Planning applications for qualifying developments have been required to deliver 10% biodiversity net gain for more than a year as part of a drive to deliver more sustainable communities.
But a recent High Court case has sought to challenge a grey area in the law that left the cut-off date for this change unclear. Thrings’ Planning and Environment Associate Rebecca Stanton takes a look at the case of Morris Homes v Westchurch Homes EWHC 657 and what it means for developers.
What was the issue?
As part of a dispute with Bolton Council over compliance with the BNG requirement on one of their sites, developer Morris Homes sought a judicial review of the local planning authority’s (LPA) perceived failure to impose the condition on the permission granted to Westchurch Homes for a 133-home site in the city.
Their argument was that the permission was unlawful because, despite the application having been submitted, and the application fee paid, in January 2024 – before the 12 February 2024 cut-off date when the BNG requirements came into force – it was deemed invalid and was only validated on 18 April that year, before being granted permission in October 2024.
What does the law say?
The requirement to deliver 10% BNG is outlined in regulation 3 of the Environment Act 2021 (Commencement No.8 and Transitional Provisions) Regulations 2024, which then states:
“The [obligation to impose the biodiversity gain planning condition] does not apply in relation to a planning permission…where the application for planning permission was made before 12 February 2024.”
What happened in the High Court?
Whilst seemingly straightforward that the cut-off date before the new regulations came into force was 12 February 2024, the issue centred around the ambiguity of the word “made”. The key question in this case was therefore when the application was made, meaning crucially whether Statutory BNG applied.
Morris Homes’ argument was that the legislation set “a hard deadline in that it marks a point in time when the validity of the application is to be determined” and that if by that date there was no valid application then no application had been made.
Bolton Council, meanwhile, contested that “the making of an application and the process of validation are different, and separate, steps”, positing that if an application is not valid when made, "the effect is merely that, as in this instance, the applicant is given time to supplement it with further supporting documents to enable its validation. In such circumstances the application remains the same application already made."
In handing down its judgment, the High Court held that it was clear that the answer to the question "when is an application made" was wholly dependent on context and in particular on the construction of the relevant regulatory or statutory provision in respect of which the question arose.
In doing so, HJJ Bird turned down Morris Homes’ original application for permission to proceed to judicial review, coming down in favour of the LPA, that when an application is made valid, it is treated as being made from the date it was received – for the purpose of the transitional provisions for Statutory BNG in any event.
What does this mean?
For developers with planning applications submitted around the February 2024 deadline, this decision provides a great deal of clarity on the rigidity of that date for BNG purposes and will help to settle any similar disputes currently on uncertain ground.
That said, the judgement is nuanced and crucially points out that determining when an application is made is facts-specific, meaning there is no single legislative rule for all applications. It is crucial that developers take legal advice on the applicable rules and their consequences, and grasp that the judgement is specific to the applicability of BNG regulations.
Interestingly, the judge also pointed out that any application, “no matter how flawed”, is capable of being saved by the later provision of correct documentation and would then become valid.
Thrings’ Planning and Environment lawyers have extensive experience in navigating complex local and national planning policy legislation and has successfully supported commercial and residential clients to optimise the use of their land to generate innovative new long-term revenue streams through a range of diversification initiatives To find out more and for advice on your development proposals, please get in touch.
