Environmental Law and Development - Birmingham

Environmental Law and Development How to Navigate Between a Rock and a Hard Place

Wednesday 29th November 2023 No5 Barristers’ Chambers Fountain Court Steelhouse Lane Birmingham B4 6DR

Planning and Environmental Law Seminar 29th November 2023 No5 Barristers’ Chambers, Birmingham Contents Section 1 Members List - 1 Programme – 2 Section 2 – 3 Welcome Richard Kimblin KC, No5 Barristers’ Chambers Section 3 – 7 The Race to Net Zero Sioned Davies, No5 Barristers’ Chambers Section 4 – 16 Biodiversity Net Gain James Corbet Burcher, No5 Barristers’ Chambers Section 5 – 38 Nutrient Neutrality Christian Hawley, No5 Barristers’ Chambers Section 6 – 48 Environmental Impact Assessment Odette Chalaby, No5 Barristers’ Chambers Section 7 – 77 Renewables Thea Osmund-Smith, No5 Barristers’ Chambers

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13ARRISTERS CHAMBERS

Members List Planning and Environtnent Group To view or download members CVs please visit NoS.com Peter Goatley KC (Silk: 2020 Call: 1992)

Leanne Buckley-Thompson (2009)

Richard Kimblin KC (Silk: 2016 Call: 1998)

Thea Osmund-Smith (2010)

Richard Humphreys KC (Silk: 2006 Call: 1986)

James Corbet Burcher (2011)

Paul Cairnes KC (Silk: 2016 Call: 1980)

Christian Hawley (2013)

Christopher Young KC (Silk: 2018 Call: 1997)

Howard Leithead (2014)

Philip Rule KC (Silk: 2023 Call: 2001)

Jessica Allen (2019)

Hugh Richards (1992)

Sioned Davies (2019)

Satnam Choongh (1994)

Odette Chalaby (2021)

Tim Sheppard (1995)

Daniel Henderson (2021)

Scott Stemp (2000)

Clive Newberry KC* (Silk: 1993 Call: 1978)

Jack Smyth (2007)

Douglas Armstrong KC* (1990)

Rowena Meager (2007)

Timothy Jones* (1975) Chief Executive & Director of Clerking Tony McDaid

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Practice Director Andrew Bisbey

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No5 Barristers' Chambers

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Tel: 0121 606 6195 Email: planning@noS.com

NoS Barristers' Chambers provides services on an equal opportunity basis and encourages attendance by those with disabilities.

Planning and Environmental Law Seminar 29th November 2023 No5 Barristers Chambers, Birmingham

Programme 1 CPD 9:30 – 10:00

Registration and Refreshments

10:00 – 10:10

Welcome – Richard Kimblin KC, No5 Barristers’ Chambers

10:10 – 10:30

The Race to Net Zero – Sioned Davies, No5 Barristers’ Chambers

10:30 – 10:50

Biodiversity Net Gain – James Corbet Burcher, No5 Barristers’ Chambers

10:50 – 11:10

Nutrient Neutrality – Christian Hawley, No5 Barristers’ Chambers

11:10 – 11:30

Environmental Impact Assessment – Odette Chalaby, No5 Barristers’ Chambers

11:30 – 11:50

Renewables – Thea Osmund-Smith, No5 Barristers’ Chambers

11:50 – 12:00

Q&A and Panel Discussion

12:00 Onwards

Lunch

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Richard Kimblin KC Environmental Law

Year of Call: 1998 | Year of Silk: 2016 Email Clerks: environmental@no5.com

Richard Kimblin QC is described in the Legal 500 as a ‘Tier 1’ silk: “An exceptional talent with a formidable intellect.” He has been hands-on and actively engaged in resolving legal and scientific issues in the environment for over thirty five years, starting with gold mines in Australia, a PhD in getting water to London and helping the European Union align environmental laws.

He has advised and appeared on behalf four government departments on environmental law as applied to energy and transport infrastructure, habitats and species conservation, water resources and environmental assessment. He regularly advises on these complex issues in the development and forward planning contexts. Necessarily, he is very experienced in applying retained European law to environmental problems, including waste, water resources, wastewater, air quality and habitats.

Richard has always undertaken regular appearances to prosecute and defend environmental offences. He has appeared in over a hundred trials and sentencing hearings. He has a detailed understanding of the application of the sentencing regime and was the author of the UKELA consultation response to the definitive Guideline. Richard was a Trustee of the United Kingdom Environmental Law Association for 10 years and was its Chair for two years.

HABITATS & SPECIES Advisory, planning and litigation work in both England and Wales: Pesticides licensing and environmental effects; appeals against review of consents under the Habitats Regulations; very significant nitrates/phosphates and eutrophication experience across England and Wales in terms of both advisory and court work.

ENVIRONMENTAL ASSESSMENT Richard has appeared in many of the cases which frame the way in which environmental assessment is undertaken, whether as EIA, SEA or AA. He has a deep knowledge of the directives, the retained EU law, the guidance and the practical issues as they arise in both environmental and planning appeals.

CLIMATE, AIR AND ENERGY Richard has been examining and cross-examining on these issues since before either ‘net zero’ or ‘climate litigation’ were coined as terms, in respect of renewable and non-renewable schemes, energy projects (coal, oil, fracking) and ‘big five’ industries such as cement. He successfully argued the first ‘Scope 3’ case on behalf of BEIS. He appeared in the Court of Appeal to clarify the scope of NPPF policy on air quality impacts.

WASTE Advising waste authorities and waste operators of all sizes from the very largest plc to one-man (and on one occasion, one-woman) operators on permitting, exemptions, WRAP, and particularly on environmental enforcement by notice, prosecution and civil sanctions.

WATER RESOURCES AND WASTEWATER Most of Richard’s work in this area is for statutory undertakers in respect of water and wastewater issues, often in the enforcement context. He both prosecutes (typically trade effluent consent cases) and defends (typically EPR and SAFA offences).

STATUTORY NUISANCE As a junior he was frequently instructed in noise and odour abatement cases and still takes on technically complex appeals.

ENVIRONMENTAL PROTEST Richard is currently instructed in respect of ‘persons unknown’ injunctions for a cohort of appeals which seek to clarify

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the scope and approach to interim and final orders against persons unknown.

Recommendations Ranked as a Tier 1 Silk in Planning and Environment.

Legal 500 2023 - Planning and Environment “He’s absolutely top-class and is one of the best planning silks, not just in terms of his advocacy but also case management and strategy.” “He is a very clear thinker, gives sound advice and is a fantastic advocate.”

Chambers UK 2022 - Planning “He is an exceptional talent and he is in a league of his own. He always gets to the heart of a matter quickly and delivers concise reasoned opinions and advice.” “In terms of a QC who I would want for any knotty areas of law, I would think of him immediately to unpick and explain them succinctly.”

Chambers UK 2022 - Environment "An extremely clever advocate with a very succinct academic style." "A thoughtful advocate." Chambers UK 2021 - Planning “He is a very focused advocate and very committed to his clients.” “He is approachable and he really looks after the client and he takes time to understand them.”

Chambers UK 2021 - Environment “A well-rounded and commercially astute barrister.”

Legal 500 2021 - Planning and Environment "He is a go-to silk – absolutely first class." "His work in the courtroom is fantastic, but it is his work outside the courtroom that makes him one of the best – it is his attention to detail and the fact that he always keeps an eye on how to achieve the overall result." Chambers UK 2020 - Environment

Notable Cases Planning Policy and Decision Making He has appeared in many of the leading cases which clarify and define important planning policy areas, and indeed the principal decision making framework. Some of those are: Re York Potash Ltd [2018] EWHC 3114 (Ch) Application under the Mines Working Facilities and Support Act 1966 - a novel application, securing subsurface rights in connection with the winning of potash Maximum Networks Ltd v Secretary of State for Communities and Local Government [2018] EWHC 1933 What is a valid application and appeal, and what is the discretion which PINS enjoys in determining validity?

R (Holder) Gedling BC [2018] EWCA Civ 214 Onshore wind - the meaning of national policy on acceptability.

JS Bloor (Wilmslow) Ltd v Homes and Communities Agency [2017] UKSC 12; [2018] 1 All ER 817 R (oao) Watermead Parish Council v Aylesbury Vale DC [2017] In which he appeared for the Claimant in a case dealing with flood risk policy and the presumption in favour of sustainable development.

Save Britain’s Heritage v Liverpool CC and Neptune Developments [2016] EWCA Civ 806 World Heritage Sites; National Planning Practice Guidance; successfully appearing for the interested party, the developer.

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BDW v Secretary of State for Communities and Local Government [2016] An important Court of Appeal summary and explanation of the practical application of s38(6) Planning and Compulsory Purchase Act 2004 Redhill Aerodrome Ltd v Secretary of State for Communities and Local Government [2014] EWCA Civ 1386; [2015] JPL 416 A key Court of Appeal judgment on Green Belt policy, particularly as to very special circumstances Turner v Secretary of State for Communities and Local Government [2016] Another key Court of Appeal judgment on Green Belt policy, particularly as to the definition and assessment of ‘openness’ Timmins v Gedling BC [2015] EWCA Civ 10; [2015] 2 P and CR 12 A further key Court of Appeal judgment on the scope of exceptions to inappropriate development; a judgment which has now been acknowledged by amendment to the NPPF to add material changes of use of land to the list at §146.

Daventry District Council v Secretary of State for Communities and Local Government and Gladman Developments [2016] In which he appeared for the interested party in a case on the weight to be given to policies for the supply of housing land; para 215 NPPF; paras 47 and 49 NPPF. R(oao) Hampton Bishop Parish Council v Herefordshire Council and Bloor Homes Limited [2014] EWCA Civ 878 A leading case in the Court of Appeal on the application of Section 38(6) of the 2004 Act in which he appeared for the local authority.

Vicente v Secretary of State for Communities and Local Government [2014] EWCA Civ 1555 Local planning authorities; Local plans; Planning inspectors; Planning permission; Procedural irregularity; Unfair conduct San Vicente v Secretary of State for Communities and Local Government [2012] EWHC 3585; [2013] EWHC 2713; [2013] EWCA Civ 817 Procedure in appeals by hearing; amendment of statements of case; civil procedure rules Distinctive Properties v Secretary of State for Communities and Local Government [2016] Tree Replacement Notices, meaning of ‘tree’ – in which he appeared for the Secretary of State at first instance and in the Court of Appeal Infrastructure/DCOs Richard Kimblin has long experience of major infrastructure schemes from canals to motorways, including significant DCO work and Parliamentary drafting: Power stations; Wind farms and related infrastructure (onshore and offshore); Gas storage; Minerals schemes including ROMPS, extensions. Eg: Whitby v Secretary of State for Transport [2016] EWCA Civ 444 – Northern Hub, Transport and Works Act Orders; Ordsall Chord between Manchester Stations; heritage effects; Mid-Wales - a 27 turbine scheme in the context of conjoined s36 Electricity Act inquiries in respect of 5 sites and related grid connection works. This was the largest and longest such inquiry for many years; R (oao) Gate v Secretary of State for Transport [2013] EWHC 2973 – the first JR re an NSIP consent; the M6-Heysham link road: development consent orders; highways; nationally significant infrastructure; habitats; protected species; alternatives; MYG – a DCO in Wales, with a positive recommendation from the Inspector, refusal from the Secretary of State and subsequent judicial review on habitats regulations issues; Hemswell - the first scheme dismissed on the basis of the WMS on onshore wind; Dorset wind farm (Silton) - 4 turbines in the setting of an AONB; 4 week inquiry covering significant landscape, cultural heritage, noise and socio-economic evidence (APP/N1215/A/11/2160839); Dugeon grid connection - onshore 45 km cable route and substation inquiries for 560 MW of renewable energy(APP/Y2620/A/12/2170245) – see also Dudgeon Offshore Wind v Secretary of State for Energy and Climate Change and Secretary of State for Communities and Local Government (infrastructure; wind energy; alternatives) [2012] EWHC 861; FCC Environment v Secretary of State for Communities and Local Government [2014] EWHC 2035 (Admin) Error of fact; Local authorities; Planning inspectors; Planning permission; Wind turbines; R (oao) Holder v Gedling Borough Council [2014] EWCA Civ 599 - material considerations in energy proposals; Jarrett v Secretary of State for Communities and Local Government [2012] EWHC 3642 - onshore wind energy; development plan policies for renewable energy; R (oao) Webb v Herefordshire Council [2013] EWHC 1850 - onshore wind energy; protected species; EIA Environmental Litigation Richard has been instructed in more than 100 environmental and planning prosecutions. He advises on all aspects of litigation in planning, environmental and regulatory contexts. He is also called upon to advise in several niche areas: mines working facilities and support act matters; Part IIA EPA; WIA 1991 infrastructure issues for developers and undertakers. Prior to his call to the bar, Richard researched the use of groundwater storage for London (which is now an operational scheme and the basis of his PhD thesis), undertook EIA work on schemes such as the channel tunnel rail link and did comparative study of domestic European laws for the European Commission. Friends of the Earth v DEFRA

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[2015] – neonicitinoids; bees; Commission Regulations on plant protection products; Seiont etc Anglers v Natural Resources Wales [2015] – Environmental Liability Directive, waste water discharge; appeal to be heard on 25/26 May 2016 Ashdown Forest LLP v Secretary of State for Communities and Local Government and Wealden DC [2014] EWHC 406 (Admin) - lawfulness of development plans affected by SAC/SPA and the uncertainty in assessing those impacts; Abbottskerswell PC v Teignbrigdge DC and SSCLG [2014] EWHC 4166 (Admin). Walker and Son (Hauliers) Ltd v Environment Agency Court of Appeal (Criminal Division) [2014] EWCA Crim 100 [2014] 4 All E.R. 825; [2014] P.T.S.R. 929; [2014] 1 Cr. App. R. 30; [2014] Env. L.R. 22; [2014] L.L.R. 625 Criminal law; Environment; Burden of proof; Environmental offences; Environmental permits; Knowledge; Sufficiency of evidence; R (oao) Gilbert v Secretary of State for Communities and Local Government [2014] EWHC 1952 (Admin) Environmental impact assessments; Noise; Precautionary principle; Screening directions; R (oao) Enstone Society v West Oxon District Council [2009] EWCA Civ 1555 (noise; motor sport; Court of Appeal) R (oao) Wye Valley Action Group ex p Herefordshire Council [2010] Env LR 18 (polytunnels EIA; Habitats Regulations) [2009]; Court of Appeal [2011] EWCA Civ 20 Planning Enforcement Allsop v Derbyshire Dales DC [2013] EWHC 3562 Div Court (the first of only two cases on s215 notices) R (oao) Altunkaynak v Northamptonshire Justices [2012] EWHC 174 (A3 unrestricted permission; breach of EN; abuse of process) Staffordshire County Council v Challinor and Anr [2008] JPL,. 392 (effect of certificate of lawful use in subsequent enforcement proceedings)

Memberships PEBA

UKELA

Qualifications BSc Royal Society Western European Fellow

PhD

Example Publications The Interpretation of Planning Policy after Tesco [2012], 9, 1045 – 1052, - Journal of Planning and Environmental Law (Richard Kimblin, Ian Dove QC, Kaitlin Davies)

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Sioned Davies Environmental Law

Year of Call: 2019 Email Clerks: environmental@no5.com

Planning Sioned has gained a broad range of planning and infrastructure experience, including at hearings, inquiries, call-ins and in the High Court, both in a led and unled capacity. This has included acting for and advising a wide range of clients including residential, commercial, energy, minerals and logistics developers, national and local government, the Welsh Ministers, and other interested parties.

