The basics #15 - rivers, embargoes and Brexit
Lace up those walking boots, #planoraks. Pack your sandwiches. Maybe a banana. Definitely a good camera. Pray for decent weather. We’re off on a trip. Off up to one of the jewels in the Peak District’s crown: glorious Buxton. Home of the magnificent Buxton Opera House, an Edwardian masterpiece. Site of a certain planning law blogger’s repeated and unsuccessful entries into public speaking competitions between the ages of 8-12.
And - a little more importantly - since as long ago as the Romans, Buxton has been known far and wide for boasting some of the purest water our country has to offer.
As we trek together out into the Jane Eyre-style moorlands, you may notice a vast expanse known as Axe Edge. From which - blink and you’ll miss it - springs a tiny stream of water. A stream which grows, picks up speed, and ends up flowing down into Buxton itself. From which it winds off into the heart of the Peak District towards Bakewell by which time our stream has grown into the mighty River Wye. In the end, the Wye joins the Derwent, then the River Trent, then on further to the Humber from where it finally spills out into the North Sea.
The Wye is famous for those gorgeous limestone uplands which frame some jaw-droppingly spectacular views. And it’s home to some important flora and fauna - the area falls within the “Wye Valley Site of Special Scientific Interest” and the “Peak District Dales Special Area of Conservation” designated by Natural England.
But hold your breath, look under the surface, and there are problems clouding up the River Wye. Problems many of our rivers share. In a nutshell: too many nutrients. In particular, in this case, too much phosphorous. And what’s the effect of too much phosphorous? Well, in the River Wye, Natural England spells it out:
“The occurrence of excessive nutrients in the waterbody can lead to a loss of suitable substrate condition for bullhead and lamprey as a result of benthic algal growth and associated enhanced siltation.”
Translated: fish in the River Wye are suffering. Because excess phosphates lead to excess algae (aka “eutrophication” for the true aficionados), which can deplete oxygen levels in the river, which can add up to terrible news for fish, insects and plants.
What is the cause of the all these nutrients in the water? The primary cause, by some distance, is agriculture, i.e. nitrate-rich fertiliser and animal waste leaching from farmland soils down into the watercourses, along with wastewater treatment works which require upgrading after decades of chronic under-investment by water companies.
Now, this is a problem for the River Wye. But similar excesses of nutrients - nitrates and/or phosphorous - are causing problems in protected watercourses all over England. In fact, 74 local authorities in England from Cornwall to Northumberland are now affected by the catchment areas Natural England has drawn around these protected areas:
All very interesting. But what does that have to do with #planoraks? In most ways that matter, high levels of nutrients in our rivers have (or at least, should have) nothing to do with the town and country planning system. Again, it’s mostly the fault of farmers and water companies. A job for environmental regulators like the Environment Agency. Right?
Well, not quite… just look at the headlines. We seem to have arrived at an effective embargo of planning permission for (among other things) over 100,000 new homes as a result of nutrients in our rivers, at a cost of £30 billion to our economy. 😬.
What on earth is going on? How did we get here? And what did the High Court have to say about it last week?
Where to begin? Perhaps with a bit of source material:
Natural England’s March 2022 letter which is at the root of much of this.
R (Wyatt) v Fareham Borough Council [2022] EWCA Civ 983 where the Court of Appeal summarised the background and relevant law.
The key legislation: the Habitats Directive, and the Habitats Regulations.
DEFRA’s guidance on nutrient neutrality.
A helpful summary of where we are from the Planning Advisory Service.
The HBF / Lichfields report which spells out the epic costs of Natural England’s approach to nutrient neutrality on housebuilding.
Last week’s High Court case - C G Fry & Son Ltd v Secretary of State for Levelling Up Housing and Communities [2023] EWHC 1622. More of which below.
Right. Let’s start with the basics. Here are 5 easily digestible pointers:
The basic legal requirement is for competent authorities (e.g. local planning authorities) to undertake an “appropriate assessment” before granting any “consent or permission” for a “plan or project” which is likely to have a significant effect on a European site (e.g. Special Protection Areas (SPAs) and Special Areas of Conservation (SACs) designated under the Habitat Regulations) to consider the project’s implications on the site's conservation objectives. In this topsy-turvy world, significant effects are “likely” in any case where they cannot definitively be ruled out. Mmm. Not exactly how you or I would interpret the word “likely”. But then again, you and I aren’t judges at the Court of Justice of the European Union. Well. I’m not, anyway.
Once this appropriate assessment’s been done, the competent authority can grant consent for one of these plans or projects. But they can only do that once they have concluded that the project will not adversely affect the integrity of the European site. Not “may not”. Will not. No ifs, buts or maybes.
This sets a very high bar for competent authorities to meet. In the Dutch Nitrogen Case in 2018, the Court of Justice of the European Union decided that the appropriate assessment should contain “precise and definitive findings and conclusions” which show 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”.
That doesn’t require absolute 100% cast-iron certainty of no adverse effects. But it’s close! This high standard of proof is an embodiment of the “precautionary principle” which threads through lots of European environmental law.
