Category: Water

The Brookgate Cambridge Decision Versus Water Scarcity

I fibbed on LinkedIn last weekend when I said that the reason for no simonicity post was a lack of news. To be honest, it was more about a lack of time – actually having a weekend off to be rained on in the west country.

Over to the east of England, Cambridge to be specific, there was certainly some news that needs unpacking. This rainy bank holiday I do now have time. And inevitably it’s on the issue of water scarcity – which I touched on in my 16 March 2024 blog post Water Water Everywhere, Nor Any Drop To Drink.

The Secretary of State’s decision letter dated 23 April 2024, allowing a recovered appeal by Brookgate Land Limited against South Cambridgeshire District Council’s failure to determine a planning application for a large mixed-use development, including up to 425 homes, at land north of Cambridge North Station is worth reading for anyone either:

  • grappling with the implications of the Environment Agency’s advice in relation to a planning application, whether in relation to water scarcity issues or other matters on which it expresses views as a statutory consultee; or
  • frustrated by how the planning process can be elongated at a late stage by issues raised in relation to matters supposedly to be addressed by way of separate statutory regimes.

Brookgate’s application for planning permission had been submitted on 14 June 2022 (not 2023 as recorded in the inspector’s report). The appeal was submitted in January 2023. At that point the Environment Agency’s comments on the application, by letter dated 7 November 2022, were some way short of a formal objection:

“Evidence in the emerging Integrated Water Management Study for the Greater Cambridge Local Plan indicates that groundwater abstraction to meet current needs is already causing ecological damage to Water Framework Directive (WFD) designated waterbodies (including chalk streams) or there is a risk of causing deterioration in the ecology if groundwater abstraction increases. The area also hosts several chalk streams which are internationally recognised habitats, sensitive to the availability of groundwater baseflow and vulnerable to low flows. This development has the potential to increase abstraction from groundwater sources. You should consider whether the water resource needs of the proposed development alone, and in-combination with other proposed development that the relevant water company is being asked to supply, can be supplied sustainably without adverse impact to WFD waterbodies and chalk streams. At the present time we are unable to advise with confidence that further development will not harm the water environment, until it can be shown sustainable water supplies can be provided.

The Local Planning Authority must have regard to River Basin Management Plans and be satisfied that adequate water supply exists to serve development, in accordance with the policies of the Local Plan.

Should the development be permitted, we would expect you to ensure that the new buildings meet the highest levels of water efficiency standards, as per the policies in the adopted Local Plan.

Your authority should ensure that the local Water Recycling Centre has sufficient capacity to accept foul drainage from the proposed development to ensure protection of the water environment including WFD waterbodies.”

The appeal was recovered by the Secretary of State for his own determination on 24 March 2023 for the following reason: “the appeal involved proposals for residential development of over 150 units or on a site of over 5 hectares, which would significantly impact on the Government’s objective to secure a better balance between housing demand and supply, as well as create high quality, sustainable, mixed and inclusive communities.”  (nothing stated about water scarcity).

The inquiry opened on 6 June 2023 and sat for 12 days. It was adjourned on 23 June 2023 to allow for further work to be completed on water scarcity, received and then commented on by the parties. On 8 March 2024 the parties were then given an opportunity to comment on the joint statement on addressing water scarcity in Greater Cambridge that I had mentioned in my 16 March 2024 blog post.

It was agreed between the Environment Agency and the appellant before the inquiry that “the standard of mitigation measures required for this application is a matter for the decision-maker” (paragraph 5.57 of the inspector’s report).

South Cambridgeshire District Council invited the Secretary of State to consider “whether it would be appropriate, alongside the water efficiency measures to be secured through final draft planning conditions to:

1. Manage the additional demand on water resources arising from the development proposals, by delaying the occupation of development until 2032.

2. Link the development to the delivery and operation of the specific strategic water supply intervention measures necessary to deliver water supplies to the region, as identified in an approved Regional [Water Resources Management Plan] and/or {Cambridge Water’s Water Resources Management Plan].” (paragraph 7.120 of the inspector’s report).