Recent highlights have included: - Acting as sole counsel for Westminster City Council in the two-week inquiry into the Secretary of State’s call-in of the application for the redevelopment of 458 Oxford Street, M&S’ flagship store. Key issues included heritage impact, and whole life carbon assessment.

- Acting as junior counsel a wide range of successful residential appeals including across London, the south east, south west, and midlands and in areas with particular planning constraints including in Green Belt and AONB. Key issues have included housing land supply, heritage, landscape, affordable housing and planning obligations.

- Acting as junior counsel in a 9- day hearing for mixed use development for 216 homes, 1600 square meters of commercial space in London (junior to Christopher Young KC).

- Acting as junior counsel in minerals inquiries including in South Wales and in Dorset AONB (junior to Richard Kimblin KC) - Acting as junior counsel defending the grant of planning permission in the High Court on behalf of the promoters and developers of a site which was granted planning permission for over 2500 houses in Worcestershire.

- Acting as junior counsel defending the grant of planning permission on behalf of the local planning authority for the over 2200 houses. Challenge relates to the provision of NHS contributions.

- Acting as junior counsel (to Peter Goatley KC) for a developer promoting a logistics haulage site adjacent to the nationally-significant Magna Park.

- Advising several major housebuilders, developers, local authorities and interested parties on all parts of the development life-cycle, including site promotion, seeking planning permission, permitted development and s.106 agreements.

- During her pupillage, Sioned shadowed High Court and Court of Appeal proceedings in some of the most important decisions of 2020 relating to NPPF interpretation (Gladman v SSCLG and Peel Investments v SSHCLG) Sioned’s advisory practice encompasses the following areas: - Housing land supply, land allocations and regeneration of previously developed land - Green Belt, Areas of Outstanding Natural Beauty and heritage assets - Permitted Development and Use Classes Order - Judicial and Statutory Review - Injunctive relief

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Infrastructure Sioned has gained broad experience of the infrastructure planning and consenting regimes in both England and Wales.

Throughout her pupillage, she gained experience of challenges to major infrastructure projects, including offshore decommissioning projects in the North of England, to HS2, Drax Power Station, and the North London Heat and Power Project.

More recently, she has advised on: - A Transport and Works Act Order on the development of a commercial tidal energy demonstration zone - aspects of compulsory purchase and compensation for HS2 - as sole counsel on legal aspects of using Special Development Orders for border infrastructure works in light of the UK’s exit from the European Union

Civil Orders and Injunctive relief Sioned has a broad range of experience seeking injunctive relief in a variety of courts. Recent highlights have included: - Acting as junior counsel for High Speed Two (HS2) Limited in seeking an interim injunction to prevent ‘persons unknown’ trespassing and interfering with HS2 which was granted on a ‘route wide’ basis: https://www.no5.com/media/ publications/hs2-route-wide-injunction-granted/ - Acting as sole counsel for the University of Warwick in seeking injunctive relief against protestors on the University campus

Environment Sioned has a keen interest in developing her environmental law practice and has advised many different stakeholders on the environmental impacts of residential developments, energy and transport infrastructure.

Recent instructions have included advising on habitats and species conservation, environmental permitting, climate change, marine licensing and flooding. She has experience in EIA, SEA and appropriate assessment, nitrates and phosphates.

She has also advised on the environmental assessment aspects of road projects and border infrastructure works, species licensing for an offshore tidal demonstration zone and as part of a team of researchers assessing international obligations of EIA. She has been frequently instructed in relation to statutory nuisance cases.

Sioned was also recently instructed in a recent case seeking injunctive relief for environmental protest.

Compulsory Purchase and Valuation Sioned gained experience on a broad range of compulsory purchase and valuation matters during pupillage and has worked, in her own capacity, on a range of matters, including for HS2.

Regulatory Sioned has gained a broad range of regulatory law experience and of private prosecutions.

Public and EU Law Sioned has advised on a broad range of public law matters, judicial reviews including on matters which are devolved.

Other information Prior to coming to the Bar, Sioned was the Chair of a national agricultural youth charity and worked as Head of the Secretariat to the Climate Law and Governance Initiative at COP24 in Katowice, Poland. This event brought together lawyers in the global climate discussion including from states, the World Bank, Green Climate Fund and leading law firms.

Languages English Welsh (fluent)

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Appointments Government Legal Department Panel of Junior Junior Counsel

Welsh Government Junior Barrister Public Law Scheme

Awards Kate Bertram Prize for academic distinction (University of Cambridge) Bentham Award for high academic achievement (UCL)

John Frederic Whitehouse Award for highest marked law dissertation (UCL)

Memberships UKELA Administrative Law Bar Association Young National Infrastructure Planning Association

Planning and Environmental Bar Association Young Compulsory Purchase Association

Qualifications BPP Law School - Bar Professional Training Course – Very Competent (2019) University College London (UCL) – Law (LLB) – First Class Honours (2017)

University of Cambridge – Environmental Law and Policy (MPhil) – First Class Honours (2018)

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‘Retrofit first’ What it means for planning

Sioned Davies 29th November 2023, No5 Barristers’ Chambers, Birmingham

Alan Muse, RICS

“These new standards provide a professional toolkit to measure and consistently report on carbon and influence the most basic design and construction decisions. If cement were a country it would be the third largest emitter of carbon in the world and so action to de-carbonise construction is required now”.

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Smithfield Market – some reuse!

Policy and regulation change

 NPPF – “encourage the reuse of existing resources” -

§152

 EPC energy efficiency - upgrade of stock to a rating of C before 2027.

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To continue to be “lettable”

 Policy SI2  Major development should be “net zero carbon”  Detailed energy strategy  Development referrable to the Mayor requires Whole Life Carbon Assessment (”WLCA”)

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• City Plan – review • Proposed “retrofit first” policy • Building on the ‘Carbon Options Guidance’.

• Currently at Reg 19 stage

Westminster City Council – City Plan (2021)  Partial review being undertaken ‘A new retrofit-first policy so the retrofit and refurbishment of existing buildings to meet future needs is prioritised over unnecessary demolition and redevelopment which will reduce the impact of development on climate change existing buildings’  Currently at Reg 18 stage

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M&S - Marble Arch, Oxford Street

 Varying column density  Issues with floor-toceiling heights, cores and levels.  M&S argued – not fit for retrofit.

The importance of alternatives - Insp Nicholson Report

§13.61

(1) Onus for considering refurbishment options and showing that they are not deliverable lie with the Applicant.

(2) Authorities have a role in checking compliance (3) SAVE had to show that on balance of probabilities, there might be another route.

(4) Alternatives have to be deliverable and viable.

(5) Recommendation that permission be granted

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Secretary of State disagreed…

“47. The Secretary of State has considered the Inspector’s comments at IR13.94 that there is a ‘growing principle that reducing climate change should generally trump other matters’; and his comments at IR13.99 that as climate change policy is still developing, the Secretary of State is entitled to use his judgement to give this consideration greater weight than the Inspector has attributed to it. Policy in this area will continue to develop and in due course further changes may well be made to statute, policy or guidance. This decision letter sets out the Secretary of State’s judgement on the weight which attaches to these matters in the circumstances of this particular case.

 48. The Secretary of State has considered the Inspector’s comment at IR13.95 that fear of precedent could be a material consideration of sufficient weight to justify dismissing the application. However, he is confident that any future decisionmaker would pay attention to the whole decision and the detailed reasoning and not just to the outcome of the decision. In any event, the decision turns on its own very specific facts, including the relevant development plan policy matrix, the Inspector’s report and the evidence which was before the inquiry, which are all unlikely to be replicated in other cases.”

Cropping up in several other cases…

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Take-aways…  Increasingly common issue – but it is still retrofit first  Optioneering has to be from the start – difficult to reverse engineer!  Retrofit as a planning benefit – see Lea Halls  Viability, deliverability, and alternatives all critical -

Consider the evidence needed very carefully!

‘Retrofit first’

What it means for planning Sioned Davies sda@no5.com

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James Corbet Burcher Planning and Environment

Year of Call: 2011 Email Clerks: planning@no5.com

James Corbet Burcher is a specialist planning and environmental law barrister.

He acts for the full range of participants in the planning process: at appeal, at plan examinations and in court.

Directories and Rankings James has consistently been voted in the Top Juniors in Planning Magazine’s Annual Planning Law Survey in 2019, 2020, 2021 and 2022. He was voted the No.1 Junior Under 35 years in 2018.

Chambers and Partners Bar UK records him as a Band 1 Junior for Planning in the Midlands Region, with sources describing: “James is clear, precise, relaxed and encouraging. He is very forensic and detailed.” [2022] “He’s fantastic on the law with an extraordinary level of enthusiasm.” “Very diligent and client-focused.” [2021] “Incredibly intelligent and hard-working, and an impressive advocate.” “A sincere and very committed member of the Bar.” [2020] “A very good junior with an excellent grasp of what’s important. He’s wonderful to work with.” “Highly intelligent.” [2019] “A very good junior with an excellent grasp of what’s important. He’s wonderful to work with.” “Highly intelligent.” [2019] “He has extensive knowledge of the legal system…Extraordinarily detailed and very thorough.” [2018] “An up-and-coming junior frequently highlighted for his client-friendly approach who is developing a strong reputation in the market…He has a good style and intellectual approach…He is very capable and very keen.” [2017]

Court Work James has appeared in over 50 cases before the Planning Court, Court of Appeal and Supreme Court.

He has acted in all types of administrative law proceedings: especially judicial review, s288 challenges to appeal decisions and s113 challenges to local plans. His clients have included claimants, defendants and interested parties of all kinds, from major landowners and housebuilders and promoters to parish councils and individuals.

The focus of much of his court work has been the interpretation of the National Planning Policy Framework. He has been instructed in many of the challenges which have explored and defined the scope of the Presumption in Favour of Sustainable Development. He represented the successful claimant in Wavendon Properties v SSCLG [2019] EWHC 1524 (Admin) (led by Peter Goatley QC) and one of the successful Interested Parties in Hopkins Homes [2017] UKSC 37 (led by Chris Young QC), which remain two of the leading cases on the interpretation of the presumption.

In the Local Plan s113 sphere, he has extensive experience of litigation involving Housing Requirements, Green Belt and the Duty to Cooperate stretching back to 2014. Cases in recent years have included: Flaxby Park v Harrogate BC [2020] EWHC 3204 Compton PC v Guildford BC [2019] EWHC 3242 (Admin) (led by Chris Young QC) and Aireborough Neighbourhood Development Forum v Leeds City Council [2020] EWHC 2183 (Admin).

Appeal Work James has appeared at over 40 planning inquiries and hearings.

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Appeal work in recent years has included: - Garner Holdings, securing permission for three new B1/B2/B8 use units in the Green Belt on land adjacent to Denby Hall Business Park; - Gladman Developments, securing permission for 180 dwellings - Land at Pear Tree Lane Chorley (led by Chris Young QC) - Oxford Brookes University, securing permission for 500 units at Wheatley Campus – the largest Green Belt permission of its kind (led by Chris Young QC) - The successful Appellant securing planning permission for 150 homes in Brimington, Chesterfield; - Newcastle Under Lyme Borough Council in the dismissal of an appeal for 80 homes at Loggerheads, Newcastle- UnderLyme; - Forest Care, successfully securing permission for a care home development in Hartley Wintney, in Hart District Council.

- Davidson Homes securing planning permission for 141 dwellings at Hanslope, Milton Keynes; - Cove Homes, in its successful appeal securing planning permission for 23 dwellings in Alfold, Waverley Borough Council - Derbyshire Dales Borough Council in the dismissal of an appeal for 165 dwellings at Doveridge

Local Plan Examinations James advises regularly on the promotion of sites through the local plan process, especially in the context of strategic planning at the City Region level.

Instructions in recent years have included appearing at the Harrogate, Bedford, West of England, St Helens and Salford examinations.

His work on s113 challenges informs all of his advice in this area, including work in the context of National Policy, Strategic Environmental Assessment, Green Belt, Viability and the Duty to Cooperate.

Neighbourhood Plan Examinations James is one of the leading barristers operating in the field of neighbourhood planning.

In the last five years, he has advised on a total of more than 60 neighbourhood plans at all stages of development.

He has also appeared for parties at 10 neighbourhood plan hearings and in several of the judicial review challenges in this field, notably one of the leading Court of Appeal cases: DLA Delivery Ltd v Lewes DC [2017] EWCA Civ 58.

The majority of his work in this field is for housebuilders and land promoters. He assists them and their consultants with detailed written representations covering the “basic conditions”, site assessment, strategic environmental assessment and procedure, as well as related public law and local government issues. He has however also advised local planning authorities on procedure on several occasions.

In 2016, he represented Milton Keynes Town Council in the major called-in inquiry concerning a town centre retail development, which raised a number of issues concerning Localism.

Assets of Community Value James has appeared in three cases before the First Tier Tribunal (General Regulatory Chamber): - CR2014/0016 : Idsall School v Shropshire Council – an early challenge to an ACV designation of school playing fields - CR2016/0014: New Barrow Ridge Ltd v Ribble Valley Borough Council – successful challenge to ACV designation of allotments - CR2017/0017Hickinbottom v Telford; Wrekin Council: successful defence of ACV designation for public house He has also advised extensively in this area, and also conducted non-Tribunal advocacy including securing the removal of the designation at the internal review stage, appearing before the Council in person.

Bar Representation James is a member of the Planning and Environmental Bar Association’s (PEBA) Committee and is its representative on Bar Council

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He also sits on Bar Council Legal Services Committee and IT Panel.

He is a qualified Advocacy Tutor with Lincoln’s Inn, and has taught on a number of pupillage and new practitioner events.

He is a registered pupillage supervisor.

He is a registered pupillage supervisor.

Academic and International Work James has an active interest in academic work, with a strong international focus, alongside his practice in England and Wales.

He is a member of the Planning Law and Property Rights Association (PLPR) and has delivered papers at their conferences in the USA (2019), Czechia (2020) and was a co-author of a paper presented remotely in 2021.

He has been appointed a member of the Platform of Experts in Planning Law. He is a member of the International Society of City and Regional Planners, the International Bar Association, the American Bar Association, the American Planning Association and the International Planning History Society.

He is the co-author (with Ashley Bowes) of a Chapter in Professor Rachelle Altermann’s forthcoming major work, Routledge Handbook of Comparative Planning Law (forthcoming, 2022).

James has a particular interest in the development of planning legislation and policy to promote and support new technologies (PropTech, PlanTech) and international comparative land use law (notably in the USA, France and Germany).

