The last few weeks have seen the national planning regime try to navigate the tricky tightrope between the twin aims of unlocking development and protecting the environment.
Supreme Court rules on nutrient neutrality
First, take the Supreme Court (SC) judgment in CG Fry & Son Ltd v SoS for Housing, which considered whether the requirement for an Appropriate Assessment (AA) pursuant to the Habitat Regulations could be triggered after grant of permission when a Local Planning Authority is deciding whether to grant later approvals (including discharge of conditions).
Having decided that an AA would be necessary, in the context of the Habitat Regulations, at such later consent stages where new scientific evidence emerges, the SC then decided that they didn’t extend to “Ramsar” sites (like the Somerset Levels, the affected waters here) as these are only protected by the National Planning Policy Framework (NPPF), which, as policy protections cannot override the legal rights conferred by a grant of planning permission.
This differentiation unlocked CG Fry’s development but may not unlock the difficulties for developers in other affected areas seeking to retrofit mitigation into existing schemes. Although this discrepancy of legislative application between site types is set to be short-lived, with the upcoming Planning and Infrastructure Bill (PIB) promising to extend Habitats Regulations protections to Ramsar sites.
Lords and Commons play parliamentary ping-pong with Environmental Delivery Plans
Speaking of the PIB, the Bill originally sought to enhance environmental protections and development through Environmental Delivery Plans (EDPs), which would mitigate development impacts on “environmental features” through strategic environmental enhancements. A developer could purchase “credits” from such enhancements instead of needing to provide direct mitigation for their site.
Following concerns that, despite government assurances to the contrary, this would allow development to proceed without providing proper protections, the Lords voted to reduce the application of EDPs to “nutrient neutrality, water quality, water resource or air quality”. However, on return to the Commons, members rejected the amendment and have reinstated the wider scope so that EDPs can cover a wide range of impacts, including protected species’ habitats.
This shows the extent and strength of the conflicting views and demonstrates the difficulties of achieving this balancing act. Some support the PIB as unlocking development while still protecting the environment. Others see it as overreaching and risking unintended environmental consequences.
New forests
The government has also recently announced proposals for a new national forest in the Ox-Cam corridor. With the intention to “embed nature recovery into development”, millions of trees will be planted, supporting an aspiration to create new “forest towns”. Further woodland expansion is proposed through exploring a potential Woodland Carbon Purchase Fund, which could provide up-front funding for landowners to plant woodlands.
While the details of these proposals are still to be confirmed, it will be interesting to see how the laudable aim of these new woodland regimes interacts with the developments planned for the corridor and how this will exist alongside BNG, the new EDPs and other environmental subsidy schemes to create nature-rich forests amongst the new towns.
These recent evolutions show the conflicting buffeting winds that need to be managed so that the planning system is not knocked off its tightrope. Careful balancing will hopefully lead to an enhanced environment sitting happily alongside new towns.
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