce them.
What we now have seen of course is the draft withdrawal agreement published on 14 November 2018. Who knows whether it will be concluded but it envisages that the CJEU will continue to have jurisdiction in any proceedings brought against the UK during the transition period to 31 December 2020.
In the event of the backstop being triggered at the end of the transitional period if the Irish border issue hasn’t been settled, a series of commitments in relation to environmental protection will kick in, as set out in Part 2 of Annex 4 to the Protocol on Northern Ireland/Ireland (pages 356 to 360 of the overall draft agreement). The commitments include:
– Non-regression in level of environmental protection subsisting at the end of the transitional period.
– The principles to be reflected in legislation:
a) the precautionary principle;
b) the principle that preventive action should be taken;
c) the principle that environmental damage should as a priority be rectified at source; and
d) the “polluter pays” principle
– The Joint Committee shall adopt decisions laying down minimum commitments for:
a) the reduction of national emissions of certain atmospheric pollutants;
b) the maximum sulphur content of marine fuels
c) those best available techniques, including emission limit values, in relation to industrial emissions
– Commitment to meet international obligations as to addressing climate change
– Commitment to carbon pricing and trading of allowance consistent with EU system
– Finally, although much of this is already in hand via section 16 of the EU (Withdrawal) Act and/or the subject of other international obligations, a commitment to effective enforcement of environmental laws as well as the following:
“The United Kingdom shall ensure that administrative and judicial proceedings are available in order to permit effective and timely action by public authorities and members of the public against violations of its laws, regulations and practices, and provide for effective remedies, including interim measures, ensuring that any sanctions are effective, proportionate and dissuasive and have a real and deterrent effect.
The United Kingdom shall implement a transparent system for the effective domestic monitoring, reporting, oversight and enforcement of its obligations pursuant to this Article and to Article 2 by an independent and adequately resourced body or bodies…
The independent body shall have powers to conduct inquiries on its own initiative concerning alleged breaches by public bodies and authorities of the United Kingdom, and to receive complaints for the purposes of conducting such inquiries. It shall have all powers necessary to carry out its functions, including the power to request information. The independent body shall have the right to bring a legal action before a competent court or tribunal in the United Kingdom in an appropriate judicial procedure, with a view to seeking an adequate remedy.”
Finally, fabulous timing on the part of UKELA to have secured for next week’s annual Garner lecture Professor Juliane Kokott, Advocate General at the CJEU (who has been at the centre of so much EU case law, including the People Over Wind and Holohan cases referred to above). It will be fascinating to hear her perspective.
Simon Ricketts, 16 November 2018
Personal views, et cetera
PS David Elvin QC has since reminded me that the CJEU also on 7 November handed down its judgment in the Dutch Nitrogen Deposition case, which also contains important rulings in relation to appropriate assessment, for instance the extent to which agricultural activities amount to a “project”, as well as the extent of certainty required if conservation measures are to be relied upon as mitigation. See James Maurici QC’s blog post.
I referred in my 29 September 2018 blog post OAN Goal to the confusion caused by the publication by the ONS on 20 September 2018 of updated 2016-based household projections that resulted in the national minimum housing need calculated by the NPPF’s standard method falling significantly from data published in September 2017 which had been based on 2014 household projections.
There was widespread concern that the updated figures were not reliable. The Government had indicated that the figures would not lead to a reduction in the national 300,000 new homes target. A revision to the standard method was to be made so that the new household projections did not cause that target to be missed but in the meantime how were authorities to plan?
The consultation paper is unambiguous: the Government has decided that it is not right to change its aspirations and the ONS figures are indeed misleading due to the way that they only draw from two censuses (rather than previous projections based on five censuses) “which focuses it more acutely on a period of low household formation where the English housing system was not supplying enough additional homes“. In addition:
⁃ “Household projections are constrained by housing supply”
⁃ “The historic under-delivery of housing means there is a case for public policy supporting delivery in excess of household projections, even if those projections fall“.
⁃ “Other things being equal a more responsive supply of homes through local authorities planning for more homes where we need them will help to address the effects of increasing demand, such as declining affordability, relative to a housing supply that is less responsive“.