In addressing that high bar, a competent authority is expected to give significant weight to the advice of any "expert national agency" with relevant expertise in the sphere of nature conservation e.g. Natural England. Way back in 2020, Natural England were advising against the grant of planning permissions in the Solent region until the nutrients issue affecting that part of the country could be resolved. In March 2022, Natural England produced one in a sequence of letters which confirmed that lots and lots of Habitats sites are in unfavourable condition due to elevated nutrient levels, and so advised local planning authorities across an enormous series of catchment areas nation-wide not to grant planning permission unless they could be satisfied that no adverse effects would arise. Which means mitigation may be required, i.e. through applicants demonstrating “nutrient neutrality”. What’s that? Nutrient neutrality involves quantifying a “nutrient budget” for both phosphorous and nitrogen, and then using either on or off-site mitigation measures to show that your scheme will not cause any net harm to the protected sites - see some guidance from Natural England here. Measures might include e.g. creating new wetlands, retrofitting sustainable urban drainage systems and making arable farmland fallow to reduce nitrates. But in many authorities, there simply is no standard nutrient neutrality strategy. Or no strategy at all. Very often, nutrient neutrality simply cannot yet be achieved - either viably, or at all.
So here’s the problem. New houses bring with them wastewater and sewage. That leads to nutrient pollution. Overall, the Government accepts that nutrient pollution from new housing developments is only a small factor in the bigger picture. Nonetheless, the European caselaw requires no harm. A little bit of harm in the grand scheme of things isn’t good enough. Natural England’s advice to local planning authorities is that new housing developments should be refused unless they’re nutrient neutral. But there is normally not yet any practical or viable way of actually securing nutrient neutrality.
So we’re stuck. Catch-22 style. The major culprits for nutrient pollution - e.g. farmers and water companies - go on pumping nutrients into our rivers. Algae blooms. Fish die. Housing needs mount. But the legal framework as interpreted by the lead statutory consultee in this area effectively blocks any new planning permissions for homes across large swathes of England. There’s a technical term for a situation like this: a total, abject mess. And that’s being polite. We have, folks, yet another example the planning system being lumbered with problems which it neither created nor has the power to solve.
In the meantime, we wait. We wait for the measures in the 2022 written ministerial statement to actually happen. For provisions in the draft Levelling Up Bill which would require water companies to upgrade their wastewater treatment works to become law. We wait for strategic mitigation solutions to be signed off by Natural England. We wait for the Environment Agency to regulate farmers more actively to prevent agricultural run-off. We wait. And wait. As months turn into years.
Recently, a housebuilder from the West Country called CG Fry & Son became sick of waiting. In 2015, it had been granted a planning permission for, among other things, 650 homes on a site in Wellington, Somerset. Reserved matters approval for 190 of those homes was secured in 2020. In 2021, CG Fry tried to discharge a number of conditions attached to that reserved matters approval. The conditions related to specific points - they didn’t go to the principle of the development. But the Council withheld approval on the basis that a full appropriate assessment - of the whole scheme - would be required to test the scheme’s impacts on the Somerset Levels and Moors Ramsar Site. The refusal was appealed to the Planning Inspectorate. The appeal was dismissed. That decision was challenged in the High Court.
The challenge failed. There are already discussions of an appeal against that judgment to a higher court, so watch this space. But along the way the Planning Court has clarified a couple of key points:
Albeit we have now (power to the people) Brexited, the effect of the European Union (Withdrawal) Act 2018 is that the European Habitats Directive continues to have direct effect in domestic law. Along with the domestic Habitats Regulations which implement the Directive. And the range of pre-Brexit domestic and European caselaw which interpreted the Directive, and which set the high bar eliminating doubt that we looked at above, is still with us.
Read in light of the Directive and this European caselaw, and applying what the court called a “strict precautionary approach”, the Habitats Regulations still - i.e. even post-Brexit - require competent authorities to conduct appropriate assessments not just of the original decision to grant planning permission, but also in relation to subsequent decisions e.g. to discharge pre-commencement conditions or approve reserved matters. And those assessments still have to eliminate any reasonable scientific doubt of any adverse effects before consent can be granted.
The cost of the High Court’s decision - so far as the HBF is concerned - is the ability to develop some 44,000 homes which already have planning permission. But cannot be developed because there is no mitigation solution to achieve nutrient neutrality.
And we haven’t even gotten to other delightful embargoes Natural England is exercising over the planning system at the moment in relation to e.g. water neutrality, or recreational impacts on the Chilterns Beechwoods SAC. All for other posts. But it’s worth reflecting on what a strange situation we’re in. When one reasonably niche environmental regulator has managed in effect - whether intentionally or not - to take over the planning system.
Now that’s what I call taking back control.
Enjoy the tennis, #planoraks (I would’ve said enjoy the cricket, but you may still be reeling from last week). Here’s hoping rain doesn’t stop play too often. Here’s also hoping, as more and more local plan exercises stall all over England, that the Government gets on and actually responds to that consultation on amendments to national planning policy. Tick tock. Meanwhile, stay well #planoraks. And - it certainly isn’t easy - but whatever else you do, do your level best to #keeponplanning.
