In R (on the application of Wyatt) v Fareham Borough Council and another [2022] EWCA Civ 983, the Court of Appeal has clarified the role of advisory body guidance in the planning process, in this case in relation to nutrient neutrality.
The appeal was brought on multiple grounds, including the assertion that the council failed to meet its requirement to make an “appropriate assessment” of the implications the development may have on conservation objectives.
Natural England published an advice note in June 2020 entitled Advice on Achieving Nutrient Neutrality for New Development in the Solent Region as a rise in nitrates could impact species and habitats in the Solent. This included a method for calculating how nutrient neutrality could be achieved using the “best scientific knowledge”. To calculate the potential population increase arising from a development, the advice provided a formula using the average national occupancy rate of 2.4 unless evidence supported a bespoke calculation.
The planning application included nitrates mitigation measures and used the 2.4 occupancy rate. NE approved the nitrogen budget and planning permission for eight dwellings was granted.
Regulation 63 of the Conservation and Habitats and Species Regulations 2017 states that an authority can only grant planning permission if, following an appropriate assessment, it is satisfied that the proposed development will not adversely impact the integrity of a European protected site.
In this case, the appellant argued that the council failed to make an appropriate assessment under Regulation 63 owing to scientific uncertainty around the nitrates calculations. They argued that only a bespoke figure, rather than the national average occupancy rate, could lead to a decision based on the “best scientific knowledge” as recommended by NE.
It was held that the duty imposed by Regulation 63 lies with decision-makers and not with the courts. So long as the decision-maker understood their role, the court will only intervene if the decision was manifestly unreasonable. The court decided that the council had considered the impact of the development on the Solent and this was evidenced in the officer’s report. The use of average figures will sometimes be inappropriate, but that is a matter of judgment for the decision-maker.
It also held that a decision-maker does not need to conclude with absolute certainty that there will be no adverse impacts, and they are entitled to rely on the advice of an expert agency, such as NE. A case-specific assessment should be carried out and expert advice can guide the findings, but it does not need to be prescriptively followed.
This judgment is a reminder of the role that advisory bodies and their guidance play. While they may provide advice, this does not create any additional legal requirements. However, decision-makers should be mindful not to totally ignore such guidance without clear justification, as this risks their decision being found unreasonable or irrational.
With regard to nutrient neutrality, further guidance was published by NE in March 2022, and the government announced plans for a long-term solution to nutrient pollution on 20 July 2022.
Elizabeth Mutter is a solicitor in the planning and environment team at Irwin Mitchell