The appellant considered that such a condition was not necessary. The inspector agreed but, in the event that the Secretary of State disagreed, proposed an “optional” condition for the Secretary of State to consider. The inspector’s conclusions on the water scarcity issue are at paragraphs 14.139 to 176 and need to be read in full if this issue is directly relevant to you. However I note:

  • The inspector considered that limited weight could be placed on the modelling evidence submitted to the inquiry and he concluded that “the evidence specifically submitted for consideration to the Inquiry does not demonstrate that abstraction is contributing to ecological deterioration” (paragraph 14.157)
  • “Notwithstanding this, it is evident that there is a water supply issue within the Greater Cambridge Area. The Council draws attention to planning applications for over 9,000 homes and 11,000 jobs that are unable to be determined. It also advises that additional development at the Cambridge Biomedical Campus and Life Sciences Campuses risk being put on hold, together with work on the new Joint Local Plan which cannot confidently progress to its next stage.  The Council has also written to Ministers seeking a solution to the issue. It is probable that there are similar issues in other Local Planning Authorities across the [Cambridge Water] area.” [paragraph 14.158]
  • “There is a balance to be struck between the levels of growth proposed and measures to manage the supply and demand for water resources, as well as a need for mitigation measures.  This can be managed by reducing demand and/or increasing supply. The balance and any mitigation measures are a strategic matter for the WRMP, as confirmed by NPPF paragraph 20(b), and is not a matter for this appeal. The preferred approach may have significant consequences for Greater Cambridge and the Government’s vision for this area.” [paragraph 14.163]
  • “Water resources should ordinarily be a strategic matter and not considered as part of a planning application. In this instance, the development plan was adopted in 2018, and it would seem that the concerns in relation to water quality were not known at that date.  Indeed, even the EA’s initial response to the appeal proposal did not identify this as an issue. The Council is of the view that the issue of water stress has been appropriately considered by applying Policies CC/4 and CC/7 relating to water efficiency and water quality issues. This is on the basis of an appropriate package of mitigation being secured through agreed planning conditions.”  [paragraph 14.166]
  • “It is a matter for the Secretary of State to determine whether the water supply and quality issues within Cambridge are so pressing that their resolution cannot be managed by the usual statutory process and any initiatives emerging from the Water Scarcity Working Group. He will need to consider whether the statutory process and other measures in place in respect of water supply are sufficiently robust to ensure that the proposal, together with other development, would avoid placing an unacceptable demand on water resources and potentially harm ecological interests.

…Should the Secretary of State conclude that water demand would have unacceptable consequences for water supply and quality he may wish to consider imposing an additional condition that would delay the occupation of the development until the WRMP is approved or the Grafham Transfer is operational.

The benefit of imposing such a condition must be balanced against the delay in delivering the benefits of the proposal, particularly the economic benefits, and the delivery of housing. In my view such an approach would have the potential to stall development within the Greater Cambridge area as a whole, perhaps over a prolonged and unknown period of time, since the entire area is served by CW. This uncertainty could also have implications for the future growth of Greater Cambridge, including at locations such as Cambridge University and the Cambridge Biomedical Campus which is a world-renowned centre of excellence and research for Life Sciences.”  [paragraphs 14.173 to 14.175]

The “optional” condition set out by the inspector was as follows:

“The dwellings and commercial accommodation hereby permitted shall not be occupied until either the Grafham Transfer is operational, or the Water Resources Management Plan for the Cambridge Water operating area covering the period 2025 to 2050 is published following approval by the Secretary of State and any intervention measures necessary to maintain and deliver water in advance of the Grafham Transfer have been implemented.”

