Environmental Weekly News Round Up – 16 February 2024

Welcome to the latest edition of our weekly Environment Law news update. As ever, we bring you developments, insights, and analysis in the world of environmental law. Also, in this occasion our Environmental Insight section addresses the recent proposal to strengthen planning policy for brownfield development.

NEWS ROUND UP

New and finalised BNG guidance

BNG became mandatory for most planning applications from 12 February 2024. The already existing guidance notes on BNG have been updated to reflect that the BNG requirements are mandatory from the date above. 

Following this development, the following guidance and form were updated replacing their draft versions from 2023:

• Planning practice guidance 
  • Biodiversity net gain – Guidance
• Developer guidance
  • Biodiversity gain plan – Form

Additionally, DEFRA published a new series of guidance notes:

• Manage biodiversity gains
  • Register a biodiversity gain site
  • Record allocation of off-site biodiversity gains to a development
  • Register a biodiversity site and allocate to a development
  • Estimate the cost of statutory biodiversity credits
  • Buy statutory biodiversity credits
  • Search the biodiversity gain sites register

The full collection of BNG guidance notes and forms is available here.

Campaign group gearing up for legal challenge over Government’s attempt to scrap nutrient neutrality 

A pre-action protocol letter was sent by Wild Justice to the Secretary of State for Environment, Food and Rural Affairs this month. The campaign group claim a notice sent to planning authorities and water companies in January represents an unlawful attempt to use guidance to introduce a change that was defeated in the House of Lords last year. 

Before the Levelling Up and Regeneration Bill became the Levelling Up and Regeneration Act in late 2023, the Government proposed amendments to the Bill requesting councils assume nutrient pollution from new development would have no impact on protected sites. However, this was voted down in the House of Lords. 

Now, the government has sent a “Notice of designation of sensitive catchment areas 2024” which seeks to require water companies to upgrade sewage infrastructure by 1 April 2030. This should consequently mean there is better pollution control and less nitrogen and phosphorus in sensitive catchment areas. However, the notice also provides that local authorities can assume these measures will be in place by the 30 April 2030 deadline when they are considering planning applications. 

Wild Justice argue this latter part of the notice would in essence have the same effect as the LURA amendments defeated in the House of Lords last year.  

The pre-action protocol letter proposes four grounds of challenge for a future judicial review: 

1. The notice unlawfully requires authorities to disregard matters which they are required to have regard to in accordance with the Habitats Regulations and planning law. 
2. The notice unlawfully fetters the discretion of authorities by prohibiting them from considering that a relevant nutrient pollution standard has not been met. 
3. The notice has been made in accordance with the Water Industry Act, but this Act does not provide the Secretary of State with the power to direct what local authorities may consider when determining a planning application. Those matters are governed by the Habitats Regulations and planning legislation.  
4. The final ground is that of irrationality. The notice is to prevent further deterioration of nutrient sensitive catchments, but the impact of the notice would be to lower the level of environmental legal protection afforded. 

It is said in the letter Wild Justice hope the matter can be resolved without recourse to legal proceedings and have asked the Secretary of State to withdraw and revise the Notice in order to remove the requirement for authorities to assume nutrient pollution standards will be met.

DEFRA’s Consultation on policies to inform updated guidance for Marine Protected Area (“MPA”) assessments. 

DEFRA have produced a consultation on new policies to inform updated guidance for MPA assessments. They aim to update the 2021 guidance for developing compensatory measures in relation to MPAs by Spring 2024. 

The consultation is seeking views on the draft definitions and principles in the previous consultation to help improve the effectiveness of the final guidance. 

The consultation is keen to hear from marine industries affected by the consenting and planning process on: 

• How applicable and feasible the updated policies are, and 
• Whether this would reduce delays to the consenting process.

William McGowan, a senior policy advisor stated in a LinkedIn post: “It's the product of tireless work alongside cross-Government colleagues and external experts on offshore wind consenting and marine ecology, and we're pleased to finally share it with you.” 

The deadline for the consultation is 22 March 2024, and it can be viewed here. 

River Action have taken the Environment Agency and DEFRA to court

­­River Action is bringing a claim for Judicial Review against the Environment Agency and DEFRA. They believe that by failing to enforce critical environmental regulation the Environment Agency has acted unlawfully; and in doing so has failed to protect the Special Area of Conservation of the River Wye from the huge levels of diffuse agricultural pollution. 

We have previously reported on the pollution caused here. In summary, the agricultural pollution is allegedly causing ecological collapse and toxic algae blooms to form on the river. 

The Judicial Review is being heard at Cardiff Civil Justice Centre. The Welsh Government is not involved. The case is being brought against the Environment Agency which has jurisdiction on the English side of the Wye, and also includes DEFRA as an interested party. 

The rules that, according to River Action, have not been enforced are the Farming Rules of 2018, which state that farmers must make sure that fertiliser does not get into watercourses, and that they should not put more on fields than is needed. 

Outside of the Court, Chair and Founder of River Action, Charles Watson, stated: 

‘The agonising death of the River Wye has unfolded in recent years like a car crash in slow motion. This magnificent watercourse, so often voted our country’s most loved river, has in recent years been assaulted by a deluge of pollution from intensive agriculture, causing prolonged algal blooms...if the law to prevent nutrient oversaturation had been properly enforced, then we argue that the horrendous pollution of the Wye catchment could have largely been prevented. However, we believe effective lobbying by the National Farmers Union led to DEFRA instructing the Environment Agency to ignore enforcing this critical protection.’ 

The Environment Agency stated that it does not comment on ongoing legal proceedings but “anyone caught breaching environmental laws faces enforcement action, up to and including prosecution”. However, according to the BBC, there have been no Environment Agency prosecutions in the Wye catchment for applying too much fertiliser to fields. 

ENVIRONMENTAL INSIGHT

Strengthening planning policy for brownfield development

The government has recently published a consultation on “Strengthening planning policy for brownfield development” (available here), which intends to facilitate the development on previously developed land. 

Nicola Gooch, partner in our Planning and Environmental Team, discusses this and other consultations in her article “Happy Brownfield Development/ Urban Densification Day .... more consultations and another proposed change to the NPPF”. The full article is available here.

Please contact Nicola Gooch if you would like to discuss any issues relating to brownfield land.