Prior to coming to the Bar, James worked on post-war London planning history to postgraduate level. This grounding in the historical development of the British planning system informs all of his professional work today. "All-round brilliant." "James is superb technically, he leaves no stone unturned." "Seamlessly blends laser-focused insight with old-school charm." Chambers UK 2023

Notable Cases Leech Homes v Northumberland CC [2021] EWCA Civ 198 Flaxby Park v Harrogate BC [2020] EWHC 3204 (Admin) Peel Investments v SSCHLG [2020] EWCA Civ 1175 Airebourough Neighbourhood Forum v Leeds CC [2020] EWHC 45 (Admin) and [2020] EWHC 2183 (Admin) Compton PC v Guildford BC [2019] EWHC 3242 (Admin) R(Wright) v Resilient Energy Severndale Ltd [2019] UKSC 53 ([2017] EWCA Civ 2102; 2016] EWHC 1349 (Admin)) Peel Investments (North) Ltd v SSHCLG [2019] EWHC 2143 (Admin) Wavendon Properties v SSHCLG [2019] EWHC 1524 (Admin) Richborough Estates v SSCLG [2018] EWHC 33 (Admin) St Modwen v SSCLG [2017] EWCA Civ 1643 ([2016] EWHC 968 (Admin)) Verdin (t/a The Darnhall Estate) v SSCLG [2017] EWHC 2079 (Admin) Baroness Cumberlege of Newick v SSCLG and DLA Delivery [2017] EWHC 2057 (Admin) East Staffordshire BC v SSCLG [2017] EWCA Civ 89 ([2016] EWHC 2973 (Admin)) R(Williams) v Powys CC [2017] EWCA Civ 42 Suffolk Coastal DC v Hopkins Homes ; Cheshire East BC v SSCLG [2017] UKSC 37 ([2016] EWCA Civ 168) DLA Delivery Ltd v Lewes DC ([2017] EWCA Civ 58 [2015] EWHC 2311 (Admin) Trustees of the Barker Mill Estates v Test Valley BC [2016] EWHC 3028 (Admin) R(Kebbell Developments Ltd) v Leeds City Council [2016] EWHC 2664 (Admin) R(Flint) v South Gloucestershire Council [2016] EWHC 2180 (Admin) Stryjak v Hounslow LBC [2016] EWHC 1897 (Admin) Cheshire East BC v SSCLG and Renew Land Developments [2016] EWHC 571 (Admin) R(Williams) v Powys County Council and Bagley [2016] EWHC 480 (Admin) R(Dudfield) v Forest of Dean DC [2016] EWHC 291 (Admin) West Berkshire DC v SSCLG and HDD Burghfield Common Ltd [2016] EWHC 267 (Admin) IM Properties Development Ltd v Lichfield DC [2015] EWHC 2077 (Admin) Kings Lynn and West Norfolk BC v SSCLG and Elm Park Holdings [2015] EWHC 2464 (Admin) IM Properties Development Ltd v Lichfield DC [2015] EWHC 1982 (Admin)

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Appointments Bar Council Bar Council IT Panel

Bar Council Legal Services Committee

Awards University of Oxford: Demy (Full College Academic Scholarship) Oxford Half-Blue, Modern Pentathlon

Lincoln’s Inn: Hardwicke Entrance Award Lord Bowen Scholarship Lord Mansfield Scholarship Sunley Pupillage Award

Other:UKELA Moot: Winner of both Senior and Junior Competitions

Memberships Planning and Environmental Bar Association (PEBA) National Infrastructure Planning Association (NIPA)

UK Environmental Law Association (UKELA) Constitutional and Administrative Law Bar Association (ALBA) American Bar Association (ABA) International Society of City and Regional Planners (ISOCARP) International Planning History Society (IPHS)

International Bar Association (IBA) American Planning Association (APA) International Planning History Society (IPHS)

Qualifications BA(Hons) Modern History (First Class), Magdalen College, University of Oxford CPE (Distinction), City University BPTC, BPP (London)

Mst Modern History, Magdalen College, University of Oxford LLM (Distinction), University College London

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Biodiversity Net Gain: Legal Knowns & Unknowns; Systemic Operational Uncertainties and Practical Responses

James Corbet Burcher 29th November 2023, No5 Barristers’ Chambers, Birmingham

Overview

Four Questions

 What do we know now?  What do we still need to know?  Will this system work?  How will it develop over time?

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November 2024 What do we know now?

The Legislative Framework

 Environment Act 2021, s98 and Schedule 14  Town and Country Planning Act 1990, new Schedule 7A  [Statutory Instruments to be laid before Parliament]  [5 in total…]

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The Current Legislation

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Schedule 7A (1): Biodiversity Value and The Relevant Percentage  Reg 2: Biodiversity Gain Objective  Biodiversity value attributable to the development to exceed pre-development biodiversity by at least the relevant percentage  Relevant percentage defined as 10%  [Percentage may be amended by Regulations]

(2): The Biodiversity Metric

 Reg 3 Biodiversity Value (”BV”) must be calculated in accordance with the Biodiversity Metric  Reg 4: Metric must be produced and published by SoS  [SoS must lay the Metric before Parliament]

(3): Pre-Development Biodiversity Value

 Reg 5: Biodiversity Value (BV) of onsite habitat on the relevant date  Relevant date to be date of planning application in most cases  Reg 6: Relevant date to be 30 January 2020 where BV has been lowered since then without planning permission or permission – [to be specified in regulations]

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(4) Post-Development Biodiversity Value

 Reg 8: Value at the time the development is completed  Reg 9: Habitat enhancement from works which by virtue of (a) condition; (b) planning obligation or (c) a conservation covenant will be maintained for 30 years  [SoS may substitute a different period by Regulations]

(5) Registered Off-Site Biodiversity Gains

 Reg 10: Habitat enhancement under a s106 or conservation covenant  Recorded on a biodiversity net gain register (s100 of the Environment Act)  [s100(1): SoS may by regulations make provision for and in relation to biodiversity gain sites / register (“BGSR”)]

(6) Biodiversity Credits

 Reg 11: Biodiversity Credits – credits under s101 of the Environment Act 2021  [s101: SoS may make arrangements for purchase of credits]

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(7) General Condition of Planning Permission

 Reg 13: Every Planning Permission for development of land shall be deemed to have been granted subject to condition in (2)  “(2) The condition is that the development may not be begun unless— (a) a biodiversity gain plan has been submitted to the planning authority (see paragraph 14), and (b) the planning authority has approved the plan (see paragraph 15).”

(8) Biodiversity Gain Plan (“BGP”)  Reg 14: BGP to contain matters specified: -

Information about steps to minimise adverse effect on onsite habitat and any other habitat Pre and Post-Development BV of onsite habitat Any registered offsite biodiversity gain and that value Any biodiversity credits Such other matters as the SoS may be regulations specify [SoS Regulations on any other matters, form of BGP, procedure to be followed, including time and persons who may submit]

(9) Approval of Biodiversity Gain Plan  Reg 15: LPA to approve the plan only if satisfied that as to specified matters  Pre-Development BV is as specified in the plan  Post-Development BV is at least the value specified in plan  Off-site Biodiversity Gain: the gain is so allocated, and any conditions met or will be met  Any biodiversity credits have been purchased  That the biodiversity gain objective is met  Any other matters specified by SoS

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(10) Regulations about Determinations  Reg 16: SoS may make regulations as to: -

The procedure that the LPA is to follow in determining whether to approve a Biodiversity Gain Plan

-

Factors which may or must be taken into account

-

Appeals relating to such a determination

-

[SoS to issue these Regulations]

(11) Exceptions

 Reg 17: Exceptions for: -

Planning permission granted under a development order Urgent Crown development

-

“(b) development of such other description as the Secretary of State may by regulations specify”

-

[Further SoS Regulations for exempt categories?]

(12) Modifications for Irreplaceable Habitats  Reg 18: SoS may make regulations modifying or excluding this Part of Schedule in relation to planning permission where the onsite habitat is “irreplaceable habitat” (as defined in the regulations)  Regulations in respect of minimising adverse effect and powers and duties in relation to the giving of guidance, on Natural England  [SoS to issue Regulations and NE to issue guidance]

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(13) Modifications for Particular Kinds of Planning Permission  Reg 18: SoS to issue Regulations modifying provisions for: -

Outline permissions Conditional permissions Section 73A

 Conditions requiring Habitat enhancement -

“” Allocation of registered offsite biodiversity gain “” Purchase of biodiversity credits

 [SoS to issue Regulations and NE/DLUHC to issue guidance]

The Current Guidance

Current Guidance

 Planning Practice Guidance PPG Chapter 8-020 to 028  Natural England Biodiversity Metric 4.0  25 Year Environment Plan  Planning Advisory Service  & DLUHC News Announcements…

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Draft Documents & Guidance Available  Biodiversity Metric 4.0 (24 March 2023)  & Small Sites Metric (24 March 2023)  Draft Biodiversity Gain Plan  Land Manager Guidance (13 October 2023)  Developer Guidance (2 May 2023)  Credit Prices (11 August 2023)

DLUHC: End of November By the end of November, we will publish all guidance and the regulations including: -

the statutory biodiversity metric, critical for calculating the correct biodiversity gain

-

the draft biodiversity gain plan template, which will help developers prepare for what they will need to complete during the planning application stages

-

the Habitat Management and Monitoring Plan template, which will set out how the improved significant on-site and off-site habitats will be managed for the long term

-

a package of Biodiversity Net Gain guidance that sets out further advice for landowners, developers, and Local Planning Authorities around their role and responsibilities in delivering mandatory Biodiversity Net Gain

These materials will ensure that developers and planning authorities have access to the necessary tools and information to effectively implement Biodiversity Net Gain in January 2024, ensuring they deliver the homes that the country needs while benefitting nature and local environments.

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DLUHC: 27, 28, 29, 30 November

What do we still need to know?

Regulations, Guidance & Policy  Regulations – mandatory and discretionary  Guidance – NB both DEFRA and DLUHC  National Policy  Plus… further advice to PINS, Chief Planners, PAS, Natural England informal contacts etc

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The Regulations

 Natural England indicated in mid-2023 that there would be 5 separate Statutory Instruments (Regulations)  DEFRA’s 4: The Percentage, The Register, Irreplaceable Habitats and Exemptions (& Credits?)  DLUHC 1: Regulations on General Planning Process: Applications, Biodiversity Gain Plans, Outline/Conditions etc

Regulations Awaited  Reg 4: The Metric  Reg 9: 30-year period (to be confirmed)  Reg 10: The Biodiversity Net Gain Register (“BNGR”)  Reg 11: Biodiversity Credits  Reg 14: Biodiversity Gain Plan (“BGP”)  Reg 16: General Regulations  Reg 17: Exceptions  Reg 18: Irreplaceable Habitats  Reg 19: Outline/Conditional Permission

Questions (1): Applications & Procedure  Commencement Date: January 2024?  Later Commencement: April 2024 (Small Sites), 2025 NSIPs  The Metric: Final format & calculations?  The Register: How to register/allocate land?  The Biodiversity Gain Plan: How to assess/address disputes

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Questions (1): Applications & Procedure  Commencement Date: January 2024?  Later Commencement: April 2024 (Small Sites), 2025 NSIPs  The Metric: Final format & calculations?  The Register: How to register/allocate land?  The Biodiversity Gain Plan: How to assess/address disputes

Questions (2): Methodology & Substance

 Significant Onsite Habitats: Definition?  Irreplaceable Habitats: Definition?  Habitat Monitoring Template  Exemptions

Questions (3): Finance & Certainty

 Section 106 Agreements: Guidance?  Conservation Covenants: Guidance?  Biodiversity Credits  Tax Implications for Landowners

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DEFRA & DLUHC Guidance

 General vs Specific Guidance  Who will take ownership of guidance on which part?  How will the guidance be centralised?  How far is Natural England aligned with DLUHC?

National Planning Policy Changes  National Planning Policy Framework  NPPF 175(d): “providing net gains for biodiversity”  NPPF 179 - 182  Revised NPPF? -

(a) After LURA 2023; (b) Parliamentary Recess (19 December 2023) (c) General Election (Pre-Election Period: 3 weeks)

Systemic Operational Uncertainties

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(1) LPA Resourcing & Expertise  Specialist ecologist advice to LPAs limited and over-stretched  Absence of clear guidance on how to handle disputes (including rights of appeal)  Complexity of long-term enforcement onsite and offsite  Training and PAS Guidance not capable of filling a basic financial & expertise resource gap

(2) Viability

 BNG is already requiring trade-offs against other objectives, including Affordable Housing  Potential delay to all scales of site  Will this or a future Government review either (i) exemptions, (ii) the percentage or (iii) other elements to ease delivery?

(3) The Off-Site BNG Market  Rate of take-up by landowners will depend upon the certainty offered by Government  Limited mapping / information on off-site options  Guidance on s106 and conservation covenants  Tax reforms?

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(4) Planning Data & Future National Policy

 Metric 4.0 Excel Spreadsheet is simply the start  Plans for online digital entry  Transfer of information to Natural England and DLUHC  Further Feedback Loops through National Development Management Policies

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Practical Responses

12 Actions / Suggestions for Projects  (1) Work on January 2024 Implementation Date  (2) Instruct Ecologist Team Early  (3) Design to Integrate BNG Onsite where possible  (4) Identify Council Points of Contact (incl External)  (5) Identify Offsite Options where applicable

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12 Actions / Suggestions for Projects

 (6) Prepare Biodiversity Gain Plan with care at submission  (7) Draft S106 / Conservation Covenants early where applicable  (8) Full Coverage / Explanation in Planning Statement  (9) Address Potential LPA Challenge on Off-Site Locations

12 Actions / Suggestions for Projects  (10) Plan for Delay / Pushback / Appeal?  (11) Monitoring Plan for Site / Off-site actions  (12) Take care with Scheme Amendments  In summary, expect a lot of explanation and plan for direct meetings / persistent contact and documentary trail to unlock delays

Conclusions

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Biodiversity Net Gain: Knowns, Unknowns and Systemic Uncertainties James Corbet Burcher

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Christian Hawley Planning and Environment

Year of Call: 2013 Email Clerks: planning@no5.com

Christian joined Chambers in 2015. He is also a Chartered Surveyor (Planning and Development) and prior to his change of career to the Bar was a Property Director at Lidl UK. His 13 years of industry experience has provided Christian with a rich knowledge of property development and planning allied with a keen sense of commercial realism.

Experience Christian regularly acts for developers, promoters, local authorities and interested parties across a wide range of planning and environmental matters both at Inquiry and in the higher courts. He also enjoys a busy advisory practice.

Residential Christian regularly advises and acts for residential developers (both led and un-led) on a wide range of sites ranging from proposals for small developments through to schemes of 900 and 1,000 dwellings. Christian also advises regularly on ‘post-permission’ issues such as the interpretation and discharge of planning conditions, the interpretation and effect of s106 agreements, drainage and highways matters.

Retail Having worked in the retail sector of the property development industry for 13 years prior to coming to the Bar Christian has a great deal of experience in dealing with retail matters. He has acted on small and large schemes and regularly advises upon the correct application of the sequential test and consideration of the NPPF where in conflict with older development plans. He also regularly deals with retail impact issues and other issues typically arising from retail schemes such as highways matters.

Environmental Advice on EIA matters including reviewing draft Environmental Impact Assessments. Most recently he has acted in the High Court in a matter considering the proper scope of Environmental Permits under the Environmental Permitting Regulations (see cases below).

Enforcement Acting for both Local Authorities and those subject to Enforcement Action. Examples include unauthorised Gypsy and Traveller pitches, unauthorised works to listed buildings, unauthorised development and changes of use.

Local Plans Advising on the promotion of development proposals through the Local plan process and appearing at Local Plan Examinations (Vale of Aylesbury Local Plan, North Hertfordshire Local Plan, East Cambs Local Plan, Chester and Cheshire West Local Plan Part 2) for clients such as Gladman Developments and Barratt Homes.

Compulsory Purchase Advising on compulsory purchase matters both for Local Authorities and for those affected. Examples include promoting a CPO for an individual residential property to secure its redevelopment and that it be put back into beneficial use through to a proposal for the compulsory purchase of land for redevelopment as a Gypsy and Traveller Transit Site.

Assets of Community Value Advising in relation to ACV applications both for Local Authorities and those affected by such applications. Such advice has included in particular the correct statutory process which must be followed, appeals and compensation.

Accommodation for the elderly Christian advises regularly for scheme promoters on applications for a range of schemes (both with and without care homes) for the accommodation of the elderly and in particular whether the specific proposal at hand triggers (or not) the usual range of contributions required by mainstream residential developments.

