The Planning Brief | Summer

Infrastructure Consenting – PA 2008

Publication of the National Infrastructure Commissioner (“NIC”) Progress Review 2024

The NIC has published its ‘Infrastructure Progress Review 2024’.  The Review assesses the Government’s progress towards implementing the NIC’s past recommendations and identifies future priorities.  
The NIC’s Review called for a “concerted catch up” Programme following delays caused by Covid and the cost of living crisis in order to accelerate policy implementation and delivery to ensure the UK’s infrastructure is fit for purpose.  Planning is addressed at pages 97 -101 - View the full document here

Key takeaways in relation to planning are:

• alongside public investment, there will need to be a sustained increase in private investment in order to close the infrastructure gap. Key enablers to attract this investment in a competitive market are policy stability, regulation and planning reform.
• a sizeable proportion of the investment needed in economic infrastructure over the coming decades will be consented through NSIPs. This could equate to up to £30 billion of investment per year in the late 2020s and 2030s. 
• the efficiency of the NSIP process has reduced, with consenting times increasing by 65 per cent between 2012 and 2023. Delays increase the costs of infrastructure, which are ultimately passed on to taxpayers for public infrastructure and bill payers for private infrastructure.
• to ensure that National Policy Statements remain up to date and provide an effective steer on the need for infrastructure, the Government should make five-yearly reviews of statements a legal requirement.
• the Government had only partly met the NIC’s assessment of progress.

Commission Chair Sir John Armitt said the next five years would be “a critical period for making decisions on things that are of immediate concern to the public – the three Ps of prices, potholes and pollution”.

Environmental Impact Assessment 

Buying statutory biodiversity credits

Developers are now able to apply for and purchase statutory biodiversity credits via a Government portal |  View the full document here

The purchase of biodiversity credits is only appropriate in circumstances where it is not possible for a developer to achieve the requisite biodiversity net gain of at least 10% (BNG) by on-site and/or off-site measures.  Statutory biodiversity credits differ from off-site biodiversity units sold on the private market and should be purchased only as a last resort in order to acquire the biodiversity units needed to achieve BNG. If developers do buy statutory credits, this should only be in cases where it is not possible to restore habitats on-site or to buy off-site units.

Developers can either buy statutory credits to add to on-site and/or off-site biodiversity units to meet their total BNG, or to fulfil their entire BNG quota if both on and off-site options are not possible.

Developers wanting to buy statutory credits must first make an application via the Government portal to prove why they cannot meet BNG using on-site and off-site options in the first instance.  Initial approval is forecast to take between 4 and 8 weeks depending on whether further investigation is required.  If successful in their application, a developer can send proof of purchase of the credits to the relevant LPA in order to evidence BNG in connection with their development.

C G Fry & Son Ltd v Secretary of State for Levelling Up Housing and Communities and another

Appropriate Assessments under the Habitats Regulations | View the full document here

On 28 June 2024 the Court of Appeal dismissed the appeal on all three grounds. The case centred on the requirements for developments to comply with Natural England’s ‘nutrient neutrality’ advice and not to add nutrient load to designated habitats.

The Court of Appeal confirmed that developers are still required to comply with Natural England’s nutrient neutrality advice for reserved matters applications, even where the advice post-dates the outline planning permission for which no Habitats Regulations Appropriate Assessment was required.

Background:

The appellant was granted outline planning permission for a housing development in several phases. The claimant subsequently obtained reserved matters approval for phase 3 of the development relating to 190 dwellings, subject to conditions.

The appellant sought discharge of the conditions on the phase 3 reserved matters approval however, the local planning authority required an appropriate assessment under the Habitats Regulations before the conditions could be discharged.

An inspector appointed by the Secretary of State for Levelling Up, Housing and Communities, dismissed the appellant's appeal against the failure to discharge conditions. The appellant appealed to the High Court which was rejected and the appellant appealed to the Court of Appeal.

Decision: 

The Court held that the Habitats Regulations could require an appropriate assessment at the stage when the discharge of conditions was being considered.

The obligation imposed by regulation 63 aims to prevent harm to the integrity of a protected site and requires an appropriate assessment to be carried out before the authority decided to give 'any consent, permission or other authorisation' for a plan or project.