The inspector delivered her report to the Secretary of State on 25 January 2024. Following the further representations on the March 2024 announcement the Secretary of State concluded in relation to water scarcity as follows in his decision letter, allowing Brookgate’s appeal:

“33. The Secretary of State has carefully considered the effects of the proposal upon water supply. The Secretary of State has noted the Inspector’s judgement at IR14.169 that while water quality and supply is a material consideration, the proposal would not in itself harm water quality or water resources, but that cumulative impacts of the appeal proposal with other development would add to demand for water.

34. The Inspector acknowledges in this context that a sustainable supply of water for the Cambridge Water area may not be available for several years (until after the Grafham Transfer is operational). The Inspector leaves for the Secretary of State the decision as to whether the statutory process and other measures in place in respect of water supply are sufficiently robust to ensure that the proposal, together with other development, would avoid placing an unacceptable demand on water resources and potentially harm ecological interests (IR14.173).

35. The Inspector proposed an optional condition be placed on an approval which would delay the occupation of development until either the Grafham Transfer Water supply option is operational or the Water Resources Management Plan (WRMP) for the Cambridge Water operating area is approved (IR14.174).

36. Since the conclusion of the Inquiry and the recommendation made by the Inspector, the March 2024 Joint Statement on addressing water scarcity in Cambridge has been published by the Department for Levelling Up, Housing and Communities (DLUHC), Department for Environment Food and Rural Affairs (Defra), the Environment Agency and Greater Cambridge Shared Planning Service (which manages the planning service for Cambridge City Council and South Cambs District Council). This statement announces the development of a water credits market to supplement and potentially accelerate delivery of the water management measures to meet all of the areas future water needs being promoted by Cambridge Water through its WRMP, alongside wider communications to reduce water use in the area. Paragraph 9 of the Joint Statement states that modelling demonstrates that the scheme should deliver water savings that are sufficient to address concerns raised around sustainable water supply to the Cambridge area.

37. In the context of the publication of the Joint Statement, the Secretary of State considers that the proposal accords with Policies CC/4 and CC/7, and with national policy on water use and supply, and would not have an unacceptable consequence on water supply and quality. As a result, the Secretary of State considers the proposed optional condition is not necessary, and considers that matters relating to water supply and quality are neutral in the planning balance.”

Of course, this does not ease the pressure that there has to be on the Government, Cambridge Water and relevant agencies to ensure that there is indeed adequate water supply for the development when the taps eventually need to be turned on, but it is a welcome signal from the Secretary of State that strategic issues of this nature, for which there are whole statutory regimes set up supposedly to ensure that the necessary infrastructure is in place to accommodate the needs arising from planned development, are not necessarily a matter to derail the planning applications process. Goodness knows, we can think of so many issues at the moment which are doing just that – it’s the most constant theme of this blog!

Simon Ricketts, 4 May 2024

Personal views, et cetera

Water Water Everywhere, Nor Any Drop To Drink

“Day after day, day after day,

We stuck, nor breath nor motion;

As idle as a painted ship

Upon a painted ocean.”

(from The Rime of the Ancient Mariner, by Samuel Taylor Coleridge, 1834)

But that’s all I’m going to say about MIPIM. This post is just a toe dip into (1) flood risk and (2) water scarcity.

Water Water Everywhere

Government policy on planning and flood risk is set out in paragraphs 165 to 175 of the current December 2023 version of the NPPF, supplemented by Government’s Planning Practice Guidance on flood risk and coastal change. The Environment Agency is the Government’s statutory planning consultee on flood risk issues.

The proper interpretation of the Government’s policy on flood risk, and in particular on the risk-based sequential approach to locating development which is at the heart of it, was considered in two recent cases. In relation to each of them I am simply going to point to the relevant Town Library summary (to subscribe for free to our weekly case law and other summaries click here ).