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Community Infrastructure Levy Both advising Local Authorities upon the implementation and application of the Community Infrastructure Levy and advising scheme promoters / developers on what contribution requests can be justified along with the interaction between the CIL regime and any proposed (or sought) s106 obligations.

Viability Having worked in property development and being a Chartered Surveyor Christian is well versed in the operation of viability appraisals. Christian has provided advice, seminars and training on this topic particularly in light of the recent revisions as regards viability in the NPPF and the Practice Guidance. It has also been a key feature of a number of the Inquiries that Christian has been involved in.

Notable Cases R (oao Danning) v Sedgemoor District Council [2021] EWHC 1649 (Admin) Successful challenge to the LPA’s failure to: (1) discharge its duty under s149(1) Equalities Act 2010 when determining a planning application which would involve the ‘loss’ of a public house, (2) properly interpret its own development plan policies for consideration of the loss of community facilities.

R (oao Squire) v Shropshire Council and Matthew Bower [2019] EWCA Civ 888 The case concerned the scope of Environment Agency Permits issued under the Environmental Permitting (England and Wales) Regulations 2016 and whether the LPA had properly considered the direct and indirect environmental impacts of the proposal in terms of manure spreading as required by Environmental Impact Assessment Regulations 2011.

South Gloucestershire Council v SSHCLG and Barratt Homes (Bristol Division) (2018) Advised Barratt Homes (led by Jeremy Cahill QC) in defending the claim brought by the LPA against the grant of permission following a public inquiry for up to 121 dwellings and a retail unit in Charfield, Glos. Christian appeared as sole counsel in the High Court oral permission hearing, permission was refused to bring the claim. The claim was brought on the basis that the planning inspector had incorrectly interpreted the provisions of the NPPF (2012 Annex 1) and NPPG on the issue of prematurity (the LPA’s position at the Inquiry being that the proposal was premature to the West of England Joint Spatial Strategy).

R (oao John Williams and Others) v Forest of Dean District Council [2018] EWHC 2409 (Admin) Successful advised and acted for the Defendant Council in judicial review proceedings brought by the Claimant seeking to challenge the lawfulness of a Breach of Condition Notice issued by the Council requiring the demolition and removal of a building on the Claimant’s land. The claim was brought on three grounds: (1) that the condition in question was manifestly unreasonable and so uncertain in meaning such that it was void, (2) that the Council has misdirected itself when considering whether the building was still ‘needed’ for the purposes of agriculture, (3) that the remedy sought exceeded that which was required to remedy the breach and fell outside the terms of the 1990 Act and so was unreasonable. The claim was dismissed on all three grounds and the subsequent application to the Court of Appeal for permission to appeal was refused.

Inquiries/Hearings Hearing – Land of Anchor Road, Coleford, Somerset (2021) Secured planning permission for up to 63 dwellings. Issues: (1) scale of development, (2) outside settlement boundary (greenfield), (3) effects upon landscape and appearance.

Inquiry – Land at Omega Zone 8, St Helens (2021) Led by Peter Goatley QC – secured detailed permission for B8 logistics warehouse (81,570 sqm) for occupation by T J Morris along with outline permission for B2 and B8 units (123,930 sqm). Main Issue: Green Belt / Very Special Circumstances Inquiry – Land to south of White Rock, adj Brixham Road, Torbay (2021) Led by Peter Goatley QC – secured permission for up to 400 dwellings. Issues: location (outside of established built up areas / not allocated), effects upon landscape character (in particular South Devon AONB).

Hearing – Land off Broad Street, Clifton (2019) Secured planning permission for up to 80 dwellings, Issues: effect of proposed development on the character and appearance of the area and on the setting and identity of Clifton.

Inquiry – Former North Worcestershire Golf Club, Hanging Lane, Birmingham (2019) Led by Christopher Young QC – secured permission for Bloor Homes for up to 800 dwellings, a primary school and associated development. Issues: 5YHLS, ‘deliverability’, meaning of ‘windfall’ sites.

Inquiry – Wooton Road, Charfield, Glos (2018) Led by Jeremy Cahill QC – secured permission following a two-week public inquiry for Barratt Homes for up to 121

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dwellings and a retail unit. The Main Issues were: (1) Prematurity (the Council contending that the proposal was premature in the context of the emerging West of England Joint Spatial Strategy), (2) Highways and connectivity, (3) Railway safety. The Council’s subsequent challenge to that permission was refused permission.

Inquiry – Land at Harker, Carlisle (2018) Advised and acted successfully for Carlisle County Council as Education Authority in seeking appropriate financial contributions to be made toward the provision of primary and secondary education arising from a proposal for 300 new dwellings.

Inquiry – Land North of Ashby Road, Tamworth (2018) Led by Jeremy Cahill QC – secured permission for up to 1,000 dwellings. The application was called in for determination by the SoS. The Main Issues were: (1) Highways mitigation, (2) Education contributions, (3) Affordable Housing provision and (4) whether or not the proposal was required to make financial contributions towards leisure provision in the adjoining local authority area given its proximity to it.

Inquiry – Land at Earl Road and Epsom Avenue, Handforth Dean, Cheshire (2018) Advised and acted for St Modwen Developments as a Rule 6 Party objecting to the co-joined called in inquiries for (1) up to 23,000m2 Open A1 retail space with 2,274m2 A3/A5 floorspace and (2) for five units of up to 5,130m2 for A1, A3 and A5 use. The Main Issues were: (1) Retail Impact Assessment, (2) Transport / Highways, (3) Trade Diversion and (4) Impact on investment. Decision awaited.

Neighbourhood Plan Examination – Storrington and Sullington and Washington NP 2018-2031 (2018) Advised and prepared written representations (led by Christopher Young QC) on behalf of Clarion Housing seeking to remove the designation of a site of interest to them as a Local Green Space in the draft NDP. Christian subsequently appeared as sole counsel at the NDP Examination and secured the recommendation of the Examiner that the site be deleted from the NDP and not be designated as a LGS. Inquiry – Land adj to Sainsbury’s Supermarket, Old Smithfield, Bridgnorth (2017) Advised and acted successfully for Shropshire Council in the called in inquiry into an application for 5 No retail units of up to 2,573m2. The Council supported the scheme, local traders and residents were a Rule 6 party opposing the scheme.

The Main Issues were: (1) Retail Impact Assessment, (2) Loss of car parking / adequacy of car parking, (3) Trade Diversion, (4) Trade leakage and ‘clawback’, (5) Impact upon heritage assets / conservation area.

Hearing / s288 Challenge – Land off Stonepath Drive, Hatfield Peverel (2017) Acted for Gladman Developments at a Hearing in relation to a refused application to up to 80 dwellings. The appeal was dismissed and Christian continued to act for Gladman (led by Richard Kimblin QC) in bringing a successful challenge to that dismissal. The SoS consented to judgment.

Inquiry – Sandyway Nurseries, Newent, Glos (2017) Advised and acted successfully for Forest of Dean District Council at public inquiry into the Council’s refusal of permission for the stationing of 23 caravans for occupation by agricultural workers. The Main Issues were: (1) Need, (2) Agricultural Worker Occupancy, (3) Permitted Development.

Inquiry – Land at Leeds Road, Collingham and Breary Lane East, Bramhope (2016) Led by Jeremy Cahill QC – acted successfully at a 3-week public inquiry for Miller Homes in relation to proposals for 150 and 380 dwellings respectively. The Main Issues were: (1) Five-year housing land supply, (2) Landscape impact, (3) Highways, (4) Flood Risk, (5) Ecology and (6) Drainage.

Inquiry – Land at New Yatt Road, North Leigh, West Oxon (2016) Led by Peter Goatley – acted successfully for Gladman Developments at public inquiry securing permission for up to 76 dwellings.

Inquiry – Land at Burford Road, Witney, West Oxon (2016) Led by Peter Goatley – acted successfully for Gladman Developments at public inquiry securing permission for up to 270 dwellings.

Footpath Deletion and Modification Inquiry – Cleobury Mortimer, Shropshire (2018) Advised and acted successfully at Inquiry for Shropshire Council in relation to a proposed Footpath deletion and proposed Footpath modification. The Order was opposed by the landowner affected. The two Orders were confirmed.

Inquiry – The Mill Manager’s House, Cromford Mill, Cromford (2017) Advised and acted successfully for Derbyshire Dales District Council at Inquiry in relation to an appeal against the Council’s issuing of a Listed Building Enforcement Notice requiring that unauthorised works to the listed Mill Manager’s House (part of the Cromford Mill complex within the Cromford Conservation Area and Derwent Valley Mills World Heritage Site) be reversed and the building reinstated to its original condition. Christian further advised, following the

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dismissal of the appeal, in relation to proceedings brought in order to secure compliance with the upheld notice.

Village Green Inquiry – Somerford, Congleton (2017) Advised and acted successfully at Inquiry for Cheshire East Highways Department in objecting to an application to register an area of land as a village green.

Awards BPP / Broadway House Chambers Public Law Prize 2013

College of Law / Freeth Cartwright Environmental Law Prize 2011

Memberships Member of the Royal Institute of Chartered Surveyors

Member of the Honourable Society of the Inner Temple

Qualifications BPTC – Very Competent, BPP Leeds 2011-2013

GDL – Commendation, College of Law Chester 2009-2011 BA (Hons) History and Politics – 2.1, University of York 1996-1999

Postgraduate Diploma in Surveying – Distinction, University of Reading 2009-2011

Previous Experience 2002-2015 As a Property Director at Lidl UK Christian was responsible for the Runcorn Property Department (comprising the Acquisitions, Construction and Facilities Management teams) covering the North West and North Wales reporting directly to the Regional Director and Board of Directors. Christian was responsible for the property strategy for the area including (1) Acquisition of new sites, (2) Planning, (3) Legal Process, (4) Construction and fit-out of new supermarkets, (5) Management of the existing property portfolio.

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No5 Chambers Environmental Law Seminar Nutrient Neutrality 1. Breaking cover as an apparently innocuous and geographically limited issue the matter of Nutrient Neutrality (along with its cousin Water Neutrality) quickly ceased to be a mere curiosity as it spread far and wide across the country with planning applications and development plans left in tatters in its wake.

2. Despite the pleas (and fevered ‘Dear Minister’ letters) of numerous local planning authorities there remains no ‘national’ guidance nor solution. Each LPA, and indeed each applicant, has been left to deal with the situation as best they can (in some cases developing innovative solutions to allow development to proceed and in others nothing less than a complete standstill in the approval of applications).

3. However, there is at least now some case law to guide us even if policy is yet to catch up or indeed even attempt to address the issue. Despite the ‘false dawn’ (depending on your particular point of view) of the Government attempting to break through the issue1 by way of amendments to the Levelling Up and Regeneration Bill2 that process came to precisely nought.

4. In consequence therefore, at least in the short to medium term, it seems likely that developers and LPAs alike will have to work on localised solutions to the problem.

Before getting to that it is worthwhile indulging in a brief recap of what the issue is.

Nutrient Neutrality / the ‘Dutch Case’ 5. Essentially it was the long arm of European jurisprudence which first gave rise to the issue. In 2018 C-294/17 Coöperatie Mobilisation for the Environment UA and Others v College van gedeputeerde staten van Limburg and Other (known, rather more easily, as the ‘Dutch Case’ or ‘Dutch-N Case’) was decided.

6. The Dutch Case established that whilst a plan or programme concerned with securing improvement to the conservation status of European Designated Sites could be relied upon to permit development affecting those designated sites such reliance could only be made if the objectives were certain (i.e. beyond reasonable scientific doubt) and that there would be no negative impact upon the conservation status of designated sites already in ‘unfavourable’ condition.

7. In short the judgment meant the end of a ‘kicking the can down the road’ approach to dealing with issues such as nitrogen and phosphate deposition in designated sites 1 2

‘resolve’ would be too kind a gloss upon the mechanics of the proposal As it then was

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already determined to have an ‘unfavourable’ conservation status. Such approaches were previously relied upon, in varying forms, to permit development in the short term (even if harmful) in reliance upon securing longer term improvements.

8. Examples included reliance upon future upgrades to Waste Water Treatment Works (including new or presently experimental technologies) and longer term measures such as greater controls upon (or incentives to reduce) deposition through run-off from farmed agricultural land.

9. The longer term ‘assumptions’ approach was disavowed in the Dutch case – only those measures which were beyond reasonable scientific doubt could be relied upon and any ‘headroom’ created could only be ‘utilised’ by a new development once the relevant designated site(s) were returned to a favourable conservation status. In short any improvements (unrelated to the project in question) against the relevant conservation measures could not be used to permit or allow further harmful development if the designated site, notwithstanding those improvements, remained in an unfavourable conservation status.

10. Bluntly it became the default position that where a designated site was failing in its conservation objectives that any proposed development which would impact negatively upon those objectives (in the absence of mitigation) would be judged to have an adverse effect upon the integrity of the designated site. An Appropriate Assessment could not be passed and any grant of permission would be unlawful.

11. And so the brakes went on. Perhaps earliest in the Solent but an approach which quickly spread through Somerset, Cornwall, Herefordshire and numerous other areas.

12. Legal Opinions abounded (guilty), LPA’s placed an ‘embargo’ on approvals for new development (where relevant) – very quickly it became impossible to secure planning permission for nutrient depositing development (principally but not limited to residential development) in many areas.

13. Solutions were sought, debates ensued as to what was an ‘approval’ for the purposes of the Conservation of Habitats and Species Regulations 2017 (as amended) (‘the Habitats Regulations’), creative solutions were proposed (some of which were potentially lucrative to those proposing them).

14. Yet, for a considerable period of time, no progress was made, no solutions were found, no applications were approved. Furthermore, notwithstanding the Government’s declared objective to boost the supply of housing, there appeared little appetite to intervene or broker solutions. Numerous authorities wrote numerous letters to Ministers and received responses that, even generously, can be described only as platitudes.

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15. Only those schemes which could demonstrate ‘nutrient neutrality’ could be approved because only those schemes could ‘pass’ (or secure a ‘positive’) Appropriate Assessment.

16. Then, finally, some High Court cases began to emerge to cast (hopefully) at least some light on how to navigate the difficult situation created by….. case law.

The (subsequent) case law 17. The first important case is R (oao Wyatt) v Fareham BC & Others [2022] EWCA Civ 983. The LPA had granted planning permission for residential development (eight dwellings) on a site within the catchment of the Solent and Southampton SPA. 18. The applicant (and ultimately the LPA) relied upon Natural England’s technical guidance note to determine a ‘nutrient budget’ for the development. That budget having been established the next question being whether or not the proposed development upon occupation would exceed the existing level of deposition arising from the site in its existing use (redundant glasshouses and a nursery).

19. The budgeting process relies upon identifying the output from the development (including by reference to assumed occupation levels ie headcount and likely water usage) and its destination (which treatments works and the efficacy thereof) to determine the likely level of deposition. From this the existing deposition is to be deducted (because it would cease).

20. Mr Wyatt sought to challenge the decision of the LPA to grant planning permission on numerous grounds including criticism of the approach taken to the ‘nutrient budget’, the underlying assumptions therein and the ’20% buffer’ applied to account for a ‘precautionary buffer’.

21. Mr Wyatt’s claim was rejected. Whilst the court did pass comment upon the assumptions made and the importance of the robustness of the data used and relied upon, the judgment established the principle that such an approach can be taken.

