Comment
Solent nitrates judicial review cases: Natural England’s advice is upheld
On 28 May 2021, two important High Court Judgments were handed down. These were the first such cases to consider the robustness of Natural England’s Solent nitrates advice [1]. These linked cases concerned a site in Fareham Borough, but the Judge’s findings have great relevance across the wider Solent area and indeed in other parts of the country where nitrate or phosphate discharges caused by development are considered to be harming protected ecological sites.
In this piece, we look at the key findings of the High Court that are relevant to the Solent nitrates issue and consider the longer term implications for developers in the area.
Background
For the past two years Natural England’s advice within the Solent area has been that all new development which provides for ‘overnight stays’ must be ‘nitrogen neutral’ in order to prevent further harm to the ecologically important protected marine sites on the Solent coastline.
This advice has caused a great deal of frustration for developers in the region, and a significant backlog of housing delivery in particular. Only now are we beginning to see the first effective strategic mitigation solutions emerge that have enabled development to proceed. See our previous article covering the background to this topic here and our subsequent article on emerging mitigation solutions here.
Key findings of the High Court
The allegation with the potentially greatest consequences was that the Natural England advice was fundamentally flawed, as it only sought to ensure that developments would be nitrogen neutral, rather than seeking to address the existing deteriorating condition of the protected marine sites. The case was made that Article 6(2) of the EU Habitats Directive (which still applies through UK legislation) requires ‘appropriate steps’ to be taken to avoid harm to the protected sites.
However, the Judge ruled that this allegation missed the point of the Natural England advice, as decision makers in planning applications are precluded by the Habitat Regulations from permitting development which is environmentally harmful to the protected sites. This confirms that it is not the duty of local planning authorities, or indeed of the development industry, to address existing harm; that is clearly the responsibility of other authorities, including Natural England itself.
A related allegation centred on the ‘precautionary principle’ which seeks to ensure that any scheme for neutralising nitrogen must be certain, so that no reasonable scientific doubt remains as to the effects of the development on the protected sites. It was alleged that this effectively precluded any new development in the Solent area, as it was not possible to be completely certain that no harm would be caused. Thankfully, the Judge rejected this argument robustly, stating that the precautionary principle was devised specifically to allow processes (such as planning) to be followed in the context where scientific doubt was inevitable. In this regard, the Judge found that Natural England’s advice was “impeccable”.
One of the more specific allegations was that the 20% buffer, required by Natural England on all nitrates budget assessments, was irrational and not based on evidence. This point has been raised many times before in the context of individual applications and so it is important to note that Natural England was able to provide a robust defence of the 20% buffer, based on previous scientific research and accepted practice, such that the Judge could only conclude that it was certainly not irrational to rely on it.
In relation to the existing use of land that is proposed to off-set the nitrogen discharges of development schemes, the Judgments provide a reminder that the key test in the Natural England advice is the use that the land ‘would’ be put to if planning permission was refused and not what use it ‘could’ be put to. ‘Would’ is a more stringent test, although it remains the duty of the decision maker to apply professional judgement based on available evidence. Therefore, it is important that developers provide evidence, wherever possible, to support assertions about the land use that would result from a refusal of planning permission.
Finally, a case was made by the claimant that the figure used by the Natural England advice as the starting point for consideration of average household occupancy was irrational and not consistent with the precautionary principle. This figure of 2.4 persons per household is based on the ONS data for average occupancies across England and Wales. The Judge noted that the Natural England advice does allow for bespoke calculations, departing from this figure, but that the language appeared to envisage only reductions and not increases to the average figure. Therefore, whilst accepting that the 2.4 figure was sufficiently robust and precautionary for the case being considered, he advised that Natural England should review the evidence and consider revising the approach to allow at least for specific average figures for different sized dwellings from one to five bedrooms.
Overall, each of the claimants’ grounds relating to nitrates were rejected by the High Court. Nevertheless, the planning permission under review in the ‘Save Warsash’ case was quashed, although this was due to specific failings in the conduct of the Fareham Planning Committee and not for any reason related to nitrates.
What this means for developers in the Solent area
Although these Judgements upheld the status quo from a nitrates perspective and therefore take us no further to solving the problem, they should be positively received as they do confirm that, in areas where nutrient deposition is harming ecological sites, development may nevertheless proceed as long as it can demonstrate that it will not make the environmental harm any worse.
Although the Natural England advice is far from perfect, it is at least the application of a pragmatic response to the deterioration of the important protected marine sites that still enables development requiring overnight stays to proceed. It is important and welcome therefore, that the High Court has confirmed that the advice is correctly applying the legislation to facilitate much-needed development, where this is nitrogen neutral or better. This is important not least because the alternative scenario, whereby the key allegations of the claimants had succeeded, would have resulted in a complete and total moratorium on all residential and other development requiring overnight accommodation in the Solent area, and potentially also in other parts of the country affected by nutrients harming protected ecological sites – an unthinkable outcome!
In relation to the average household occupancy figure cited in the Natural England advice, the Judgments provide a clear signpost for Natural England to review this for the next version of the advice. We understand that work is already underway on this and whilst a graduated approach may be applied by dwelling size, it is critical that the evidence on water usage by households of different sizes is factored into the review. This will ensure that developers of larger family homes, where there are economies of scale in water usage, are not disproportionately penalised by the new guidance. We expect that the ability to make a case for different household occupancy rates (departing form the guidance figure) will continue to be allowed, but evidence to justify this will be necessary.
Although Natural England and DEFRA will be relieved at the outcome in these judicial review cases, it is important that they do not lose sight of the need to make progress on the online nutrient trading platform which is being developed by DEFRA as a national strategic mitigation solution to facilitate development in impacted areas. We understand that this project remains embryonic and whilst we acknowledge the technical, legal and other challenges involved, there is a lot at stake in terms of the thousands of desperately needed new homes that remain ‘on hold’ until appropriate strategic solutions are implemented.
For more information on nitrates in the Solent please contact Peter Home or Simon Packer.
2 June 2021
[1] The two cases are Wyatt v Fareham and Natural England [2021] EWHC 1434 (Admin) and Save Warsash v Fareham and Natural England [2021] EWHC 1435 (Admin).