R (Substation Action Save East Suffolk Limited) v Secretary of State for Energy Security and Net Zero (Court of Appeal, 17 January 2024)

My colleague Jack Curnow summarised this case here. This was a legal challenge to two development consent orders for the construction of the East Anglia ONE North and East Anglia TWO Offshore Wind Farms together with associated onshore and offshore development. The environmental statement for the project dealt with flooding from surface water stated that the onshore substations and National Grid Infrastructure were located in areas primarily at low risk of surface water flooding, with some permanent infrastructure (parts of access roads) likely to cross areas at both high risk and medium risk of surface water flooding, with appropriate mitigation measures within the design to address any remaining surface water flood risk concerns. The court held that the sequential approach does not apply to the risk of flooding from surface water, as opposed to the risk of fluvial flooding. Whilst the risk of flooding from surface water is to be taken into account when deciding whether to grant development consent, that is a matter of planning judgment for the decision maker.

Mead Realisations Limited v Secretary of State (Holgate J, 12 February 2024)

My colleague Chatura Saravanan summarised this case here. This case dealt with two challenges to inspectors’ decision letters:

a) a decision to dismiss the appeal by Mead Realisations Limited against the refusal by North Somerset Council for a residential development of up to 75 dwellings; and

b) a decision to dismiss the appeal by Redrow Homes Limited against the refusal by Hertsmere Borough Council for a residential development of up to 310 units and other facilities.

The claims were heard together as they raised the common central issue of what is the correct interpretation and application of the flood risk sequential test. Specifically, Mead and Redrow argued that the Inspectors misinterpreted paragraph 162 (now 168) of the NPPF in identifying what might be “reasonably available” sites under the sequential approach, in that they applied the guidance in paragraph 028 of the PPG, which conflicted with paragraph 162 of the NPPF. This raised the question of whether the PPG did indeed conflict with the NPPF and, if so, whether the NPPF should supersede the PPG.

Holgate J held that there was no rule that the PPG could not be inconsistent with the NPPF:

“As a matter of policy, PPG is intended to support the NPPF. Ordinarily, therefore, it is to be expected that the interpretation and application of PPG will be compatible with the NPPF. However, I see no legal justification for the suggestion that the Secretary of State cannot adopt PPG which amends, or is inconsistent with, the NPPF”.

However he held that in any event there was no conflict in any event:

“The PPG performs the legitimate role of elucidating the open-textured policy in the NPPF. The PPG describes “reasonably available sites” as sites “in a suitable location for the type of development with a reasonable prospect that the site is available to be developed at the point in time envisaged for the development.” The PPG provides for issues as to suitability of location, development type, and temporal availability to be assessed by the decision-maker as a matter of judgment in accordance with the principles set out above. In this context, the PPG correctly states that “lower-risk sites” do not need to be owned by the applicant to be considered “reasonably available.” That is consistent with the need for flexibility on all sides.”

For a number of more detailed arguments raised by the claimants (and all rejected), it’s worth reading the case itself or Chatura’s summary.

Nor Any Drop To Drink

Water scarcity is becoming one of those worrying “neutrality” issues which can cut across the more familiar uncertainties of the planning system – see the ongoing issues in Sussex referred to in my 9 October 2021 blog post Development Embargos: Nitrate, Phosphate & Now Water .

Another area where water scarcity concerns have been raised is of course Cambridge (where Samuel Taylor Coleridge was an undergraduate at Jesus College between 1791 and 1794 – these blog posts aren’t just thrown together). The Secretary of State’s 24 July 2023 long-term plan for housing committed to “transformational change” in Cambridge:

“Proposals will see Cambridge supercharged as Europe’s science capital, addressing constraints that have left the city with some of the most expensive property markets outside London, and companies fighting over extremely limited lab space and commercial property with prices that rival London, Paris and Amsterdam.

These ambitious plans to support Cambridge include a vision for a new quarter of well-designed, sustainable and beautiful neighbourhoods for people to live in, work and study. A quarter with space for cutting-edge laboratories, commercial developments fully adapted to climate change and that is green, with life science facilities encircled by country parkland and woodland accessible to all who live in Cambridge.

