Last month (August 2024), the High Court (in R (Weston Homes Plc) v Secretary of State for Levelling Up, Housing and Communities and another (2024)) confirmed that the Biodiversity Net Gain (BNG) requirements are applied in the same way as (practically) all other legal precedents and legislation: it has no relevance to events occurring before the law in question came into force.
The decision was however an essential one for Weston Homes Plc. Their application for planning permission was refused by the Planning Inspector in December 2023, two months before the ‘entry’ of the BNG rules onto the playing field, in February 2024. The refusal was on the basis that the developer’s predicted BNG units did not meet the future requirement of a minimum 10% BNG. Whilst Weston Homes Plc’s habitat and hedgerow BNG units exceeded 10% BNG quite considerably, the watercourse BNG units were estimated as 2.48%. It was on the watercourse units that the application was rejected. The Planning Inspector therefore applied the BNG rules two months early. In total, Weston Homes Plc were successful on four out of their six grounds.
R (Weston Homes Plc) v Secretary of State for Levelling Up, Housing and Communities and another (2024) confirms that the BNG requirements do not apply retrospectively. Justice Holgate held that planning permission had been refused by the planning inspector on the basis that the BNG legislation had retrospective powers. The inspector had therefore acted contrary to Regulations 2 and 3 of the Environment Act 2021 (Commencement No 8 and Transitional Provisions) Regulations 2024.
Do we see in this case the executive precociously overstepping its precarious position in our rule of law? Or was this simply a government department making rushed, and therefore legally incorrect, decisions? Probably the latter. As Justice Holgate concluded: ‘there is a risk of cases being conducted with more haste and less speed. That could affect the quality of decision-making and give rise to legal challenges which could otherwise have been avoided’ (paragraph 176).
This judgment hopefully clears up confusion for other developers. It also acts as a reminder to the Planning Inspector that the BNG rules are not be a deciding factor in planning applications that were entered before 12 February 2024.
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