22. The important consequence being that LPAs (and applicants) can have confidence that nutrient ‘modelling’ or ‘budgeting’ is a lawful approach to demonstrating that an Appropriate Assessment can be passed. Thereby there is now a legal footing for an approach which relies upon establishing a budget and then seeking to ‘offset’ it (through mitigation if necessary) in order for development to be able to proceed.

23. This unlocked some sites – those which can ‘consume their own smoke’ through offsetting, treatment on site etc and those which rely upon off-setting elsewhere within the catchment (either directly or through purchasing ‘credits’).

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24. The second important case is that of C G Fry & Son Limited v SSLUHC & Somerset Council [2023] EWHC 1622 (Admin) which considered the true scope of the need for an Appropriate Assessment to be undertaken.

25. Planning permissions which had been granted before an ‘embargo’ ended up ‘stuck’ – could an Appropriate Assessment be required post the grant of a permission? Did the Habitats Regulations apply, where a change in circumstances has occurred, further along through the ‘consenting’ process. If so when was an existing permission ‘safe’?

26. Fry was concerned with an application to discharge planning conditions imposed upon a reserved matters approval for a scheme which already had other phases under the same outline planning permission under development. The planning conditions in question did not go to any matter concerned with the principle of the development.

27. The LPA insisted that an Appropriate Assessment be undertaken and refused the application. On appeal the LPA prepared a shadow AA concluding that there would likely be an adverse effect and no mitigation was proposed to off-set it. The claimant contended that the relevant provisions of the Habitats Regulations could not apply to the discharge of conditions.

28. Prior to Fry it was (generally) accepted that the need for an AA could apply at the reserved matters stage. Matters were less clear cut (in the absence of any relevant case law) in terms of the discharge of conditions and whether some distinction could be made between those conditions which did deal with directly relevant matters (e.g. a drainage condition) and those which did not (e.g. approval of materials).

29. Fry has, for the time being, settled that debate with the High Court dismissing the claim holding that the discharge of planning conditions, even those not ‘directly’ associated with the issue of nutrient deposition, is subject to the provisions of the Habitats Regulations and so requires an Appropriate Assessment to be undertaken.

The Future 30. I say ‘for the time being’ because the claimant in Fry sought permission to appeal to the Supreme Court and (should that have been refused) the Court of Appeal.

31. Whilst it remains to be seen what course that case will eventually take its importance and relevance appeared to briefly dim as around the same time as the decision of the High Court the Government finally lurched into action and proposed amendments to the Levelling Up and Regeneration Bill which would cut through the inherited ‘defective EU law’ (Prime Minster Rishi Sunak’s words).

32. Suddenly it seemed possible that the admittedly long winded process of application (LPA) > appeal (PINS) > JR / challenge (High Court) > appeal (CoA) > appeal (Supreme Court) may not be the only way through the conundrum. Whilst not in

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complete agreement (and understandably keen to criticise the Government given the opportunity) Labour’s position was not opposition but an amended (softened) approach.

33. Could the politicians finally resolve the issue one way or another?

34. No. 35. ‘Short-lived’ would be a generous label for those proposed amendments which were very swiftly jettisoned by the Lords. Furthermore, the Government’s expressed response that it would instead table specific legislation to carry through essentially the same reforms appears to have been equally short-lived. It seems unlikely given where the Government is in the electoral cycle that any time will be dedicated to legislating on this particular matter.

36. So, are we back where we started? Not quite, we have Wyatt and Fry to guide us. Not only that a whole industry of expertise has now grown up around the issue. Nutrient budgets abound, the issue has been marked, measured and weighed. Solutions, both from the public and private sector, have come forward. Each designated site faces its own particular issues and each development site has its own particular circumstances which will, to a degree, dictate an appropriate response.

37. As with many matters there is the over-riding issue of cost and who is to bear it. For those sites which cannot mitigate on site (which in any event still represents an ‘abnormal’ cost of development) then the only solution is off-site mitigation. That, whatever the form, can be expensive. Shuttering intensive poultry units, ceasing the intensive farming of agricultural land and creating new wetlands (just three real world examples of mitigation) does not come cheap.

38. For some sites that will not matter – the numbers will still work. For others less so. In consequence even where there are solutions in place the issue is still capable of slowing or precluding development.

39. There is also the commercial dimension. A planning permission is valuable but time limited. Likewise, mitigation as presently required can be extremely costly. The flirtation with legislation designed to ease the issue with a lesser burden upon the owners / developers of sites raises that age old Blackjack dilemma - stick or twist.

40. Stick with what is known and develop out sites accepting the additional burden in terms of costs in return for certainty and speed.

41. Or twist and hope that something better comes along in the future which removes or reduces the need for direct development related mitigation.

42. Whilst a regular feature of industry discussion and a matter which has repeatedly broken through to the national news the proposed amendments to the LURB now look

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more like a (futile) flurry rather than a demonstrable desire to find solutions at a national level.

43. For now it seems that developers and LPAs alike will have to rely upon all the hard work and progress that has occurred over the last five years since Dutch-N landed.

There is no doubt that the development industry and the decision-making process is now in a better position to deal with the issue than it was even two years ago, let alone five.

44. There is however a significant cost attached. That is to the benefit of some (for example credit providers) but may well come at a cost to others (for example reduced affordable housing provision where sites are demonstrably not viable).

45. There is, I am confident, more of this tale yet to come.

Christian Hawley No5 Chambers

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Odette Chalaby Environmental Law

Year of Call: 2021 Email Clerks: planning@no5.com

Odette is a specialist planning and environmental law barrister. In her first year of practice, she was recognised in Planning Magazine’s Guide to Planning Lawyers as one of the 20 top-rated planning juniors under 35, the most recently qualified entrant on the list.

Odette represents developers, local authorities, and interested parties at all stages of the planning process. She is particularly interested in matters at the intersection of planning and environmental law, including renewable energy, biodiversity net gain and nutrients, water, and EIA/SEA/Habitats.

She has appeared unled before the High Court, Crown Court, magistrates court, and at numerous s.78 TCPA appeals (inquiries and hearings).

As to led work, she has been instructed as junior counsel on a number of significant multi-week planning inquiries, including solar farms, minerals development, and large housing schemes.

During her pupillage (supervised by Nina Pindham), she gained experience assisting with judicial and statutory reviews in the Court of Appeal and High Court, a range of enforcement matters, and compulsory purchase.

Odette is an elected trustee of the UK Environmental Law Association (UKELA), where she has particular responsibility for coordinating regional groups, editing the e-law publication and organising Junior UKELA seminars. She is also a member of the Attorney General’s “Junior Junior” scheme.

Before coming to the Bar, Odette was a policy journalist at Apolitical.

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Planning Odette is regularly instructed to represent Appellants and Local Authorities at s.78 TCPA appeals.

Odette has also developed broad experience of advisory work across a wide range of planning matters including: • • • • • • • • • • •

EIA/SEA Green Belt AONB Biodiversity Net Gain Nutrients and Habitats Heritage Housing Land Supply Climate Change CIL and s106 Obligations Certificates of Lawfulness Flood risk

Recent s.78 inquiries and hearings include: s.78 Appeals - Unled • • • • • • •

currently representing the Appellant at a hearing re: 40 homes currently representing a Parish Council at an inquiry re: 120 homes represented the Appellant at a successful hearing re: 25 holiday lodges in Tenbury Wells, Worcestershire (including securing a costs award) APP/J1860/W/21/3273533 represented the LPA at a successful hearing re: a rural pub-resi conversion in Petrockstowe, Devon (including securing a costs award) APP/W1145/W/22/3312735 represented the Appellant at a successful hearing re: storage of 1,000 cars and 40 HGVs in Lichfield, Staffordshire APP/K3415/W/22/3313524 represented the LPA at an enforcement inquiry re: Thorncliffe, Staffordshire APP/B3438/C/20/3244823 represented the Appellant at a successful hearing re: 6 homes in Lichfield, Staffordshire APP/K3415/W/22/3305895

Renewable Energy and Minerals • • • • •

represented the Appellant at an inquiry re: 49.9 MW solar farm and battery storage in Langford, Devon APP/Y1138/W/22/3293104 (led by Thea Osmund-Smith) represented the Appellant at an inquiry re: 45 MW solar farm and battery storage in Bramley, Hampshire APP/H1705/W/22/3304561 (led by Thea Osmund-Smith) represented the Appellant at an inquiry re: extraction of 1.5million tonnes of sand and gravel in Ottery St Mary, Devon APP/J1155/W/22/3299799 & APP/J1155/W/22/3299802 (led by Richard Kimblin KC) represented the Appellant at an inquiry re: 49.9 MW solar farm and battery storage in Greatworth, Northamptonshire APP/W2845/W/23/3315771 (led by Thea Osmund-Smith) represented the Appellant at an inquiry re: 12MW solar farm in Cruxton in the Dorset AONB APP/D1265/W/23/3317593 (led by Thea Osmund-Smith)

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Residential • • • • • • • •

represented the Appellant at an inquiry re: 233 dwellings in Saffron Walden, Uttlesford APP/C1570/W/22/3296426 (led by Chris Young KC) represented the LPA at an inquiry re: 481 units of asylum seeker accommodation in Staffordshire (APP/Y3425/W/23/3315258) (led by Hugh Richards) represented the Appellant at an inquiry re: 95 homes and sports facilities in Bromley, London APP/G5180/W/23/3315293 (led by Chris Young KC) represented the Appellant at an inquiry re: 80 dwellings, local centre, and associated infrastructure in Cotford St Luke, Somerset APP/W3330/W/22/3304839 (led by Chris Young KC) represented the Appellant at an inquiry re: 76 dwellings in Angmering, West Sussex APP/C3810/W/22/3295115 (led by Thea Osmund-Smith) represented the Appellant at an inquiry re: 48 dwellings in Walberton, West Sussex APP/C3810/W/22/3309365 (led by Thea Osmund-Smith) represented the Appellant at an inquiry re: up to 90 dwellings with associated infrastructure in Glastonbury, Mendip APP/Q3305/W/22/3311900 (led by Thea Osmund-Smith) represented the LPA at an inquiry re: 45 dwellings in Leigh Sinton, Malvern APP/J1860/W/21/3289643 (led by Richard Kimblin KC)

Permitted Development Rights During pupillage, Odette assisted Thea Osmund-Smith in an important Court of Appeal case around interpretation of the GPDO (Cab Housing v SoS LUHC [2023] EWCA Civ 194). She has experience advising on permitted development matters, including office to residential conversion applications and the interaction of the GPDO with other parts of the planning system.

Enforcement Odette has experience representing and advising clients in relation to enforcement matters. She recently appeared unled in the High Court at an interim hearing for complex contempt of court proceedings involving 28 defendants in relation to a series of alleged breaches of a s.187B planning injunction (North Kesteven District Council v Price QB-2022-000178).

Environment Energy Odette has a particular interest in renewable energy work. She has appeared as junior counsel, led by Thea Osmund-Smith at several successful large solar farm inquiries, all just falling below the NSIP threshold of 50MW. She is part of the National Infrastructure Planning Association’s (NIPA) early years practitioners’ group. Cases include: •

inquiry re: 45 MW solar farm and battery storage in Bramley, Hampshire APP/H1705/W/22/3304561 (led by Thea Osmund-Smith)

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• • • •

inquiry re: 49.9 MW solar farm and battery storage in Langford, Devon APP/Y1138/W/22/3293104 (led by Thea Osmund-Smith) inquiry re: 49.9 MW solar farm and battery storage in Greatworth, Northamptonshire APP/W2845/W/23/3315771 (led by Thea Osmund-Smith) inquiry re: 12MW solar farm in Cruxton in the Dorset AONB APP/D1265/W/23/3317593 (led

by Thea Osmund-Smith) inquiry re: 49.9MW solar farm and battery storage in Halloughton, Southwell APP/B3030/W/21/3279533 (assisted Thea Osmund-Smith during pupillage)

Nature Conservation Odette has advised several clients in the public and private sector on nature conservation law, including on the implementation of biodiversity net gain under the Environment Act 2021. Together with Nina Pindham, she was instructed by the Planning Advisory Service to provide legal advice on the implications of the Habitats Regulations for all local authorities affected by Natural England’s “nutrient neutrality” guidance. She has also been junior counsel at planning inquiries raising issues of phosphate mitigation. Cases include: • •

inquiry re: up to 80 dwellings, local centre, and associated infrastructure in Cotford St Luke, Somerset APP/W3330/W/22/3304839 (led by Chris Young KC) inquiry re: up to 90 dwellings with associated infrastructure in Glastonbury, Mendip APP/Q3305/W/22/3311900 (led by Thea Osmund-Smith)

Environmental Protection Act and Waste Odette has successfully conducted a number of waste prosecutions under the Environmental Protection Act 1990. She has appeared unled in the Crown Court for sentencing of such offences, with one of her prosecutions resulting in significant custodial sentences for two defendants. She has also been instructed in a statutory nuisance prosecution. Cases include: • • • •

Solihull Council v Biddle and Edwards Herefordshire Council v Turley Herefordshire Council v Biddle, Biddle and Mellings Wyre Forest District Council v Harris

Minerals Odette enjoys the technical dimensions of minerals work. She recently represented the Appellant as junior counsel to Richard Kimblin KC at a successful two-week minerals inquiry in Devon, which involved complex questions around hydrogeology, private water supplies, need, highways, ecology, and heritage: •

inquiry re: extraction of 1.5million tonnes of sand and gravel in Ottery St Mary, Devon APP/J1155/W/22/3299799 & APP/J1155/W/22/3299802 (led by Richard Kimblin KC)

Water Law Odette is part of the UKELA Water Working party and has a particular interest in water law. She has advised statutory undertakers on interpretation of the Water Industry Act 1991 and the suite of

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retained EU law, including the Urban Waste Water Treatment Regulations, the Water Framework Directive Regulations, and the Environmental Permitting Regulations.

Climate Change During pupillage, Odette assisted her supervisor Nina Pindham on two landmark climate change cases: the successful judicial review of the Government’s Net Zero Strategy (R (Friends of the Earth et al.) v SS BEIS [2022] EWHC 1841 (Admin)); and the Court of Appeal case on EIA assessment and downstream greenhouse gas emissions R (Finch) v Surrey County Council [2022] EWCA Civ 187 (which is subject to an appeal to the Supreme Court). Before coming to the Bar, Odette volunteered for the Environmental Law Foundation researching local authorities’ climate change emergency declarations. As a law student volunteer, she also assisted Plan B Earth in drafting its human rights submissions in R(Friends of the Earth Ltd et al.) v Heathrow Airport Ltd [2020] UKSC 52.

Retained EU law (EIA, Habitats, SEA) Odette has advised clients on a number of complicated questions of retained EU law, such as the application of the EIA regulations to solar and battery storage appeals. She has also provided expert legal commentary for LexisNexis on the implications of the Retained EU Law Bill for domestic environmental law. She is part of the Planning and Environmental Bar Association’s (PEBA) retained EU law working party and part of UKELA’s Environmental Assessment Working Party. In 2022, Odette was awarded a Sir John and Sophie Laws Scholarship by the Bar European Group.

Pro Bono Odette was part of the Counsel team that represented the Appellant pro bono in the Privy Council case Caryn Moss v The King (Bahamas) [2023] UKPC 28, relating to a conviction for conspiracy to murder in the Bahamas. The Privy Council quashed the 35-year sentence, on the basis that the woman had been pressured by gang members.