Any development of this scale will have substantial infrastructure requirements. The government will deliver as much of the infrastructure and affordable housing as possible using land value capture – with the local area benefiting from the significant increase in land values that can occur when agricultural land is permitted for residential and commercial development. Land values will reflect the substantial contributions required to unlock the development (see annex).

A Cambridge Delivery Group, chaired by Peter Freeman and backed by £5 million, will be established to begin driving forward this project. The Group will work to turn this vision into a reality, taking a lead on identifying the housing, infrastructure, services and green space required. It will also consider options for an appropriate delivery mechanism that will be needed to lead the long-term work on planning, land acquisition and engagement with developers, starting in this Parliament but running through the next few years as development takes shape.”

The Delivery Group was to “take forward immediate action to address barriers such as water scarcity across the city, including:

  • Convening a Water Scarcity Working Group with the Environment Agency, Ofwat, central and local government and innovators across industries to identify and accelerate plans to address water constraints. The Group will include all relevant partners to understand what it would take to accelerate building the proposed new Fens Reservoir and enabling Cambridge to reach its economic potential.
  • Supporting the council in efforts to make sure new developments proposed as part of the local plan can be as sustainable as possible, including whether new houses in planned developments such as Waterbeach and Hartree can be made more water efficient. To support this, the government is announcing today a £3 million funding pot to help support measures to improve the water efficiency of existing homes and commercial property across Cambridge, to help offset demands created by new developments in the local plan.
  • The government will also take definitive action to unblock development where it has stalled, providing £500,000 of funding to assist with planning capacity. Cambridge City Council, Anglian Water, Land Securities PLC and Homes England will work together to accelerate the relocation of water treatment works in Northeast Cambridge (subject to planning permission), unlocking an entire new City quarter – delivering approaching 6,000 sustainable well-designed homes in thriving neighbourhoods – as well as schools, parks and over 1 million square feet of much needed commercial life science research space.”

On 6 March 2024 DLUHC published The case for Cambridge :

“Our first priority is water scarcity, which is holding back development and risks causing environmental harm. It is vital that the city has the water supply it needs to support long-term growth, including a new reservoir in the Fens and a new pipeline to transfer water from nearby Grafham Water. We are also making a one-off intervention to support growth in the shorter-term by delivering water savings through improved water efficiency of appliances in existing buildings that can offset new homes and commercial space.

The government will:

  • Deliver a unique offsetting intervention to save water now through improving efficiency and support sustainable growth – set out in detail in a paper published alongside this document.
  • Issue a joint statement from the Environment Agency, Greater Cambridge Shared Planning, DLUHC and Defra, outlining our commitment to sustainable growth and development on the basis of our water credits scheme.
  • Appoint Dr Paul Leinster to chair the Water Scarcity Group to advise the government on future water resource options, including the reservoir in the Fens and the Grafham Water pipeline.”

Alongside the case for Cambridge document, a joint statement between DLUHC, Defra, the Environment Agency and Greater Cambridge councils (Cambridge City and South Cambridgeshire districts) on measures to address water scarcity issues in the area was published on the same day, setting out its proposed scheme to develop, and help to fund, a water credits market “intended to provide greater certainty through:

a. The delivery of water savings measures in the Cambridge Water operating area, supported by the government’s spending.

b. A robust water credit system being in place to assure those water savings and issue credit certificates to developers and housebuilders.

c. Application of enforceable planning mechanisms so that planning permissions are linked to water savings measures in a robust way.”

The focus is of course welcome but water scarcity is increasingly going to be a challenge facing us in many parts of the country– see for instance this 4 September 2023 FT article The UK is at risk of running low on water. Why?   (although the answer to the question in the heading to the article may lie in its sub-heading: “A country famous for its rainy climate faces grave supply issues, after years of poorly managed systems”…)

NB Did you know that 15 out of the 22 albatross species remain threatened with extinction? How stupid are we as a species – and how ignorant of the message of that poem?

Simon Ricketts, 16 March 2024

Personal views, et cetera

The Storrington Appeal Decision: A Small Neutrality Breakthrough?

