Court Ruling upheld 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.
How a court ruling promises a legally safe method for mitigating water pollution from housebuilding
by Ben Kochan
A High Court judgment endorsing a government agency’s advice that seeks to ensure that new housing schemes in sensitive environmental areas in south Hampshire are nitrate-neutral may help boost development in the area and is likely to have wider implications for other places where the impact of pollution on protected sites is a concern, say commentators.
In a judgment issued at the end of May, the High Court has backed advice issued by government conservation advisor Natural England on how councils in the Solent area can mitigate the harmful impacts of new homes on nitrate levels. The case involved a challenge by campaigners to a December 2019 permission by Fareham Borough Council for an eight-home scheme. It focussed on Natural England advice on nitrogen pollution in the Solent area that was used to justify the granting of permission. The ruling dismissed the challenge, and upheld the council’s housing permission.
Natural England’s initial advice, issued about two years ago to 12 local authorities in south Hampshire, stated that all new residential development within the Solent area must be “nitrogen-neutral” to comply with the Habitats Regulations and to prevent further harm to the ecologically important protected marine sites on the Solent coastline. The Habitats Regulations derive from the EU Habitats Directive and require applicants to carry out habitats assessments for development that may have harmful impacts on protected sites.
In response to the advice, some of the authorities affected stopped issuing planning permissions for new housing development that could increase nitrate levels in the rivers flowing into the Solent, while they worked on a solution that would comply with the Habitat Regulations. However, this resulted in a huge backlog of residential permissions, with consents for more than 10,000 homes put on hold, causing frustration for developers operating in the area.
In the High Court ruling, Mr Justice Jay endorsed Natural England’s approach. He disagreed with the campaigners’ arguments that the Habitats Regulations required developments not merely to offset the impact of excessive nitrates, but to improve the deteriorating condition of the protected sites. The judge pointed out that “the concept of neutrality indicates that the ambition of the [Natural England] Advice Note is limited to not making things worse“. He said that “the Habitats Directive requires member states (and now the UK through a different legal pathway) to take appropriate measures to avoid any deterioration“.
The judge also refuted criticism by the campaigners of Natural England’s use of the so-called “precautionary principle” in its advice. The campaigners argued that it was based on guesswork, rather than scientific certainty, and meant that schemes could be approved when decision-makers were uncertain about their pollution impact. Mr Justice Jay concluded that in this regard, the advice was “impeccable”, adding: “We are in the realm of the empirical sciences where uncertainty is inevitable. It is in order to meet this unavoidable uncertainty that the precautionary principle has been devised.”
However, the judge said he shared the campaigners’ concerns about the advice note’s suggestion that the average national occupancy rate of 2.4 persons per household should be used in calculating the nitrogen discharge from new housing that needs to be mitigated. The ruling called for this piece of advice to be reviewed. “If Natural England’s belief is that bespoke levels should be reserved for atypical cases, the advice note should say so and provide a brief explanation,” the judge said.
Tim Mould QC, of Landmark Chambers, who represented Fareham Borough Council, said that if the legal challenge had been successful, the councils and Natural England “would have had to reinstate the block on planning approvals for new housing proposals that could increase the discharge of nitrates into the Solent“. He said the judge had “meticulously gone through all the elements of Natural England’s advice” and – other than the issues around the calculation of the potential discharge – “did not find fault with it”.
In a statement responding to the ruling, Natural England said: “Nutrient neutrality is a concept that had not been tested in the courts until these judgments.” The agency said it was “grateful to the court for the detailed consideration and acceptance of nutrient neutrality and its advice”.
During the court hearing, Natural England said it was preparing a national version of the advice. A number of other parts of the country with protected waterways have in the past year or so found themselves in equivalent situations to south Hampshire, after receiving similar advice on mitigating the impact of new homes on nitrate levels from the government agency. In its statement, Natural England said it was “reviewing its evidence on the condition of protected sites across England”. It added: “We will be engaging with local planning authorities through July to raise awareness and understanding of the approach.”
“The judgment is relevant to other councils with protected water sites that are also subject to similar [Natural England] advice on nitrates and other nutrients including phosphates,” said Christian Silk, a director at law firm Foot Anstey. “Consents for around 25,000 homes in Herefordshire, Kent, Cornwall and Somerset are being held up because of a requirement that they are phosphates and nitrates neutral,” he said. Following the launch of the Solent legal challenge, he said developers had been holding off bringing forward schemes with mitigation measures, but were “now reassured” by the judgment.
“The judgment provides some helpful clarification for local authorities on important points relating to the application of the Habitats Regulations,” said Mike Kiely, chair of the Planning Officers Society, which represents public sector planners. “The judge confirms that responsibility for addressing harm to the natural environment does not lie with new housing proposals. This is helpful not just to those authorities trying to deal with the nitrates issue, but also for others who are seeking to address challenges created by other sources of pollution.”
Since the original advice was issued, Natural England and the local authorities in the Partnership for South Hampshire (PSH) group have developed a methodology to mitigate the impact of new housing proposals on nitrate discharge into the Solent. This is now encapsulated in revised and more detailed advice from Natural England.
“Developers can set aside part of their site as a mitigation area or purchase a credit on a site which is taken out of intense agricultural use to offset the impact of their housing development,” said Sean Woodward, the partnership’s chair. “Planning applications for around 4,300 homes are still on hold across the PSH authorities. The judgment will give the local authorities confidence that any permissions now granted, where appropriate mitigation measures are agreed, will stand up to legal challenge.”
As part of this approach, Natural England and DEFRA have been developing an online nutrient trading platform to help developers purchase the aforementioned credits from landowners. “Landowners in the Solent area have been coming forward with sites that could be set aside for mitigation,” said Grace Mitchell, an associate in the planning team at law firm Shoosmiths. “We have been negotiating credits with developers on those sites. The mitigation sites have to be set aside in perpetuity.”
Peter Home, an associate at planning consultancy Turley, which has been working with housebuilders on schemes in the Solent, said the judgment will give them confidence to take their schemes forward. “Land that could be taken out of intensive agricultural use to mitigate the impact on the particular river catchment is needed in the right locations,” he said. “There’s a good supply in the east Solent area but not so much in the west.”
David Hayward, planning policy manager at Havant Borough Council, said that “developments in some parts of south Hampshire required higher levels of mitigation because of the level of nitrates discharge from the waste water treatment works.”
Referring to the judge’s concerns about the advice note’s suggested occupancy rate, Simon Kennedy, strategic environmental planning officer at PSH, said the Solent authorities were “customising the mitigation requirement” to different kinds of development. “Clearly a hotel development produces a different level of nitrogen discharge to a large housing scheme,” he pointed out.