Harriet Grimes
Posted on 7 Jun 2021

Planning and nitrate neutrality: the High Court backs Natural England's guidance

As discussed in the article published last month Planning & nitrate neutrality: Legal challenge to Natural England's guidance the High Court granted permission for the judicial review of a planning consent granted in August 2020 by Fareham Borough Council (the "Council").

Natural England's guidance and the EU Habitats Directive

R (Save Warsash and the Western Wards) v Fareham Borough Council (CO/3397/2020) was heard consecutively with R (Brook Avenue Residents Against Development) v Fareham Borough Council (CO/4168/2020) as both raised issues about the validity of guidance issued by Natural England (the "Guidance")

The Guidance issued to the Council following the European Court of Justice's decision in 2018 Dutch Nitrogen Case, advised that planning permissions should only be granted in the Solent region if the development is considered to be 'nutrient neutral' preventing protected sites from being harmed by pollution generated by new developments.

One of the grounds advanced by the claimant was that the Guidance did not meet the 'standard of certainty' that is required by Articles 6(2) and 6(2) of the EU Habitats Directive (92/43/EEC) (which forms part of EU retained law following Brexit) due to there being a lack of scientific certainty for the Council to base its decision on when granting planning consents. This point led the claimant to contend that the Council had infringed the so-called 'precautionary principle'.

Judgment

In his judgment dated 28 May 2021, Mr Justice Jay dismissed the claimant's application for judicial review and said it was based on a misunderstanding of the precautionary principle. The judge said that "that is the whole point of the precautionary principle: the uncertainty is addressed by applying precautionary rates to variables and, in that manner, reasonable scientific certainty as to the absence of a predicated adverse outcome will be achieved."

The Judge held that the Guidance, which advises councils to apply precautionary rates to variables when calculating nutrient budgets and to add a precautionary buffer to the total nitrogen calculated for developments, was "impeccable in all material respects". Consequently, the judge found that "by requiring the competent authority effectively to rule out, to a very high standard, the possibility of relevant harm, the requirement… of the Habitats Directive is fully satisfied."

It is anticipated that Natural England will publish national advice once it has had the opportunity to consider the terms of this judgment.