Planning & nitrate neutrality: Legal challenge to Natural England's guidance

An application has been granted permission on all grounds for the judicial review of a planning consent granted in August 2020 by Fareham Borough Council. The consent related to a housing development of 6 detached residential units in the Solent region (application reference P/18/0884/FP).

The claimants challenged the validity of the Council's application of Natural England's guidance in relation to nitrate neutrality and of the guidance itself, when considered in accordance with the principles governing application of the EU Habitats Directive.

R (Save Warsash and the Western Wards) v Fareham Borough Council (CO/3397/2020) is due to be heard on 11-13 May 2021 consecutively with R (Brook Avenue Residents Against Development) v Fareham Borough Council (CO/4168/2020), which also raises issues about the guidance issued by Natural England.

Background

In 2018 a landmark case ruling known as the "Dutch N" was made by the European Court of Justice and this ruling informs the way in which relevant legislation is applied to pollution-related matters, in particular, nitrogen and phosphates, and the limits placed on them to stop them from polluting the wider environment. That relevant legislation is contained in Articles 6(2) and 6(3) of the EU Habitats Directive (92/43/EEC), as implemented by the Conservation of Habitats and Species Regulations 2017 (SI 2017/1012).

As a result, in 2019 Natural England issued guidance to all relevant local planning authorities regarding the implications of the Dutch N decision in relation to planning applications that may affect protected sites under environmental legislation. In relation to the Solent, the primary concern was the high input levels of nitrogen and phosphorus into the Solent’s water environment causing eutrophication, leading to increased algae growth.

The Guidance

Natural England advised all local planning authorities in the Solent region that new planning permissions should only be granted if they can demonstrate ‘nitrate neutrality’.  This led to a moratorim on all new housing development, any new overnight accommodation such as hotel and student accommodation, and major tourist facilities within the region that would discharge into the Solent, whether directly, or indirectly via one of its river catchments. Natural England issued revised advice that set out a methodology to calculate a total nitrogen load for a proposed development, which must then be offset. In practice, the guidance requires all new housing developments in the Solent to secure an in-perpetuity mechanism to offset nitrates.

The solution to achieve nutrient neutral development and the science behind it is a complicated issue. In practice, mitigation options are now being used by some local authorities. These options include financial contributions being paid to third parties, who use the funds to secure agricultural land and take this out of agricultural use, and the creation of suitable alternative natural greenspace (SANG) mechanisms and 'nitrate credits'.

Judicial Review

In respect of the judicial review claim brought by Save Warsash, an order of the High Court was made on 7 December 2020 refusing permission to bring the judicial review claim on all 8 grounds. The Court's view was that officers had correctly interpreted and applied the Natural England guidance on achieving nitrate neutrality, had properly advised the Planning Committee, and that the Planning Committee had made a lawful decision.

Save Warsash successfully asked the Court in December 2020 to reconsider its claim. The outcome of the hearing (11-13 May 2021) is eagerly anticipated to provide clarification on the issue to developers and local authorities alike.