Dear Build Hub Members
As many of you will be in the process of considering plots, preparing planning, or like us waiting for an approval, the enclosed news may be (i am afraid) very bad news if you are living in one of the 74 local planning authorities which received the enclosed guidance from Natural England on 16th March 2022.
The report below provides a lengthy but complete overview of the situation which in short means that if you are planning a new build which increases the amount of nitrate your application will at best be delayed by several months and if approved come with a significant additional tax to mitigate the new nitrates. (in the Solent the average house requires x2 credits costing c£25k)
Whilst i hope not many of the forum members will be impacted those of you who are may find this a valuable source of information and perhaps (cold) comfort that you are not alone in the madness of the UK planning system
----------------------------- England planning news, April 2022 (lichfields.uk) --------------------
Further Natural England advice leads to more housing and leisure decision delays
Natural England advice setting out requirements relating to Habitats Regulation Assessment of protected sites can have the effect of preventing certain planning decisions being made. Protected sites include Special Areas of Conservation, Special Protection Areas and Ramsar sites.
While the issuing of such advice is not new, advice has been issued to 74 local planning authorities at the same time, 42 of which had not received Natural England advice on this matter in the past.
Written Ministerial Statement
This follows a written ministerial statement from the Environment Secretary on 16 March 2022:
"Many of our most internationally important water bodies are designated as protected sites under the Conservation of Habitats and Species Regulations 2017. Under the Habitats Regulations, competent authorities, such as local planning authorities and the Environment Agency, must assess the environmental impact of planning applications or local plans. As a result of these regulations and European case law, Natural England has advised that in areas where protected sites are in ‘unfavourable condition’ due to nutrient pollution, Local Planning Authorities can only approve a project if they are certain it will have no negative effect on the protected site.
"Following further work to understand the sources of site deterioration, Natural England has today issued updated advice and support to the 32 Local Planning Authorities currently affected by nutrient pollution, as well as 42 new LPAs. So far this approach has too often been complex, time-consuming and costly to apply, and government is clear that action is needed to make sure that we both deliver the homes communities need and address pollution at source."
The statement goes on to explain that Natural England has devised “a ‘nutrient calculator’ to enable development to take place in a sustainable way” and that £100,000 grants are available to each affected catchment “to support cross-Local Authority work to meet Natural England requirements and enable development to continue”.
The written ministerial statement concludes by saying that legislation to further strengthen requirements to reduce nutrients at source will be brought into force.
Natural England advice letter
On the same day Natural England issued a 25 page advice letter to the affected authorities. According to a subsequent letter from the Leader of Havant Council to the Levelling Up Secretary and the Housing Minister, the letter was issued with no prior warning.
Tables setting out the affected LPAs are included within Annex C of the letter. Table 1 shows “Existing sites in unfavourable condition due to excessive nutrients which require a Habitats Regulations Assessment (HRA) and where nutrient neutrality is being deployed as mitigation”. It identifies the habitats site and catchment, the LPAs affected within that catchment, the type of nutrient to which the advice applies and provides a summary of the development types affected by the advice. The table also shows whether there is Nutrient Neutrality Methodology and Calculator produced by Natural England or LPA. However, there is a footnote stating “Nutrient neutrality calculators have been provided for all the catchments listed above, even where there is an existing nutrient neutrality calculator”. So even where nutrient neutrality calculators were in place, Natural England has made changes that are likely to make mitigation more difficult. Some of these LPAs have received new advice regarding other catchments too.
Table 2 of Annex C is a list of “Additional habitats sites in unfavourable condition due to excessive nutrients which require a Habitats Regulations Assessment (HRA) and where nutrient neutrality is a potential solution to enable development to proceed”. This table simply identifies the habitats site and catchment and the LPAs affected within that catchment and the type of nutrient to which the advice applies. These are the LPAs that have previously not been issued with advice.
The advice letter affects proposed developments for all types of overnight accommodation including new homes, student accommodation, care homes, tourism attractions and tourist accommodation and permitted development for new overnight accommodation.