Languages •

French

Appointments • •

Elected Trustee of the UK Environmental Law Association (UKELA) Attorney General’s “Junior Junior” scheme

Awards • • • • •

Sir John and Sophie Laws Scholarship (Bar European Group) Queen Mother Scholarship (Middle Temple) BVS and GDL Scholarships (City University) 11KBW Prize for Public Law (City University) Major Postgraduate Scholarship (HEFCE/SOAS)

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• • •

Lady Wilson Prize (University College, Oxford) Academic Exhibition (University College, Oxford) Roger Short Scholarship (University College, Oxford)

Memberships • • • •

UKELA (UK Environmental Law Association) PEBA (Planning and Environmental Bar Association) NIPA (National Infrastructure Planning Association) The Honourable Society of the Middle Temple

Qualifications • • • •

City University, BVS, Distinction City University, GDL, Distinction SOAS University of London, MA, Distinction Oxford University, BA Philosophy Politics & Economics, First Class

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EIA and EOR Practical Case Law Update and a Look to the Future

Odette Chalaby 27th November 2023, No5 Barristers’ Chambers, London

The Beginning of the End?

 Environmental Impact Assessment  LURA Part 6  The introduction of EORs

EIA CASE LAW UPDATE

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The Project

 Ashchurch (the bridge to nowhere….)  Sizewell (the power station without any water)  Llandaff (sewage and housing)

Carbon Emissions

 Finch (scope 3 or downstream emissions)  Boswell (cumulative carbon emissions)  Frack Free Balcombe (carbon + a project point)

CASE LAW – KEY TAKEAWAYS

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ENVIRONMENTAL OUTCOMES REPORTS

Areas of Difference?  Pre-defined outcomes vs. likely significant effects  Screening  Scoping

Question Marks  Monitoring and enforcement?  BNG?  Data?  Habitats Assessment?

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EIA and EOR Practical Case Law Update and a Look to the Future Odette Chalaby oc@no5.com

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Environmental Assessment: EIA and EOR Practical case law update and a look to the future 1. The LURB is no longer, having been made law on 26th October 2023 as the Levellingup and Regeneration Act 2023 (“LURA”). Contained within the many parts of LURA are provisions that enable the Secretary of State (“SoS”) to make regulations establishing a new system of environmental assessment, known as Environmental Outcomes Reports (“EOR”). The commencement date for these provisions, which are largely to be found within Part 6 of LURA, is 26th December 2023.

2. This may well be the beginning of the end of the environmental impact assessment (“EIA”) regime as we know it. However, it is very much only the beginning of the end.

For now, while LURA gives powers to the SoS to establish the EOR system, we have no implementing regulations, nor any draft text for these. The Government has consulted on some of the “principles” that should be behind the detail of EOR regime, but no response has been received since that consultation closed in June. 1 3. Until the new system is implemented through secondary regulations, the old system must continue to apply. Accordingly, this paper gives (a) a brief case law update on EIA, and (b) sets out an update on where we are at in terms of EORs. Part 1: EIA case law update 4. As readers will be very familiar with, the core of our current EIA regime is set out in the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (“the EIA Regulations”) and the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 (“the Infrastructure EIA Regulations”). (i)

The project

5. There have been a handful of fairly recent cases that deal with a point that has repeatedly featured in the EIA case law over many years – what is the “project” for the

1 https://www.gov.uk/government/consultations/environmental-outcomes-reports-a-new-approach-to-

environmental-assessment

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purposes of EIA. They are R (Ashchurch Rural Parish Council) v Tewkesbury Borough Council [2023] EWCA 101 (“Ashchurch”), R (Together against Sizewell C Ltd) v SoS ESNZ [2023] EWHC 1526 (Admin) (“Sizewell”). and R (Llandaff North Residents Association) v Cardiff Council [2023] EWHC 1731 (Admin) (“Llandaff”). Two of these cases touch on a new angle to the issue, which is whether the “project” includes associated utility infrastructure.

6. It is well-established that the question of what counts as the “project” in any particular case is a matter of judgment for the decision-maker (see R (Wingfield) v Canterbury City Council [2020] J.P.L 154 (“Wingfield”) at §63). In Wingfield, Lang J at §64 indicated four “relevant” factors in reaching such a determination: a. Common ownership – if the sites are promoted by the same person, that may indicate they are single projects. b. Simultaneous determinations – if the decisions are taken on the same day, by the same committee, relying on reports which cross-refer, that may also indicate they are single projects. c. Functional interdependence – where one part of a development could not function without the other, this may also indicate they constitute a single project. d. Standalone projects – where a development is justified on its own merits and would be pursued independently, that may indicate they are separate projects.

Ashchurch 7. The first of the recent cases is Ashchurch. The unusual factual matrix was as follows. a. Tewkesbury Borough Council had produced a masterplan for a potential development of up to 10,195 homes, employment land, and related infrastructure, to be delivered in phases. b. The masterplan recognised that delivery of Phase 1 required as an essential prerequisite provision of a bridge over the main rail line. It was common ground that the sole purpose of the bridge was to facilitate the housing development. c. Permission was sought and granted for the bridge on its own without any housing, due to there being immediate funding available from Homes England. d. The bridge is known locally as “the bridge to nowhere,” because after it has been constructed, there will be no connecting roads on either side, just a bridge in the middle of a field. Without a functioning highway unlocking the land within the Phase 1 area, the bridge will serve no useful purpose.

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8. In the decision documents, there was no discussion of whether the bridge was part of a wider project; it was simply treated in isolation. In terms of the EIA screening, in determining whether the “project” would likely have any significant effects on the environment, the Council had disregarded any future development and considered the bridge on its own.

9. The challenge to the grant of permission was dismissed in the High Court, but the Claimant appealed to the Court of Appeal. On Ground 3, the Claimant argued that the judge had erred in his analysis of whether the Council had unlawfully considered that the "project" for the purposes of the EIA Regulations was the bridge in isolation. It was contended that: a. the High Court Judge had failed to address the Claimant’s argument that the Council had applied the incorrect legal test; and b. the Judge had erred in finding that the development of the bridge was a single project for the purpose of the EIA Regulations, given that the bridge had no purpose of its own but was to be built solely to serve future development.

10. The Court of Appeal upheld the appeal. It held that the Council, in deciding not to carry out an EIA Assessment, had not considered, as it was legally obliged to, whether the bridge application was an integral part of a larger project (see §96). The bridge serves no purpose other than to unlock the sites to the east of the railway line for development and is of no use without a functioning highway running across it (see §98). In such unusual circumstances, the Council’s failure to ask the right questions vitiated the decision. The Judge had failed to address the Claimant’s arguments. The appeal was allowed.

Sizewell 11. The second case is Sizewell. This concerned a challenge under the Planning Act 2008 against a decision of the SoS to make a Development Consent Order (“DCO”) for a nuclear power station known as Sizewell C in Suffolk.

12. At the time of the examination, the developer could not identify a permanent supply of potable water for the power station, because the choice of supply had not yet been

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decided by the statutory undertaker, Northumbrian Water (“the undertaker”). The supply would eventually be decided as part of the preparation of a Water Resources Management Plan (“WRMP”) under the Water Industry Act 1991 (“the WIA”) for Essex and Suffolk over the period 2025 to 2050. The power station could not be licensed by the Office for Nuclear Regulation without a water supply, which meant there was no possibility of the development going ahead without it (see the Judgment at §10).

13. The Examining Panel concluded that because the water supply could not be identified, the cumulative environmental effects of the project could not properly be considered, and they could not recommend approval.

14. After receipt of the Panel’s report, the SoS sought more information from the developer and the undertaker. As explained in the Judgment at §§11-13, the undertaker advised that it could not meet the station’s long-term demand from existing resources, and that it was looking at a number of options for new supplies. The developer highlighted that the undertaker is under a duty under the WIA ss.37 and 37A to identify new water resources to meet demands for the region. The WRMP would in turn require Strategic Environmental Assessment (“SEA”) and a Habitats Regulation Assessment (“HRA”).

Planning decisions should assume other regimes will be properly applied.

15. The SoS granted the DCO. The action group challenged the decision on seven grounds. We are here concerned with ground 1, which was that in breach of reg.63(1) of The Conservation of Habitats and Species Regulations 2017 (“the Habitats Regulations”), the SoS had failed to assess the environmental impacts of the “project”, which it was claimed included the necessary potable water solution.

16. It was common ground that the principles set out in the case law on the EIA Regulations (from e.g. Wingfield) are applicable when considering the scope of a project under the Habitats Regulations (see §69 of the Judgment). Taking that case law into account, the Claimant submitted that without water, the project was incomplete and could not function, which it was alleged meant the water supply and the power station were “functionally interdependent” (the third Wingfield factor).

17. Holgate J disagreed. He reviewed the extant case law on the “project” point, revisiting and expanding on number of the key principles. In particular, he held that:

a. What counts as the project is matter of judgment for the decision-maker, that can only be challenged on Wednesbury grounds (§70).

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b. “Salami-slicing”, i.e. splitting a project into smaller components that fall below the threshold to avoid doing any EIA, is prohibited by the courts (§71). c. Cumulative effects from two sets of works that interact does not mean that they are same project (§72). d. Wingfield provided a non-exhaustive list of factors (as set out above) that might indicate that two developments are part of the same project. The weight to be given to them will depend upon the circumstances of each case and is a matter for the decision maker (§73).

18. In this case, the Defendant was correct, having regard to these and to other factors, that the water supply and power station were not part of the same project. The following factors were particularly relevant (see §85 et. seq.): a. An assessment of the water supply impacts would not be possible to carry out until the solution was chosen – there was nothing to assess. b. The permanent water supply was not an “integral” part of the proposal. c. There would be a need to make additional water supplies available even without the project – which tells against functional interdependence. d. There was separate “ownership” of the WRMP and nuclear power project. e. The WRMP and nuclear station were subject to asynchronous determination processes. f.

The WRMP was subject to controls of other non-planning regimes and would require HRA/SEA, with any new works also requiring a new planning application.

19. Holgate J was also keen to point out the wider implications of the Claimant’s argument, noting the potentially significant ramifications for utility companies of a finding that utility infrastructure and development always form part of the same project, with the risk that would lead to sclerosis in the planning system (§91).

Llandaff 20. The third case on the “project” point is Llandaff. A similar point about utilities arises to that in Sizewell.

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21. In 2016, Cardiff Council adopted its Local Development Plan 2006-2026. That included an allocation of a large area of land for mixed use development with a minimum of 5,000 homes. There had been a lengthy period of consultation prior to adoption, including with Dŵr Cymru (Welsh Water), as statutory undertaker with the responsibility of providing a sewerage system under s.94 WIA 1991.

22. The developer secured outline consent in 2017 for 6,000 homes on part of the allocation. The application had been accompanied by an ES, which stated that the undertaker had confirmed that the significant foul sewage that would be generated could be accommodated on the network. However, a condition was imposed on the permission requiring a hydraulic modelling assessment before the extent of infrastructure improvements and storm water removal from the network could be finalised.

23. In 2022, the Council granted Dŵr Cymru permission to build a pumping station to serve the proposal about 1km away. The application was accompanied by a planning statement by Dŵr Cymru’s consultants, Arup, which stated that the need for the proposed development “derives from” the grant of planning permission for 6,000 homes. Arup submitted a screening request for the sewage scheme that stated it was “effectively part of” the housing development on the basis that it would provide that additional capacity needed “to serve the increase in the local population size.”

24. The authority issued a negative screening opinion on the basis that the sewage scheme and the residential development were stand-alone projects and granted consent. Local residents challenged the permission for the pumping station.

25. The key ground for the purposes of this paper is ground 1, by which the Claimant alleged that the authority had failed to take into account a functional interdependence between the housing development and pumping station, and wrongly took into account the fact that the pumping station would serve other developments in the area, in deciding that no EIA was required.

26. As set out at §32 of the Judgment, the screening opinion concluded that the pumping station and housing were two separate projects, for the following reasons: a. The two schemes would not be located on adjacent land.

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b. One was being carried out by the undertaker and the other by the housing developer. c. The pumping station was being undertaken not only to serve the particular housing in question but also other existing and potential developments in the area, so that there was a functional relationship between the two but no functional interdependence.

27. The focus of the Claimant’s case, like the claim in Sizewell, was on functional interdependence. As summarised in the Judgment at §33, the Claimant alleged that the sewage station and housing were functionally interdependent, because: they are dependent on one another, however else the pumping station might have been funded; the fact that pumping station may serve other developments in the area is immaterial; and the pumping station is required to serve the housing development.

28. However, the Judge concluded that the authority’s decision was lawful, dismissing the claim. He concluded at §34 that the fact that the pumping station is needed for the housing development does not mean that it will not also serve other existing and potential developments in the area, and the officer and the authority were entitled to have regard to those matters. Accordingly, there was no functional interdependence vitiating the decision.

29. The key takeaway from all three cases? Make sure that the project point if it might arise is considered at an early stage. If it is expressly taken into account by the decision-maker, that will result in an evaluative judgement that is hard to challenge in Court. Failure to consider the matter could leave decisions vulnerable to challenge. (ii)

Climate and assessing emissions

30. This paper considers three main cases: R (Finch) v Surrey County Council [2022] EWCA Civ 187 (“Finch”); R (Boswell) v SoS [2023] EWHC 1710 (Admin) (“Boswell”); and R (Frack Free Balcombe Residents Association) v SoS [2023] EWHC 2548 (Admin) (“Frack Free Balcombe”).

Finch

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31. Turning first, very briefly, to Finch. This case has been discussed thoroughly by many commentators since the Court of Appeal’s judgment last year. The Supreme Court’s decision is expected early next year.

32. On that basis, I do not go into detail on this case. The essential question which the Supreme Court will have to decide is whether the EIA of a commercial oil well proposal in Surrey, which was granted planning permission by the County Council, should have involved an assessment of “downstream” or “scope 3” greenhouse gas (“GHG”) emissions.

33. Reg. 4(2) of the EIA Regulations requires that the EIA must identify, describe and assess in an appropriate manner, in light of each individual case, the “direct and indirect significant effects” of the proposed development on a number of factors including “climate”. 2 34. Paragraph 4 of Schedule 4 requires the Environmental Statement (“ES”) to provide "[a] description of the likely significant effects of the development on the environment resulting from", among other things, "(f) the impact of the project on climate (for example the nature and magnitude of greenhouse gas emissions) ….". It also states that "[the] description of the likely significant effects on the factors specified in regulation 4(2) should cover the direct effects and any indirect, secondary, cumulative, transboundary, short-term, medium-term and long-term, permanent and temporary, positive and negative effects of the development …". 3 35. The Council had not required as part of the ES any assessment of downstream emissions, namely those that would result from the eventual sale and use of the oil extracted on the open market. That decision was judicially reviewed by a local campaigner.

36. Mr Justice Holgate in the High Court dismissed the claim. He held that downstream emissions from the use of refined oil products would not be effects of the development itself on the environment, so would be incapable of falling within the scope of EIA (see §110 of the High Court Judgment).

2 Materially the same provision is found at reg.5(2) of the Infrastructure EIA Regulations.

3 The same provision is found in the Infrastructure EIA Regulations.

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37. The majority of the Court of Appeal took a different view, holding that whether or not downstream emissions are likely significant indirect effects is a matter of fact and judgement for the decision-maker. As such, it is for the decision-maker to come to a view in each case depending on the degree of connection between the development and the eventual emissions as to whether “scope 3” should be included. In the words of Lindblom LJ at §40 of the Court of Appeal’s Judgment: "… whether a particular impact on the environment is truly a “likely significant [effect]” of the proposed development ... is ultimately a matter of fact and evaluative judgment for the authority”.

