In June 2020, Natural England advised that local planning authorities in the Solent region must ensure new development be ‘nitrate neutral’, so that nearby habitats protected under the Habitats Regulations were not harmed.
In May this year, a case was brought to the High Court in which lawyers for Ronald Wyatt, chairman of Brook Avenue Residents Against Development, a local group campaigning against new development in the Fareham area, argued that Natural England’s advice did not in fact reflect the requirements of the Habitats Regulations. As result, his team argued, Fareham Borough Council’s approval of a planning application to build eight four-to-five bedroom houses on a 1.97-hectare site in Warsash, Hampshire, was unlawful.
Wyatt’s lawyers argued that Natural England's advice did not meet 'the standard of certainty' required by the Habitats Regulations and the Habitats Directive, but the judge, Mr Justice Jay, dismissed this ground for argument as a fundamental misunderstanding of how the precautionary principle works.
He observed in the High Court ruling that: "We are in the realm of the empirical sciences where uncertainty is inevitable. It is in order to meet this unavoidable uncertainty that the precautionary principle has been devised.
"The apex of [Wyatt's case] must be that uncertainty rules out any development in the Solent region, an unattractive submission given the exigencies of the real world."
He went on to conclude: "By requiring the competent authority effectively to rule out, to a very high standard, the possibility of relevant harm, the requirement...of the Habitats Directive is fully satisfied."
However, last week lawyers representing Wyatt announced that the Court of Appeal had granted permission to appeal, “recognising that the case has connotations beyond the local area”.
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The court heard in May that Natural England was preparing wider national nutrient neutrality advice, but that it was waiting to see the terms of the ruling in the High Court before publishing. No national advice has been published since.
Wyatt’s permission to appeal has been granted on four grounds, three of which concerning whether or not the advice note from Natural England adheres to articles 6(2) and 6(3) of the Habitats Directive, and another concerning the lawfulness of the application of section 38(6) Planning and Compulsory Purchase Act 2004.
According to Mr Justice Jay’s original judgement of the case in May, article 6(3) concerns the required standard of certainty to ensure that a protected habitat is not negatively impacted. Article 6(2) requires that “appropriate steps” be taken to avoid the deterioration or disturbance of protected species and habitats.