Downstream Environmental Impacts | View the the full document here

The Supreme Court held on 20 June 2024 (by a 3:2 majority) that Surrey County Council's (SCC) decision to grant planning permission to a developer was unlawful because the environmental impact assessment (EIA) for the project did not include an assessment of the downstream greenhouse gas emissions.

Background 

The Supreme Court allowed the appeal of the claimant from a decision of the Court of Appeal regarding the Town and Country Planning (Environmental Impact Assessment) Regulations 2017. 

The appeal considered whether the obligation to carry out an environmental impact assessment in relation to a planning application for a development to drill for oil required the local planning authority to assess the impact of greenhouse gas emissions resulting not just from the drilling operation itself but also from the eventual use of the oil as fuel, once it has been refined elsewhere. 

SCC granted permission for the project without assessing or taking into account the emissions that would occur upon combustion of the oil produced. The claimant, a local resident, applied for judicial review of the council’s decision. She argued that the decision was unlawful because the EIA was required to, but had not, included an assessment of the combustion emissions. 

Decision

The High Court and Court of Appeal rejected the claim but the Supreme Court allowed the appeal holding that SCC’s decision to grant planning permission for a project to extract petroleum was unlawful because (i) the EIA for the project had failed to assess the effect on climate of the combustion of the oil to be produced, and (ii) the reasons for disregarding the effect were flawed.

Comment

The case is likely to result in an increase in the number of EIA challenges brought on the basis that downstream effects have not been properly consider and an expansion in the volume and scope of Environmental Statements as a result.

Water

The Manchester Ship Canal Company Ltd v United Utilities Water Ltd [2024] UKSC 22 |  View the full document here

Private owners of water courses are entitled to bring nuisance claims against sewerage undertakers as a result of discharges of foul water

Background

The appeal arises from a longstanding dispute between the Manchester Ship Canal Company (MSCC) and United Utilities Water (UU). MSCC owns the Manchester Ship Canal, while UU is the sewerage undertaker for the North West of England. The issue was whether MSCC could bring a private law claim in nuisance and/or trespass against UU for unauthorised discharges of untreated foul water into the canal. UU argued that such claims were impliedly “ousted” by the Water Industry Act 1991 (WIA 1991), which provides a statutory enforcement mechanism for breaches of duty by sewerage undertakers.  The Supreme court unanimously allowed the appeal, and held that the 1991 Act does not prevent MSCC from bringing a claim in nuisance or trespass, even without an allegation of negligence or deliberate misconduct by UU.

S.94 of the WIA 1991 imposes a general duty on sewerage undertakers to provide public sewers for surface water drainage and to make provision for emptying those sewers. The "foul water provisos", prevent a sewerage undertaker from discharging foul water into any fresh water body such as a canal without the water having been treated to prevent any adverse impact on the purity (S.117(5) and that nothing in the provisions authorises a sewerage undertaker to  "Injuriously to affect … the … quality … of water… in a canal…without the consent of any person entitled by law to prevent, or be relieved against, the injurious affection of…the canal”(S.186(3)

Decision

The Supreme court allowed the appeal of MSCC against the decision of the Court of Appeal, that the UU could not be made responsible in a private law claim in respect of unauthorised discharges of foul water by UU into the canal. That decision upheld the High Court’s decision that the present case was indistinguishable from Marcic v Thames Water Utilities Ltd [2004] 1 All ER 135 (Marcic).  The Marcic case confirmed that failure to enlarge the sewer to deal with population increase, which led to back-flooding, didn’t give rise to an action for common law nuisance, as such liability was contrary to the provisions in the WIA 1991 under which Thames Water operated the sewer. MSCC submitted that Marcic was distinguishable as it did not concern a polluting discharge into a watercourse, and therefore did not address the effect of ss 117(5) and 186(3) of the WIA 1991.
The WIA 1991 contained no express dismissal of all common law causes of action and remedies to protect the enjoyment of the property under S.186(3), nor did the Act oust those rights and remedies. On the contrary, ss 117(5) and (6) and 186(3) and (7) envisaged that the common law rights survived and that a common law remedy remained available to protect those property interests.

Impact 

This judgment potentially has significant implications for water companies discharging foul water into watercourses. Private property owners will need to consider whether they bring claims against sewerage undertakers relating to discharges. Sewerage undertakers will consider anything they can reasonably and practicably do to limit discharges.

Register here to receive future editions of the UK Planning Brief straight to your inbox.