38. Four organisations intervened in the Supreme Court, including the Office for Environmental Protection (“OEP”) and West Cumbria Mining Ltd. That is reflective of a widely held view that the impacts of this case could be of profound significance for projects not only in the fossil fuel extraction sector but more widely, and for the country’s Net Zero trajectory. As set out in the OEP’s submissions: "… the outcome of Finch in the Court of Appeal raises serious concerns about the ability of the EIA regime to capture climate impacts" (§9 of the OEP’s Submissions).

39. There is a risk that the Court of Appeal’s approach would produce an unstable result that could lead to inconsistencies in decision-making and increased litigation. It remains to be seen whether the Supreme Court agrees. Essentially three options appear to be open to it: to agree with Mr Justice Holgate that scope 3 emissions were incapable of being considered; agree with the Court of Appeal that it was all a matter of judgement; or reach the conclusion pressed by Ms Finch that it was an error of law not to consider scope 3 emissions in the circumstances.

40. While this paper is focused on EIA, I point readers with an interest in this topic to Mr Justice Holgate’s very recent discussion of the implications of Finch in a Strategic Environmental Assessment (“SEA”) context in R (Greenpeace) v SoS [2023] EWHC 2608 (Admin) at §§87-116.

Boswell 41. The second case on GHG emissions relates to a different question: how to assess cumulative GHG impacts of projects in the same area, when carbon budgets are

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national, and the long-term impact of increases in GHG emissions is not restricted to the area from where they originated.

42. Like the EIA Regulations, the Infrastructure EIA Regulations require consideration of direct and indirect significant effects on climate (reg. 5), including GHG emissions (§4 of Schedule 4). Paragraph 5 of Schedule 4 requires the ES to assess likely significant effects resulting from cumulation with other existing and / or proposed projects – then states that the description of effects should include “cumulative” effects. 4 43. In light of these provisions, Dr Boswell challenged three decisions of the SoS to grant consent for three nationally significant infrastructure project (“NSIP”) road schemes in Broadland, Norfolk.

44. Before deciding to grant consent, the SoS had assessed the carbon emissions expected to be generated by each scheme, including the emissions from vehicles using the roads once operational. He acknowledged that each scheme would lead to an increase in carbon emissions, but concluded that when compared with the UK’s national carbon budgets the increase for each would not be significant (0.001% 0.004% of any carbon budget), such that the schemes were compatible with the UK’s trajectory towards Net Zero (see §2).

45. National carbon budgets are set for five-year periods under the Climate Change Act 2008 (as amended) (section 4(1)(a)) and must be set with a view to meeting the overarching “Net Zero” target for 2050 (section 8(2)).

46. The thrust of Dr Boswell’s challenge was that given the SoS is under a duty under the Infrastructure EIA Regulations to assess cumulative effects, he acted unlawfully in failing to assess the combined carbon emissions from the three schemes against the UK’s national budgets (see §3). Dr Boswell had calculated that together the schemes would make up almost half a percent of the UK’s 6th carbon budget – which he said was significant for relatively small schemes in a relatively small area (§4).

4 The same provision is to be found in the EIA Regulations.

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47. Dr Boswell did not suggest that the three schemes were one project. Nor did he suggest that the applicant had deliberately separated out (i.e. salami-sliced) the three projects so as to avoid the requirements for EIA. Each road scheme has undergone its own EIA. 48. The High Court concluded that the SoS’s approach to cumulative emissions did not breach the Infrastructure EIA Regulations and was lawful (see §6). In summary: a. The question of what impacts should be addressed cumulatively; how the impacts might occur; whether the effects are likely to be significant; and how they should be assessed are all matters of judgment (§43 and §77). b. The task for the Court is to consider whether that evaluative judgment falls outside the range of reasonable decisions or whether there is a demonstrable flaw in the reasoning (§46). c. On the facts, some consideration was given to the cumulative impacts from the three road schemes. A figure was produced for the combined emissions from the three schemes (and other local schemes), satisfying the requirement of §5 of Schedule 4 of the Infrastructure EIA Regulations for a “description” of the likely significant effects of the development on the environment resulting from the cumulation of effects (§78). While the figure produced was not assessed for significance against the UK’s national carbon budgets, this was a matter of evaluative judgment for the SoS. d. The SoS’s reasons for not comparing the combined emissions against the national target were, broadly speaking, threefold: 1) there is no single prescribed approach to assessing cumulative impacts of carbon emissions; 2) assessing cumulative impacts of carbon emissions differs from other environmental impacts, because carbon impacts are not geographically limited to one area; and 3) the appropriate basis for assessing the significance of the emissions was against the UK’s national carbon budgets (§63). e. Recent caselaw confirms that, on the basis of current policy and law, it is permissible for a decision maker to look at the scale of carbon emissions relative to a national target (§69). 5 The proposition that the impact of carbon emissions is not limited to a geographical boundary is a scientific assessment

5 See R (GOESA) v Eastleigh Borough Council [2022] EWHC 1221 (Admin) at §122 – 123.

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to which the Court should afford respect (§73). The Court also had regard to the IEMA Guidance on this matter. 6 f.

Accordingly, there was a logical coherence to the SoS’s decision not to compare the combined carbon emissions from local road schemes against the UK’s national carbon target, when those carbon emissions do not have a local geographic limit. Independent guidance counsels against the arbitrary cumulation of projects in these circumstances. It does not matter whether the emissions are from a road in Norfolk or Oxford. Their impact is the same and the target against which they are being assessed is national not local (§81-83).

g. Dr Boswell’s concerns about the limited value of the exercise undertaken, of assessing the significance of an individual development against a national carbon target, was acknowledged (§85). 7 However, on the state of present scientific knowledge, such an approach cannot be considered unlawful.

49. In summary, a key takeaway is that assessment of cumulative impacts is a question of judgment (see §41, §43). In practical terms, that means that the best way of reaching a legally sound decision is make sure it is addressed by the decision-maker and in the ES/EIA. If cumulative impacts are considered and a judgement reached, that judgement will be hard to challenge – except on the very high bar of rationality grounds.

In this case, the SoS had accepted that the three schemes were related projects, and a cumulative assessment was carried out – therefore Dr Boswell had to challenge the adequacy of that assessment on rationality grounds (see §45).

50. A second point to takeaway is that carbon emissions are in many ways a sui generis category for the purposes of considering cumulative environmental effects, given their impacts do not have a geographical boundary (unlike noise). As our techniques and understanding become more sophisticated, and as Net Zero comes ever closer, this is likely to be a ripe area for further guidance and litigation.

51. A final point of interest is to relate this case back to Finch. In the case of a road scheme, it is commonly accepted that a GHG assessment should look at the emissions that result from the eventual end-users of the road, which are downstream emissions.

6 Which provides that “Effects of GHG emission from specific cumulative projects therefore in general should not

be individually assessed as there is no basis for selecting any particular (or more than one) cumulative project that has GHG emission for assessment over any other” – see quote at §72 of the judgment.

7 Ibid.

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In the case of fossil fuel extraction, we do not look at the emissions that result from the eventual end-users of the oil extracted from the well. One way to understand the difference might be that use of the road can in some senses be understood as part of the operation of the development, whereas the oil burning end-users are one further step removed. Whether that distinction is tenable or achieves what the EIA regime sets out to do may be subject to further clarification from the Supreme Court.

Frack Free Balcombe 52. This case was a statutory challenge to the decision of an Inspector to grant planning permission for exploration and appraisal of commercial hydrocarbon production at a potential oil well in Haywards Heath in West Sussex. The site was located within an Area of Outstanding Natural Beauty (“AONB”), and the County Council had refused permission on the basis that the AONB “exceptional circumstances” test in national and local policy was not met.

53. The Inspector in their decision letter (“DL”) had found that there is a significant national need for onshore hydrocarbon exploration and assessment for considerable time to come, which weighed “greatly in favour” of the appeal (see DL50).

54. Under Ground 4, the Claimant argued that the Inspector had failed to comply with the EIA Regulations in two regards: (a) that the Council and Secretary of State had failed to properly consider the “project” as a whole; and (b) there was no consideration of the emissions relevant to climate change.

55. The development had been subject to a screening opinion, which concluded that the proposal was not EIA development and so did not require an ES. 56. As regards the “project” point, the Claimant argued that the “project” included not just exploration and monitoring but also future commercial production (relying on Ashchurch, where the project was not just the bridge but also the future housing development). However, the Court (at §50) held that the case was more directly analogous with the shale gas exploration case of R (Preston New Road Action Group) v SoS [2018] Env LR 18, in which Lindblom LJ concluded at §63 that the scheme was

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“a single, clearly defined project limited to exploration and … associated monitoring” and “did not include any subsequent commercial production”.

57. The Court held that Ashchurch represented a different situation, where the bridge was not a definable separate project, but rather one part of a wider scheme which had no benefit or purpose unless the entire scheme was built (see §51 of the Judgment).

Here, the exploration and assessment may or may not lead to a later application for production, so represents a definable separate project (see §52).

58. As to ground 4(b), the Claimant argued that the Council had unlawfully failed to consider climate change emissions as part of the screening opinion. The Court disagreed, concluding that on the basis that the development was of a small scale, far below the indicative threshold for EIA development of this sort, there needed to be some “realism” in the analysis (see §61). In Lieven J’s opinion, given that small scale, it was “extremely unlikely” that the GHG emissions would have met the threshold of being “significant likely effects” for EIA purposes.

59. So, in this case officers got away with failing to deal with GHG impacts. But had the development been larger, the outcome may not have been quite so clear. (iii)

Key takeaways

60. EIA involves judgment in many regards – as to the assessment of cumulative impacts; as to how to assess the various scopes of GHG emissions; and as to what is the relevant “project”. What this means is that challenges on these grounds are rare successes – if the relevant points have been considered by the decision-maker, any challenger needs to persuade the Court that the conclusion is irrational.

61. In practical terms, Applicants would be well-advised to ensure that decision-makers have all the relevant information before them on these points when they arise and expressly consider them, coming to a reasoned judgment.

62. Finally, it is also clear that regarding climate impacts in particular (both cumulative and downstream), the science and guidance are still evolving. Net zero is approaching.

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The cases presented in this paper are unlikely to represent the last word – and we can expect further litigation in the coming years.

Part 2: The Future and EORs 63. As is clear, the case law on EIA is not holding still while the Government continues to progress its plan to replace the entire regime with EORs in the coming years. But what is that plan, when will it come into effect, and will the existing case law remain relevant?

64. Part 6 of LURA contains powers for the SoS to use secondary regulations to replace EIA and SEA with a new system of EORs to assess potential environmental effects of relevant plans and major projects.

65. Section 153(4) LURA explains that an EOR, in relation to a proposed relevant consent or proposed relevant plan, means: “… a written report which assesses— (a)the extent to which the proposed relevant consent or proposed relevant plan would, or is likely to, impact on the delivery of specified environmental outcomes, (b)any proposals for increasing the extent to which a specified environmental outcome is delivered, (c)any steps that may be proposed for the purposes of— (i)avoiding the effects of a specified environmental outcome not being delivered to any extent; (ii)so far as the effects of a specified environmental outcome not being delivered to any extent cannot be avoided, mitigating those effects; (iii)so far as the effects of a specified environmental outcome not being delivered to any extent cannot be avoided or mitigated, compensating for the specified environmental outcome not being delivered, and (d)any proposals about how— (i)the impact of the proposed relevant consent or proposed relevant plan on the delivery of a specified environmental outcome, or (ii)the taking of any proposed steps of the kind mentioned in paragraph (c), should be monitored or secured.”

66. Under section 152 LURA, the SoS will have the power to make regulations to set specified environmental outcomes in relation to environmental protection. Under section 153, we are told that EOR regulations can require an EOR to be prepared in relation to a proposed relevant consent or plan. Where a report is required, consent

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may not be given without it and must be taken into account in decision-making (s.153(2)).

67. From March to June of this year (2023), the Government ran a consultation seeking views on its proposed approach to developing the EOR system. As that consultation made clear, currently EORs are only intended to replace EIA and SEA in England, not the rest of the UK. 68. The consultation establishes that the Government’s intention is to “simply and streamline” the environmental assessment process by introducing an “outcomesbased” approach. However, there remains significant uncertainty about what any new system might look like, and in particular how different or similar it would be to EIA. 69. As far as can be gleaned from the initial consultation, which does not propose concrete suggestions for future regulations but instead asks prior questions about principles and approach, there are likely to be several potential areas of real difference between EORs and EIA. 70. First, the focus of the assessment would shift from an analysis of likely significant effects on the environment to reporting against pre-defined national priority “outcomes” (to be set out in regulations), using supporting “indicators” (to be set out in guidance). a. The consultation indicates that the “outcomes” would be high-level, with the example provided being an “increase in the abundance of protected species and supporting habitat”. The outcomes would cover a series of topics that align with the existing EIA regime: air quality; landscape and seascape; geodiversity, soil and sediment; noise and vibration; water; waste; and cultural heritage and archaeology. In light of the proliferation of recent case law on this matter, it is striking and troubling that under the consultation there is currently not proposed be an outcome related to climate change. b. It remains unclear what the “indicators” would be. While the consultation text says that these would comprise national data sets, the example “indicator” provided in the Annex refers to changes “in the relevant geography, agreed study area or immediate locality”.

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71. In all, just how different this system of reporting against pre-defined national outcomes and indicators would be from the current approach of reporting on likely significant environmental effects remains unclear and will depend on the substance of the secondary regulations.

72. The second area of potential difference relates to “screening” – so that very first stage of determining whether a project requires environmental assessment at all. The consultation makes clear that the Government is not content with the current approach, with particular concern expressed around the amount of litigation and an associated belief that decisions are being driven by fear of legal challenge. The stated intention is to have clearer rules about which developments do or do not require EIA, with less scope for judgement – albeit it is not clear exactly how that is to be achieved. The consultation suggests an intention to change the focus of the screening regime from the size of the development to its proximity to a sensitive site or receptor.

73. The third area that is proposed to change is “scoping” – the process of deciding which environmental effects need to be reported on. Again, the consultation states that the current approach has limited value, requiring significant and, in the Government’s view, unnecessary duplicative work. The new proposal for EORs would be that a set list of pre-defined outcomes or topic areas would all be “scoped in” to every assessment, whether or not there is likely to be a significant environmental impact.

While that could reduce litigation, there is also a risk it could lead to increased burdens through more work for those producing and evaluating reports.

74. Replacing the entire EIA regime is clearly a very significant and challenging undertaking that will take time, resources, and will inevitably lead to further litigation in the coming years as to its interpretation. However, even at this very early stage, a number of questions arise on the limited information we have. a. First enforcement and monitoring. The consultation lacks detail on how the EOR system is to be enforced. Critically, what will happen if the actual effects of the proposed development differ from those envisaged by the EOR? Who will be checking? And how will monitoring and enforcement be funded? Again, this will all be worked out through secondary regulations, see ss.155 and 160 of LURA.

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b. A second linked question is how EORs will work with biodiversity net gain – both in terms of the outcomes, but also in terms of monitoring and enforcement, and indeed how under-resourced Councils will be checking up on performance. c. A third question mark relates to the data that would be necessary for this new system to work. How will data about the baseline be collected? Who will operate and manage the immense amount of environmental information we are likely to require? Where will it be stored – will it be available to the public in an online system? Who will fund it? d. Fourthly, how will EORs fit in with our existing system of Habitats Assessment, which appears to be staying put for the immediate future. LURA section 164(2) sets out that EOR regulations can make provision for treating anything done in relation to an EOR as satisfying a requirement under the Habitats Regulations, as well as for disapplying or modifying any part of the Habitats Regulations where preparation of an EOR is required. While this was not flagged in the consultation, it appears to give the SoS the power to amend the habitats regime “through the back door”, by allowing them to create EOR regulations that allow that report to also stand as the Habitats Regulation Assessment for a project.

