The case concerned an application by quarry operator NRS Saredon Aggregates to extract sand and gravel from a site at Broadwaters near Kidderminster. Worcestershire County Council refused permission for the project for nine reasons, including unacceptable impact on the openness of the green belt.
NRS Saredon Aggregates appealed the council’s decision, and a planning inquiry was held in February and March 2023.
The planning inquiry heard that the scheme would deliver more than 39% biodiversity net gain. However, when assessing whether there were very special circumstances outweighing the harm to the openness of the green belt, the inspector gave only moderate weight to the biodiversity benefit on the basis that a proportion of it was required to meet national policy and future legislative requirements. He dismissed the appeal in May.
But in a ruling handed down this week, Mr Justice Eyre agreed with the claimant that BNG legislation was not applicable to the scheme, since the requirements will only apply to applications submitted on or after the date when it comes into force.
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The inspector’s decision to reduce the weight was therefore based on a mistaken view of the law, the judge said.
Jenny Wigley KC, of Landmark Chambers, who represented the claimant NRS Saredon Aggregates, said: “The case is a useful way of reminding decision makers that there is, as yet, no legal requirement for 10% biodiversity net gain.
“The relevant provisions in the Environment Act 2021 have yet to come into force and, when they do in January, the requirement will only apply to new applications submitted on or after that date.”
Existing policy requirements in the National Planning Policy Statement and some local plans are not legal requirements, she added.
“In emphasising benefits of development proposals, it is useful to stress the degree of BNG being offered and, for all applications already in the system, it is worth pointing out that any degree of BNG goes above and beyond legal requirements and should be afforded due weight accordingly,” she added.
The Department for Levelling Up, Housing and Communities did not respond to a request for comment.
NRS Saredon Aggregates Ltd v Secretary of State for Levelling Up, Housing and Communities & Anor is available here.