The High Court has dismissed a claim for judicial review challenging Bristol City Council’s decision to grant planning permission to develop the former Bristol Zoo Gardens site in Clifton, in Save Bristol Gardens Alliance Limited v Bristol City Council [AC-2024-CDF-000142], following the closure of the Zoo in September 2022 and its relocation to the new Bristol Zoo Project in South Gloucestershire.
The grounds of challenge related to whether or not BCC, in considering the Bristol, Clifton and West of England Zoological Society (the Interested Party in the proceedings)'s planning application, had properly assessed (1) biodiversity net gain (“BNG”) calculations; (2) the sustainability credentials of the development, including the planning policy requirements for renewable energy and carbon; and (3) the implications for open space.
BNG: how should "net gain" be calculated?
The case considered the policy background for calculating BNG. Since the initial preparatory work on the planning application had been commenced, through until the application was determined, Natural England (“NE”) had published several revised metrics (Metric 3.0 had been updated by 3.1 and 4.0). The Claimant, relying on representations made by the Bristol Tree Forum, contended that the most up-to-date version of the metric must be used, at least insofar as it related to the assessment of the impact on trees.
Mould J provided a detailed analysis of the differences between the metrics and noted the fact that NE had provided clear guidance on the appropriateness of continuing to use the same version of the metric where work on a project had been commenced under one version, which had then been updated. In allowing the Interested Party to continue using Metric 3.0, the Court found there to be no error of law in the approach taken by BCC as planning authority. The Court also noted that the practicalities of preparing projects for submission often entail considerable lead times. This will sometimes lead to work being undertaken using metrics that are subsequently superseded.
Climate change: how should 20% reduction be calculated?
The second ground of challenge related to whether the scheme included sufficient measures to mitigate the impacts of climate change, having regard to the Bristol Core Strategy policy, which provides that developments are expected to provide sufficient renewable energy generation to reduce CO2 from residual energy use by “at least 20%”. The policy itself was silent on how the 20% should be calculated.
The heart of the dispute was whether the Interested Party was required to use updated carbon factors present in the Building Regulations Part L 2021 (which only took effect in 2022) (“L2021”) rather than the Building Regulations Part L 2013 (“L2013”) which were in force at the time of the planning application.
BCC, consistent with their own guidance, had continued to use the L2013 methodology. This was summarised in the planning officer’s report, notwithstanding objections from the Claimant’s expert. The Court was content that the Interested Party had prepared the planning application for submission in accordance with the relevant policies and BCC's practice note, and had used L2013 which was current at the time the application was prepared and submitted. This had estimated a reduction in CO2 of greater than 20%, in compliance with the policy.
L2021 had come into force two days after the application was validated, and BCC's practice note even when subsequently updated in January 2023 allowed for applications that were already in the planning process to continue using L2013. Therefore, the Court concluded that it was acceptable for BCC and the Interested Party to continue using L2013. This was ultimately a matter of discretion and planning judgment, and there was no requirement to rely upon the L2021 carbon factors.
Public open space
The third ground of challenge related to the application of paragraph 99(b) of the National Planning Policy Framework ("NPPF") then in effect (paragraph 104 of the current edition of the NPPF), to the assessment of the planning application in terms of open space. BCC has a policy to protect Important Open Spaces. The Planning Officer scrutinised the proposal and considered there was a "marked qualitative enhancement in the nature of the open space provision" through enhancements to the physical features, the historic landscape, and the opening up of the site to the public for free.
Paragraph 99(b), requires any loss of open space resulting from a proposed development to be replaced by "equivalent or better provision in terms of quantity and quality". The judgment affirms the overall principle in R(Brommell) v Reading Borough Council [2018] EWHC 3529 (Admin) that it was not a prerequisite to the proper application of paragraph 99(b) for the planning officer to make precise findings as to the amount of existing open space lost to the development and the amount of open space provided by way of replacement on a like for like basis. His planning judgment was that there would be a marked improvement overall, over the existing position. There was no unlawfulness as a consequence.
This judgment provides a pragmatic approach to both BNG and carbon policies, in the absence of mandated formulae for calculating the gains. It also reaffirms previous High Court authority on the flexibility in the overall judgment undertaken in relation to open space provision under the NPPF.
DAC Beachcroft LLP acted for Bristol, Clifton and West of England Zoological Society, the successful Interested Party, instructing Peter Goatley KC and Sioned Davies of No.5 Chambers.