⁃ “The above factors have led to declining affordability…This indicates that the Government should not be less ambitious for housing supply“.
The Government has decided that the best way of responding to the ONS household figures is to ignore them completely, ie in its language:
“1. For the short-term, to specify that the 2014-based data will provide the demographic baseline for assessment of local housing need.
2. To make clear in national planning practice guidance that lower numbers through the 2016-based projections do not qualify as an exceptional circumstance that justifies a departure from the standard methodology; and
3. In the longer term, to review the formula with a view to establishing a new method […] by the time the next projections are issued.”
So for local plans submitted from 24 January 2019, the 2014-based household projections as per the September 2017 data are to be used but with current figures used for the calculation of the ratio of local median house prices to local median earnings (where the ratio exceeds four the standard method formula will continue to increase local need above household projections). This all provides authorities with welcome clarity – ignore the September 2018 ONS projections and no need to wait for tweaks to the methodology.
Housing land supply
The 2018 NPPF provides that in calculating how many years’ supply of housing land supply each authority has, the standard method for assessing local housing need is to be used as the baseline for housing land supply calculations where plans are considered to be out of date. The NPPF is to be amended (and updated planning guidance is to be published) so as to clarify that whilst in exceptional circumstances authorities can use a justified alternative approach to the standard method for calculating housing need, this only applies to plan making rather than in the calculation of need in the determination of applications and appeals where the scale of housing land supply is relevant.
The definition of deliverable
In order to determine whether an authority has a five year supply of deliverable sites, the definition of “deliverable” is critical. The Government has held its hands up: the definition of “deliverable” in the 2018 NPPF could be clearer. It proposes the following revised definition:
“To be considered deliverable, sites for housing should be available now, offer a suitable location for development now, and be achievable with a realistic prospect that housing will be delivered on the site within five years. In particular:
a) sites which do not involve major development and have planning permission, and all sites with detailed planning permission, should be considered deliverable until permission expires, unless there is clear evidence that homes will not be delivered within five years (for example because they are no longer viable, there is no longer a demand for the type of units or sites have long term phasing plans).
b) where a site has outline planning permission for major development, has been allocated in a development plan, has a grant of permission in principle, or is identified on a brownfield register, it should only be considered deliverable where there is clear evidence that housing completions will begin on site within five years.”
There will be further guidance in due course “to provide further information on the way that sites with different degrees of planning certainty may be counted when calculating housing land availability“.
Development requiring Habitats Regulations Assessment
The Government belatedly intends to address a problem that has arisen from the European Court of Justice’s ruling in People Over Wind (see my 20 April 2018 blog post EU Court Ruling: Ignore Mitigation Measures In Habitats Screening). The 2018 NPPF followed the 2012 NPPF in disapplying the presumption in favour of sustainable development where appropriate assessment is required, even though the effect of People Over Wind is that appropriate assessment is now routinely required in relation to proposed developments where mitigation will avoid any potential from harm, thereby removing the presumption in relation to many more development proposals than had previously been the case.
Paragraph 177 is now proposed to be amended to read:
“The presumption in favour of sustainable development does not apply where the plan or project is likely to have a significant effect on a habitats site (either alone or in combination with other plans or projects), unless an appropriate assessment has concluded that there will be no adverse effect from the plan or project on the integrity of the habitats site.”
So now the need for appropriate assessment will not be a bar to the presumption applying. The wording in fact now allows the presumption to apply to more schemes than was the case pre People Over Wind.
The Government could have dealt with this issue before the 2018 NPPF was published. It makes the rather weak excuse: “Although some consultation responses asked for an amendment to the Framework in the light of the ruling, there was not an opportunity for all interested parties to comment at the time.” Well, why was there not even a written ministerial statement to clarify the position? I’m sure I am not the only one to have lost a planning appeal partly due to the absurd position that arose.
The government also indicates that it is “considering what other changes to regulations and guidance may be necessary following the European Court’s ruling“.
In my view MHCLG should take some credit for trying to sort out all of these issues. It is also interesting that the previous approach of avoiding making running repairs to the NPPF has been abandoned – we can soon expect NPPF version 2.1.