This is a sensible judgment from the Court of Appeal - confirming the lawfulness of Natural England's advice on nutrient neutrality and acknowledging that there could be situations when local authorities can depart from it.  The judgment came in the same week as a major Government announcement on how it proposes to deal with the issue generally and the derailed housing delivery in the 47 affected local authority areas.

There is to be an amendment to the Levelling Up and Regeneration Bill that will place a new statutory duty on water and sewerage companies in England to upgrade wastewater treatment works in nutrient neutrality areas to the highest technically achievable limits by 2030. This is what many of us have advocated should be the priority for action, rather than putting the burden on the planning system. 

Natural England is charged with responsibility to develop a national nutrient mitigation scheme, working with both Defra and DLUHC to pump prime the scheme: this scheme is intended to frontload investment in mitigation projects, including wetland and woodland creation. Full details are intended to be announced in the Autumn of 2022. The scheme will involve a simple payment mechanism whereby developers can purchase ‘nutrient credits’ which will discharge the requirements to provide mitigation.   Small and medium enterprises are to be prioritised in the mitigation scheme – which presumably means companies with less than 500 employees.   Natural England has been told that in devising its scheme it must work with developers and local authorities who are already proposing private mitigation schemes.  

However, many will be disappointed to see that the Government has stated its view that the Habitats Regulations apply to reserved matters applications in affected areas. While this is ultimately a matter for the Courts to determine, it is almost certainly going to deter any planning authorities or planning inspectors from taking the opposite view.  There is currently a legal school of thought that following the UK's departure from the EU, reserved matters applications are not caught by the need for a habitats regulations assessment. Indeed there is soon to be a public inquiry in Somerset West where appellant CG Fry has engaged Charles Banner QC to argue this point in connection with a non-determination appeal (reference APP/W3330/W/22/3296248). Whatever the outcome of that appeal it is likely to require a subsequent High Court challenge to resolve the issue once and for all.  

And a postscript:  if the Levelling Up and Regeneration Bill is setting a 2030 deadline for improving waste water treatment plant it seems highly unlikely that the Habitats Regulations are going to find themselves thrown onto the imminent bonfire of bureaucratic EU laws.