South Glos

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Court of Appeal agrees to hear nitrate neutrality case

The Court of Appeal has given permission for an expedited appeal in the case concerning the impact of nitrates on new housing development in the Solent area.

Nitrates can run into surrounding waters from homes and form nutrients causing excessive growth of algae.

Advice from Natural England on this has disrupted planning decisions for new homes in the region.

Francis Taylor Building said the challenge to the judgment of Mr Justice Jay in R (Wyatt) v Fareham Borough Council [2021] EWHC 1434 (Admin) [2021] EWHC 1434 (Admin) concerned the lawfulness of the advice from Natural England on avoiding nutrients in the area.

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The chambers said permission to appeal was granted on three grounds that raised questions about whether the advice note complied with Articles 6(2) and 6(3) of the Habitats Directive.

A fourth ground concerned the lawfulness of the section 38(6) exercise undertaken by the case officer.

Disputes over nitrates began in 2019 when Natural England said that a ruling in the Netherlands on interpretation of the Habitats Directive meant it had to take a more cautious approach than before when advising on assessments under the directive for residential development.

This was because it was difficult to permit additional nitrates into an already failing system.

Some nitrates arise from agriculture but others come from residential waste and this can affect whether councils can grant planning permission for homes in affected areas.

Fareham Borough Council adopted an approach for ensuring any new housing was ‘nitrogen neutral’ and would not harm the Solent. 

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