Chief Planner letter
A letter from the Chief Planner to the affected LPAs said:
"For planning applications in the affected areas, this means you need to consider the possibility of adverse effects, as a result of additional nutrient loads (including from residential developments); as part of a Habitat Regulations Assessment (HRA).
"In practical terms, this means that before granting any new permissions following the receipt of the Natural England advice, you will need to be confident that the development in question does not require nutrient neutrality to be acceptable under the regulations or that nutrient neutrality is secured, as part of the proposal. […]
"I appreciate that this will have an immediate impact on planning applications and appeals in affected areas. There may be a need to reconsider the acceptability of current proposals, in light of the advice issued. […]
"We recognise that in the newly affected areas, it is unlikely for there to be mitigation solutions in-place or readily available and so the ability for development to be made acceptable will be necessarily limited in the short term. As we have seen in catchments already affected by similar advice, it may take time for applicants to secure mitigation to be able to demonstrate neutrality”.
More than a development industry matter
A Natural England blog, published on 18 March acknowledges:
“The sources of excess nutrients include sewage treatment works, septic tanks, livestock, arable farming and industrial processes. These are long-running issues spanning decades and will be complex to resolve”.
“The best we can do in the short term is to stop the situation getting worse which is why we have developed a neutral approach to nutrients. This isn’t legalistically driven, it’s an environmental imperative that the regulatory safety net has caught. In the long term we need to work in partnership across catchments and sectors to enact Environment Act targets of reducing nutrient pollution in water by reducing phosphorus loading from treated wastewater by 80 per cent by 2037 and reducing nitrogen, phosphorous and sediment from agriculture to the water environment by 40 per cent by 2037”.
Harry Bennett’s Lichfields Planning Matters blog considers the impact of the Natural England nutrient neutrality advice on the requirement for LPAs to demonstrate a five-year housing land supply of deliverable sites, with reference to a recent appeal decision. This is the first in a series of Lichfields blogs on the matter – you can subscribe at the end of any blog page.
For an insightful discussion on the broader and legal implications of the latest Natural England advice we recommend the Clubhouse sessions convened by Simon Ricketts of Town Legal “More Natural England development bans : what to do?” and also Simon’s blogs.
In addition to nutrient neutrality, there are existing requirements to be water neutral in parts of North Sussex within that fall within parts of Crawley, Arun, Chichester and Horsham LPAs. A position statement with an interim approach having been issued by Natural England in September 2021.
Strategic solutions for recreational pressure
And on 14 March 2022, Natural England issued advice to Buckinghamshire Council (Aylesbury Vale and Chiltern Districts), Central Bedfordshire Council, Dacorum Borough Council, St Albans City and District Council, and Hertfordshire County Council. The advice is in respect of concerns about recreational pressure on Ashridge Commons and Woods Site of Special Scientific Interest (SSSI) within the Chilterns Beechwoods Special Area of Conservation (SAC) and says that a strategic solution to that pressure is required.
“Natural England understand that Strategic Solutions can be a time consuming process, and will lead to a period of time where strategic-level mitigation hasn’t yet been identified. During this period we advise that HRAs will be needed, detailing how each individual site is going to avoid adverse impacts on the integrity of the Chilterns Beechwoods SAC. This is for all planning applications that result in a net increase in dwellings, within the entire 500m – 12.6km ZOI”.
The advice also refers to around 20 existing Strategic Solutions nationally and notes:
“The tests of the 2019 Habitats Regulations (EU exit amendment) are a high bar to pass for any individual planning application. In essence each application would need to prove that in itself it wouldn’t harm the SAC either alone or in combination with all other planning applications in the ZOI”.
Natural England Advice for development proposals with the potential to affect water quality resulting in adverse nutrient impacts on habitats sites, uploaded by Cornwall Council, 16 March 2022
Lichfields Planning Matters, Nutrient Neutrality – A housing supply headache
Natural England advice regarding recreational impacts upon Chilterns Beechwoods Special Area of Conservation (SAC) and the need for a Mitigation Strategy, uploaded by Dacorum Council
Natural England’s Position Statement for Applications within the Sussex North Water Supply Zone, September 2021 – Interim Approach, uploaded by Chichester Council
Map of the Sussex North Water Supply Zone, uploaded by Horsham Council