Most developers know about the “nutrient neutrality issue”. Given that an estimated 100,000 homes are currently stuck in the planning process because of it, it is deservedly a hot topic. There is, however, light at the end of the tunnel for developers. According to recent government announcements, help is on the way (see below). In the meantime, some comfort can be gained from the Court of Appeal’s judgment in R (Wyatt) v Fareham Borough Council and another [2022] EWCA Civ 983, in which the local planning authority’s application of Natural England’s guidance and its decision to grant permission for residential development withstood court scrutiny.
What is nutrient neutrality?
Development of new housing has stalled in 74 local authorities which have protected habitats sites that are in an unfavourable condition due to nutrient pollution. LPAs in the affected areas have been advised by Natural England to grant permission only if they are certain, through an “appropriate assessment” under the Habitats Regulations, that additional nutrient loads from wastewater run-off from new developments do not have an adverse effect on water quality which cannot be mitigated.
Wyatt: the facts
An outline planning application was submitted for eight dwellings on a site about 5.5km from the Solent & Southampton Water Special Protection Area, which is a European protected site. Natural England issued its technical guidance note in 2020 and therefore, as a competent authority, the council was required to carry out an appropriate assessment under the Habitats Regulations to ensure the development would not adversely affect the integrity of the SPA.
The government’s fix
- A new statutory duty on water and sewage companies to upgrade wastewater treatment works by 2030 in affected areas.
- Nutrient Mitigation Scheme to frontload investment in mitigation projects where developers can purchase “nutrient credits”. LPAs will be able to grant permission for developments which have secured the necessary nutrient credits.
Further details on both are to be announced in autumn.
Ronald Wyatt, as chair of a resident’s action group, applied for judicial review of the council’s decision to grant planning permission and failed in the High Court on all eight of his grounds. Permission was granted for him to appeal to the Court of Appeal.
One of the main questions before the court was whether the judge in the High Court was right when he held that the council had carried out its appropriate assessment lawfully. In calculating the baseline nitrogen deposition from the site, the council used Natural England’s recommended national average occupancy rate for new dwellings of 2.4 persons per dwelling and then applied a 20% “precautionary buffer”.
The claimant argued that the Natural England guidance gave the LPA a discretion to adopt a bespoke occupancy rate and, given the larger-than-average size of the proposed dwellings, a rate of 3.4 was more appropriate. He also argued the use of the 20% precautionary buffer was irrational and had no evidential basis.
Natural England was consulted on the application and also on the council’s draft appropriate assessment, and did not raise any concerns about the occupancy rate or the 20% buffer. They joined in the judicial review proceedings as an interested party in support of the LPA’s position.
The Court of Appeal agreed with the judge in the High Court and held that the council had reached a reasonable and lawful conclusion in the matter of its own exercise of evaluative judgment. It dismissed the appeal.
So what?
The court rejected the argument that a higher level of judicial scrutiny is required in relation to appropriate assessments. The Court of Appeal held that the judge had applied an appropriate standard of scrutiny, consistent with the Wednesbury judicial review principle (ie the decision was so unreasonable no reasonable council could have made it). There was no need to apply a heightened test.
The court recognised that in some respects, the claimant’s real target was the Natural England guidance to which there could be no proper challenge. The judgment reminds us that the Natural England guidance is an advisory document and not statute or mandatory; it does not create an additional legal requirement or test. It does not claim that its approach is the only means of conducting an appropriate assessment – it advises one way of undertaking the task.
On a practical level, the judgment shows it is appropriate for councils to rely on the advice of the experts, in this case an expert national agency such as Natural England. The court recognised that there was a dispute between experts on whether the use of a 20% precautionary buffer was appropriate but the main issue was that the council’s own judgment on the issue was not Wednesbury unreasonable.
The case reiterates the long-established principle that the role of the court is supervisory. It must be satisfied that the council’s own evaluative judgment was lawfully exercised and the court is not to undertake an assessment of its own.
Finally, the judgment will be helpful to councils, environmental experts and lawyers alike in that it sets out a clear summary of the principles established by case law on habitats assessments. This is particularly helpful and timely given that many more appropriate assessments will be required in the future. Whether appropriate assessment is required on post-permission approvals, reserved matters and discharge of conditions has been the subject of much legal debate in the industry. The government has brought clarity to that issue by confirming that such approvals are likely to be subject to appropriate assessment, and will update its national guidance to that effect.
Claire Dutch is partner and co-head of planning and environment at Ashurst
