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With nutrient neutrality again heading to the High Court next week, I have been thinking again about what an unnecessary roadblock it, and “water neutrality”, is to development. The issue in CG Fry & Son Ltd v Secretary of State is in relation to the applicability of the Habitats Regulations to approvals made under conditions, and is therefore concerned with a particularly frustrating part of the roadblock – i.e. to those developments where permission has already been granted. The problem is, of course, far more pervasive. Whilst I would not answer the problem before the High Court in the way that the claimant in that case would like, there are certainly some answers out there.
First, a lawyer’s solution. The language of the Habitats Regulations, and the existing case law, seem to me to firmly support the view that a “neutrality” issue can properly be dealt with by condition. Regulation 70(2) and 70(3) expressly contemplate the use of conditions to ensure that likely adverse effects can be avoided. “Grampian”-style conditions are well-suited to this function, and provide the necessary certainty for Habitats Regulations purposes that adverse effects will be avoided. Although some Inspectors have found against such conditions, I cannot see any legal impediment to them. This approach only kicks the can down the road – since a no adverse effect conclusion will still need to be reached at some point - but it might do so in a way which is useful to many developers who know that the problem can be cracked before occupation, but need a consent now.
Second, sometimes even the most creative lawyers must turn to the lawmakers for the answer. The most obvious solution to me is to amend the Habitats Regulations, which can be done very quickly should there be a desire to do so. There might be a lot of sense in taking issue out of the planning sphere and leaving it to the regulation of the sewage works, or water abstractions, that are the root cause of the problem.
As well as being a more principled approach, it would avoid the true cost of our poor use of water resources being borne by those who do not have a home, when in fact the problem flows (literally) from existing sewerage and water supply connections. There would be no legal gap in environmental protection, since all relevant sewerage works and water abstractions are regulated and subject to the Habitats Regulations themselves. There may be a practical gap given well-documented compliance issues, but that is not sensibly for housebuilders to solve. I do not think much labour is required to do this: I’ve had a crack myself below. A similar provision could be made in respect of development plans (regulations 105).
The neutrality roadblock not only bears on the delivery of much needed homes and on the protection of designated sites, but also on the credibility of the planning system. It is the great crested newt of the 2020s: a real environmental issue, the remedy for which is unlikely to lie in the planning for new homes. Unless we grapple with it, the planning system becomes the focus of anger or of mirth, and our environment is no richer for it.
Suggested Conservation of Habitats and Species (Amendment) Regulations 20XX
After regulation 70, add -
70A Grant of planning permission: special cases
(1) Where the assessment provisions apply in the circumstances set out in regulation 70 and:
(a) the competent authority cannot ascertain that the grant of planning permission will not adversely affect the integrity of the European site or the European offshore marine site (as the case may be); and
(b) the reason for that conclusion is solely in relation to the effect on the European site or the European offshore marine site (as the case may be) from a relevant regulated facility
planning permission may be granted notwithstanding that conclusion and without consideration of the matters set out in regulation 64.
(2) In paragraph (1) “relevant regulated facility” means a facility for the abstraction of water to which regulation 102 applies, or a facility for the treatment of sewage where any water discharge activity from that facility is, or would be, governed by an environmental permit under the Environmental Permitting (England and Wales) Regulations 2016.
70B Approval of reserved matters and approvals under planning conditions
(1) Where the assessment provisions apply to an approval of reserved matters or an approval under planning conditions within the meaning of articles 6 and 27 respectively of articles 6 and 27 respectively of the Town and Country Planning (Development Management Procedure) (England) Order 2015/595 and:
(a) the competent authority cannot ascertain that the grant of planning permission will not adversely affect the integrity of the European site or the European offshore marine site (as the case may be); and
(b) the reason for that conclusion is solely in relation to the effect on the European site or the European offshore marine site (as the case may be) from a relevant regulated facility
the approval may be given notwithstanding that conclusion and without consideration of the matters set out in regulation 64.
(2) In paragraph (1) “relevant regulated facility” has the meaning given to it in regulation 70A(2).
Richard Turney is the author of this article.
