First EDP Consultation Launches & Some Other News

I don’t know about you, but my September seems to have arrived like a run away freight train…

For a month that is usually dominated by party conferences, a lot of actual important stuff seems to be happening. This week is no exception.

It is also a busy one for pretty much everyone at Birketts Towers*, so I am going to keep this blog brief.

So here is a quick run through some important stuff that you probably need to know about…there may be more. It is only Thursday, after all.

First Environmental Delivery Plan Consultation opens – for nutrient pollution in the Norfolk: Broads Special Area of Conservation (SAC) (Yare and Bure), Broadland Ramsar and River Wensum SAC

This morning, Natural England opened the first consultation on an Environmental Delivery Plan in England – which address nutrient pollution (both nitrates and phosphates) that impact the Norfolk Broads SAC, the Broadland Ramsar and the River Wensum SAC.

The consultation runs until 9.29am on Tuesday 27 October 2026. Which is both an early morning and a very specific time to close a consultation. Personally, I am going to pretend it closes on 26th October – for diary purposes – you might want to do the same.

As widely advertised, the consultation covers both the strategic level conversation measures to be carried out through the EDP, and the nature restoration levy rates proposed to fund them.

The proposed NRL rate for this EDP is £2,675 index linked per house or flat within a relevant planning application. The consultation document mentions the possibility of instalments, but does not include a proposed instalment plan within the draft EDP. Instead, the EDP links to the published NRL guidance, which itself simply states that Natural England will publish any available instalment plans (they haven’t yet).

The actual draft instalment plan is tucked away in a supplementary document, which confirms that developers may be able to pay in three equal instalments – instalment one falls due within 30 days of commencement and then two further instalments fall due in 12  month intervals.

Developers who opt to pay into this EDP would also need to accept the imposition of the following condition – which is being proposed as a conservation measure in its own right.

The consultation document is 255 pages long – so there is plenty of detail to get your teeth into – just don’t forget that early morning cut off time for your responses!

The Nature Restoration Levy Regulations 2026 have been made!

Following some colourful debates in parliament, the Nature Restoration Levy Regulations have finally been made.

The regulations came into effect on 11 September 2026, four days before they were published on 15 September, and will therefore be ready and waiting for the first EDP to be formally adopted by the Secretary of State.

The Regulations do not seem to have changed substantively since I last looked at them. They still do not allow for the phasing of liability to match development phases, and they still lock you in pretty darn early in the planning application process.

That said, we do now have:

• The first draft EDP
• guidance on how the NRL is intended to work and how developers can access it; and
• the final made regulations

So everything is starting to become a little clearer. I am, however, still somewhat sceptical about how the whole “we are only sending one invoice for joint and several liabilities” thing is going to work out.

Further Judicial Review Decision on Publication of draft s.106 Agreements

And finally, something completely different.

On 16 December, the High Court handed down its decision in Rodmersham Parish Council, R (On the Application Of) v Swale Borough Council [2026] EWHC 2381 (Admin) .

The case concerns a solar farm permission in Kent. It was challenged on four grounds, all of which failed, but I am only going to talk about one of them: Ground 1 – which related to publication of the draft planning obligation.

This was not a case where the Council had failed to publish the draft s.106 Agreement at all. It was published shortly before the planning committee hearing that resolved to grant the application.

The claimant alleged that this was a breach of Article 40(3) of the DMPO. The court rejected this argument, finding:

“59. I reject the submission by Mr Bell in his skeleton argument that “the operative planning decision was the resolution to grant”. The language of Article 40(3)(b) imposes a requirement of publication on the local planning authority before the application to which the planning obligation attaches is “finally disposed of”. It is axiomatic that a planning application is not “finally disposed of” by a conditional resolution to grant permission. It is not finally disposed of until the permission has been granted. At any point up until then it is permissible for the local planning authority to change its mind and reverse its previous resolution. The House of Lords judgment in R v London Borough of Hammersmith & Fulham, ex p Burkett [2002] 1 WLR 1593 is authority for both of these related propositions. Giving the leading speech in the House of Lords, Lord Steyn said at [32]:

“The resolution of 15 September 1999 gave authority to a designated council official to grant planning permission subject to (i) there being no call in decision by the Secretary of State and (ii) completion of a satisfactory agreement enforceable pursuant to section 106 of the 1990 Act. There were therefore two conditions precedent to a binding planning permission coming into existence. It is common ground that the resolution by itself created no legal rights. Only upon the fulfilment of both conditions precedent, and the grant of planning permission, did rights and obligations as between the local authority, the developer and affected individuals come into existence. Until all these things had happened the resolution was revocable not by the designated official but by the local authority itself”

60. Burkett was cited by Lewis LJ in his judgment in Greenfields, albeit it was relied upon for a different point related to delay. Whilst Lewis LJ did not have to address directly the question of whether a planning application is “finally disposed of” by the passing of a resolution or the later grant of planning permission, in my view it is clearly implicit from what he did say that he accepted it to be the latter. At [70] of his judgement, for example, to which Mr Atkinson referred me in his oral submissions, Lewis LJ concluded:

“… I do consider that the failure by the Council to place a copy of the proposed, or finalised, section 106 agreement on the planning register prior to granting permission did result in the unlawfulness of the decision” (my emphasis)

61. On the express wording of Article 40(3), therefore, I conclude that there has been no breach.”

*not a real place. I was a huge Malory Towers fan as a child, and we have a geographically diverse firm, so consider it a kind of imaginary spiritual home for the firm.