A judge considers a case against Natural England’s nutritional neutrality advice
In May 2021 a case came to the High Court in which lawyers for Ronald Wyatt, chairman of Brook Avenue Residents Against Development, a local group campaigning against new development in the Fareham area, argued that councils of Natural England did not reflect the requirements of the Habitats Regulations.
As a result, his team argued that Fareham Borough Council’s approval of a planning application to build eight four to five bedroom homes on a 1.97 hectare site in Warsash, Hampshire, was unlawful.
Wyatt’s lawyers argued that Natural England’s advice failed to meet “the level of certainty” required by the Habitats Regulation and the Habitats Directive, but the judge, Mr Justice Jay, rejected that ground of argument as a fundamental misunderstanding of how the precautionary principle works.
However, in November, attorneys representing Wyatt announced that the Court of Appeals had granted leave for judicial review, in recognition that “the case has connotations beyond the local area.”
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After a day and a half of oral arguments on April 5 and 6 this year, the judge, Judge Lindbolm, said he would reserve judgment, with a written decision to be issued in due course.
Wyatt’s leave to appeal was granted on four grounds, two of which relate to whether or not Natural England’s notice complies with Articles 6(2) and 6(3) of the Habitats Directive. According to Judge Jay’s initial judgment in the case, Article 6(3) concerns the level of certainty required to ensure that a protected habitat is not adversely impacted. Article 6(2) requires that “appropriate measures” be taken to avoid the deterioration or disturbance of protected species and habitats.
When the case was first heard in May, the court also heard that Natural England was preparing a wider national opinion on nutrient neutrality, but was waiting to see the terms of the High Court’s decision before making a decision. publish.
Since then, Natural England has issued extensive nutrient neutrality advice to 73 local planning authorities (LPAs), up from 32, after the wildlife regulator revealed it had identified a further 20 protected sites which are affected by nutrient pollution.
READ MORE: MAPPED – The 74 authorities affected by Natural England’s nutrition neutral advice
As a result of the ruling, a growing number of new home applications have been put on hold across the country as councils, including Hampshire, have suspended their review of planning projects as they scramble to respond to advice .
While having big implications for boards receiving the advice for the first time, it also has an impact on boards that had already received advice and were in the process of implementing mitigation plans.
In the letter sent by Natural England to all affected APLs in March, the regulator indicated that all authorities would switch to using the updated generic nutrient neutrality methodology and updated calculators “in preference to existing methodologies. “, whether previously produced by Natural England or the APLs themselves. .