75. In all, the likely shape of the new regime remains opaque for now. At this stage, it is hard to tell the extent to which existing EIA case law, including that discussed in Part 1 of this paper, will be relevant. It is likely that some if it will, and some of it will not, but we will have to wait to see the detail down the line.

76. One matter is clear, and that is that the SoS can only lawfully make EOR regulations if they are satisfied that will not result in an overall level of environmental protection that is less than that provided by environmental law at the time LURA was passed (section 156(1)). EOR Regulations must also be consistent with the UK's international obligations (section 156(2)).

77. We are also some distance from implementation, with draft regulations unlikely until next year at the earliest following, and the consultation then indicating an implementation period of up to two years.

13th November 2023 ODETTE CHALABY oc@no5.com

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No5 Barristers’ Chambers +44 (0) 845 210 5555 This paper is presented for information only and does not constitute legal advice.

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Thea Osmund-Smith Environmental Law

Year of Call: 2010 Email Clerks: environmental@no5.com

Thea is consistently rated by Planning Magazine as one of the top planning barristers under 35 years old and was voted No.2 in 2018. In 2017 she appeared on the overall Top Rated Planning Juniors list for the first time, and in 2018, Thea was ranked as the No.8 planning junior overall.

Thea is a specialist planning and environmental law practitioner and regularly advises a wide range of clients including land promoters, developers, commercial clients, and local planning authorities and parish council’s.

Chambers and Partners 2019 comments that Thea is: “Really good with clients, really good on her feet and exceptional with detail. Her work ethic is brilliant.” “Incredibly thorough, incredibly focused and also a very engaging person. A great advocate.”

Thea is regularly instructed to appear in High Court matters on behalf of Claimants and Defendants and has extensive experience of advising, drafting and advocacy in judicial review and section 288 and 289 claims.

Thea is familiar with the procedural requirements of High Court litigation, and the relevant costs provisions. Thea has considerable experience in advising on costs protection and the application of the Aarhus Convention. In 2018, Thea was appointed to the Attorney General’s C Panel of Counsel (London).

Planning Hearings, Inquiries and Examinations Thea is an experienced Inquiry practitioner, often appearing at multi-week Inquiries on behalf of land promoters, developers, and also for local authorities. Thea advises on a broad spectrum of planning related matters at Hearings, Inquiries and Examinations including: Local Plans Thea regularly advises land promoters and developers on the promotion of sites through the local plan process, as well as on issues such as green belt review. Thea has been involved in the Coventry Core Strategy, and appeared at the Warwick Local Plan Examination. Thea also represented a land promoter at the Examination into the soundness of North Somerset’s Consequential Changes to Policies following a successful Judicial Review. Thea appeared at the Examination of the Kingswood Neighbourhood Development Plan, and has drafted representations for the King’s Lynn and West Norfolk Local Plan. Thea has advised in relation to the Cornwall Site Allocations DPD, and is presently involved in the Rushcliffe Local Plan Part 2, North Warwickshire Local Plan, and the South Staffordshire Local Plan Review.

Residential Thea has extensive experience of dealing with objectively assessed housing need, five year housing land supply issues, and prematurity in the context of local and neighbourhood Plans. Thea has appeared at a number of planning Inquiries and hearings in England and Wales both promoting and objecting to housing schemes, and has dealt with a wide range of issues including landscape and character, transport, drainage, heritage, ecology, locational sustainability and environmental impact.

Thea has recently secured permission for 365 dwellings in Llay, Wrexham, 80 dwellings in Barnack (Peterborough) 180 dwellings in Buckden (Huntingdonshire), 30 dwellings in Enstone West Oxfordshire, and 130 dwellings in Henstridge (South Somerset) Thea has a particular interest in heritage issues, and believes that early advice is crucial to ensure that impacts are properly considered within the statutory and policy Framework.

Thea is often instructed to review documents prior to application and considers this a valuable service that all developers

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should consider using for more complex and/or EIA development.

Thea also has a keen interest in the Habitats Regulations and has advised extensively on the implications of People Over Wind, Peter Sweetman v Coillte Teoranta C-323/17 Recent Appeals Include - Land South of Oxford Road, Enstone, Oxfordshire, 30 dwellings, APP/D3125/W/17/3182718 (heritage, landscape, emerging plan) - Land West of Stalbridge Road, Henstridge, 130 dwellings, APP/R3325/W/18/3197690 (locational sustainability and transport) - Land off Stone Path Drive Hatfield Peverel (conjoined Inquiry) 140/80 dwellings, APP/Z1510/V/17/3180725, (heritage, landscape, ecology, air quality, transport - Land off The Common, Barwell 185 dwellings, APP/K2420/W/17/3188948 185 (Green Wedge, housing land supply, transport) - Land of Town Road, Cliffe Woods, Medway 225 dwellings APP/A2280/W/17/3175461 (landscape, sustainability) - Land at Home Farm, Llay, Wrexham 365 dwellings, APP/H6955/A/16/3147116 (landscape, transport, ecology) - Land off Lucks Lane, Buckden, Cambridgeshire 180 dwellings, APP/H0520/W/16/3159161(housing land supply, objectively assessed need, transport, heritage, landscape) - Land off Uffington Road, Barnack up to 80 dwellings APP/J0540/W/16/3153303 (landscape, heritage, sustainability and housing land supply) - Land off Sherborne Road, Burbage 73 dwellings APP/K2420/W/15/3004910, (landscape, housing need and housing land supply) subject of the Jelson High Court case listed above. Thea was successful at appeal and in the High Court and Court of Appeal.

- Land off Monarchs Road, Sutterton up to 60 dwellings APP/Z2505/W/15/3010682 (open space, landscape impact) - Land at the Asps, Warwick 900 dwellings, APP/T3725/A/14/2221613 (heritage, landscape, transport) - Ledsham Road, Ellesmere Port 2000 dwellings APP/A0665/A/13/2209026 - Land off Garsdale, Saxonvale, Frome 60 dwellings APP/Q3305/W/15/3135345 (heritage issues, employment land, viability, amenity, character and appearance) - Land off Hayslan Road, Great Malvern up to 150 dwellings APP/J1860/W/15/3016539?(open space, landscape impact, valued landscape) Renewable Energy Thea has acted for promoters and objectors of wind farm development. Given the scale of turbine development and the acknowledged landscape impact of wind farms, landscape harm is a common issue as is the impact on the historic environment. Moreover, environmental impact, protection of European protected species and the Habitats Directive are also issues that often need to be addressed. Recent projects include the following: - Llaithddu Wind Farm Promoting a 27 turbine scheme in the context of a conjoined s36 Inquiry together with 5 sites and related grid connection works.

- Mynydd y Gwynt Promoting a nationally significant infrastructure project for up to 27 turbines - a decision is pending.

- Hemswell Cliff Wind Farm Thea acted on behalf of a local residents group – VOCAT in objecting to the scheme on heritage, archaeology and landscape grounds. The appeal was refused after the introduction of the new planning practice guidance because the scheme was found not to have community backing. The Secretary of State refused permission, accepting the recommendation of the Inspector. APP/B3030/W115/3003130 - Churchover Wind Farm Acting on behalf of the Parish Council objecting to a scheme of 3 turbines on heritage and landscape grounds. The decision considered arguments on the recent PPG and the meaning of “community backing” featured heavily in both the evidence and the submissions. APP/E3715/A/14/2227479 - Griffe Grange Wind Farm (APP/P1045/W/15/3130874) Thea acted on behalf of Derbyshire Dales District Council in resisting a three turbine wind farm scheme. Issue included heritage (listed building, conservation area and schedule ancient monuments), and the impact on the National Park.

Section 106 contributions, development viability and the application of the CIL Regulations Thea has advised a range on of clients on the applicability of the Regulations to specific contributions, and on the wording of 106 Agreements / Unilateral undertakings. In particular, Thea’s recent work has included advising

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infrastructure providers on the pooling of contributions, and what practical steps might be taken to avoid a conflict with the Regulations to ensure that development can be considered acceptable in planning terms. Thea appeared in front of the CIL Review Panel chaired by Liz Peace, on behalf of the National Police Chief’s Council to discuss how the CIL regime has impacted on, and was likely to impact on delivery of infrastructure in future. The Report of the Panel was published alongside the Housing White Paper and recommended that the Community Infrastructure Levy (CIL) should be replaced with a ‘hybrid system’ of a low level tariff for all developments and section 106 for larger developments.

Thea spoke at the 2018 National Conference of the Planning and Environmental Bar Association Annual conference on the topic of CIL Reform.

Compulsory Purchase (CPO) Thea has advised objectors on a range of CPO issues. Recently Thea has acted on behalf of landowners affected by the M54 to M6 Link Road, advising extensively on the compulsory acquisition of land required for the project and ecological mitigation, and in respect of the terms of the draft Development Consent Order.

Enforcement Thea regularly appears at Enforcement Inquiries and understands the important of early involvement to assists both local authorities and appellants in what can be a very complex process. In particular, Thea often advises on the principles enunciated in the case of Ahmed v Secretary of State for Communities and Local Government [2014] EWCA Civ 566 and the availability of obvious alternatives.

Further Experience Thea has written for the UK Environmental Law Association’s publication ‘e-law,’ on the issue of costs of Environmental Judicial Review, and spoke on ‘the year’s hottest cases’ at the UKELA Annual Conference . The paper she presented was published in a special issue of Environmental Law and Management. Thea also writes and regularly presents papers at seminars and conferences both on behalf of the planning group and when invited by clients to do so.

Thea has also been involved in training professional witnesses on behalf of a number of clients and together with other members of Chambers, has carried out mock Inquiries to offer experience to those who have not given evidence before.

Please contact planning@no5.com for more information.

In 2018, Thea was invite to speak at the PEBA National Conference on the top of CIL and section 106 Contributions.

Recommendations “Thea's advocacy is frankly brilliant, she is a pleasure to watch.” “Thea is a star of the junior Bar. A very strong advocate who is thorough in her preparation.” “A thoroughly modern barrister. She is brilliant and completely grounded.”

Chambers UK 2023 “Thea is able to get to the crux of complex matters very quickly. She is extremely approachable, has excellent interpersonal skills and fosters an enjoyable and productive team atmosphere. She is impressive during crossexamination and quickly adapts to changing situations.”

Legal 500 2023 "She offers detailed and commercially focused advice delivered with empathy and flair." "She clearly understands her subject and the case in hand such that she is able to expertly guide a judge through the papers with concise elegance." Chambers UK 2022 "Thea works to a very high standard of professionalism – she is extremely approachable, down to earth, friendly and easy to deal with. The advice given is clear, considered, incisive and expert." Legal 500 2022 “An exceptional junior and easy to deal with.”

Chambers UK 2021 “Methodical, very sharp and quick to resolve or see a way around issues.” “Extremely bright, efficient and proactive.”

Chambers UK 2020

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Notable Cases DLA Delivery Ltd v Baroness Cumberlege of Newick [2018] EWCA Civ 1305 West Oxfordshire District Council v Secretary of State for Communities and Local Government [2018] EWHC 3065 (Admin) Jelson Ltd v Secretary of State for Communities and Local Government [2018] EWCA Civ 24 Nottingham City Council v Secretary of State for Communities and Local Government [2017] EWHC 2243 (Admin) R. (on the application of Save Britain’s Heritage) v Liverpool City Council [2016] EWCA Civ 806 Save our Green Hills Community Ground v Secretary of State for Communities and Local Government [2016] EWHC 1929 (Admin) Jelson Ltd v Secretary of State for Communities and Local Government [2016] EWHC 2979 (Admin) Shropshire Council v Secretary of State for Communities and Local Government [2016] EWHC 2733 (Admin) Pertemps Investments Ltd v Secretary of State for Communities and Local Government [2015] EWHC 2308 (Admin) R(on the application of Hayes) v Wychavon DC [2014] EWHC 1987 (Admin) R (on the application of Leicestershire Police and Crime Commissioner) v Blaby DC [2014] EWHC 1719 (Admin) In addition, Thea has been involved in a number of challenges that have resolved prior to substantive hearings, and is happy to advise on seeking early and effective resolutions in such matters. Examples include: Malvern Hills District Council v Secretary of State for Communities and Local Government (2017) Secured consent Order quashing permission on behalf of the Council on the basis that the Inspector misinterpreted a recently adopted Local Plan policy.

Amott v Secretary of State for Communities and Local Government (2017) Resisted permission on behalf of developer client who secured planning permission for residential development following a section 78 appeal.

Bennett v Derbyshire Dales District Council (2018) Successfully resisted a challenge to the grant of planning permission by the LPA for a mixed commercial / housing development.

Edward Blake Limited v Secretary of State for Communities and Local Government (2018). Thea was successful in challenging the decision of an Inspector (APP/C1625/W/17/3177291) to refuse permission for the demolition of Prinknash Abbey to accommodate new residential development. The Secretary of State consented to Judgment.

Awards The Lord Slynn of Hadley UK Environmental Law Moot 2011, Winner Duke of Edinburgh Entrance Award, Inner Temple (2009)

Major Scholarship, Inner Temple (2009) University of Warwick Law School Prize for Best Overall Performance (2008, 2009)

Memberships UKELA Inner Temple

PEBA

Qualifications LLB, First Class, University of Warwick

BVC College of Law

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Renewables – a solar focus

Thea Osmund-Smith 29th November 2023, No5 Barristers’ Chambers, Birmingham

Why now? Climate Change, Net Zero and Energy Security

What do we need and by when?

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Other challenges

On the ground (or sea) – what has been happening?

 Largely successful TCPA Appeals although with more decisions – there are inevitably more refusals  Offshore DCOs, and the Onshore moratorium - has it ended?

Changes to the NPPF

82

Solar Appeals – Approved or Dismissed ?

Approved or Dismissed ?

Approved or Dismissed ?

83

Approved or Dismissed ?

Best and Most Versatile Agricultural Land  Scruton v Lullington  Permanent Loss?  Food Security?  Alternatives?

Bramley  R (Bramley Solar Farm Residents Group) v Secretary of State LUHC [2023] EWHC 2842 Issues:  Amendments on appeal  Landscape harm under the NPPF  Choosing which witnesses to call  Whether the PPG requires alternative assessment

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Further Reforms  NSIP Regime  Further Reform?

Renewables – a solar focus Thea Osmund-Smith theaos@no5.com

Renewables – a solar focus

Thea Osmund-Smith 27th November 2023, No5 Barristers’ Chambers, London

85

Why now? Climate Change, Net Zero and Energy Security

What do we need and by when?

Other challenges

86

On the ground (or sea) – what has been happening?

 Largely successful TCPA Appeals although with more decisions – there are inevitably more refusals  Offshore DCOs, and the Onshore moratorium - has it ended?

Changes to the NPPF

Solar Appeals – Approved or Dismissed ?

87

Approved or Dismissed ?

Approved or Dismissed ?

Approved or Dismissed ?

88

Best and Most Versatile Agricultural Land  Scruton v Lullington  Permanent Loss?  Food Security?  Alternatives?

Bramley  R (Bramley Solar Farm Residents Group) v Secretary of State LUHC [2023] EWHC 2842 Issues:  Amendments on appeal  Landscape harm under the NPPF  Choosing which witnesses to call  Whether the PPG requires alternative assessment

Further Reforms  NSIP Regime  Further Reform?

89

Renewables – a solar focus Thea Osmund-Smith theaos@no5.com

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