A Side: Bridge Over Troubled Water

Thank you, Heather Sargent, for sharing this appeal win on LinkedIn. This is what I turn to LinkedIn for, rather than for posts about legal directory rankings!

This decision letter dated 6 October 2023 is a must-read for anyone grappling with Conservation of Habitats Regulations issues in relation to nutrient/water neutrality or recreational impact issues.

In summary, the Inspector, Michael Hayden was faced with two identical appeals against the refusal of planning permission relating to proposed residential development  (up to 78 homes). The site straddles the South Downs National Park Authority and Horsham District Council areas.

There were various issues to be determined by the inspector but I just want to focus on one:

“the effect of the proposed development on the integrity of the Arun Valley Special Area of Conservation, Special Protection Area and Ramsar sites, with particular reference to water abstraction, taking account of the proposed water neutrality measures.”

I first covered the north Sussex water neutrality issue in my 19 October 2021 blog post Development Embargos: Nitrate, Phosphate & Now Water. This is equivalent to the nutrients issue which of course has recently been so much in the news – and where we await a fresh Bill to re-present the legislative fix rejected by the House of Lords in its report stage debate on the Levelling up and Regeneration Bill (see eg my 16 September 2023 blog post NN No).

One of the frustrations surrounding the neutrality veto has been with the approach of Natural England and local planning authorities, which have been disinclined to accept that, given that any adverse effect on the integrity of the relevant SAC or SPA only occurs when the homes are occupied, in appropriate circumstances planning permission can still lawfully be granted, and reserved matters applications and pre-commencement condition discharge applications approved, with a Grampian condition preventing occupation until a satisfactory solution is in place to ensure no adverse effect. Whilst it is said that this just kicks the can down the road – who will build if there is no certainty as to occupation? – in some circumstances it can assist, where for instance there will in any event be a long development lead time and the developer is prepared to take the risk that in due course a strategic solution will have been arrived at and implemented – and is prepared to contribute to the costs of that solution and generally seek to ensure that it is achieved.

So what is so interesting about the Storrington decision letter is that the appellant took this issue head-on. And the inspector accepted its approach. See paragraphs 67 to 109 of the decision letter. If your work involves neutrality issues, it’s worth reading them in their entirety.

The appellant’s position was that its scheme incorporated various measures to reduce the increased demand for mains water from the proposed development:

“76. In order to achieve water neutrality, the appellant proposes to mitigate the increased demand for mains water from the proposed development through a combination of on-site water reduction measures and an off-site offsetting scheme. In terms of on-site measures, it is proposed to install water efficient fixings, and greywater recycling and rainwater harvesting systems into each dwelling. It is common ground that these measures would reduce potable water consumption from the residential development to 8,129.07 litres per day, subject to suitable management and maintenance to ensure they are effective.

77. The signed and executed UU contains obligations requiring an On-Site Water Neutrality Scheme to be submitted to, and approved by, the LPAs and implemented prior to first occupation, which would include a regime for the management and maintenance of greywater recycling and rainwater harvesting systems by a management company. I am satisfied this would provide a legally binding mechanism for the LPAs to ensure the long term effectiveness of the measures to reduce potable water use to the required level within the proposed residential development. This position was confirmed by the Council’s witness in oral evidence at the Inquiry.”

Over and above these measures:

“79. The appellant seeks to rely on one of two alternative means of offsetting the residual water demand of the proposed development:

• payment of a fee or tariff into an LPA-led offsetting scheme for the Sussex North WRZ as a financial contribution towards an equivalent reduction in mains water demand elsewhere in the WRZ (the strategic offsetting scheme); or

• installation of a rainwater harvesting scheme at a garden centre in Horsham that would deliver an equivalent reduction in mains water use (the site specific offsetting scheme).

80. The strategic offsetting scheme is not yet in place, but how it would operate is explained in the Mitigation Strategy prepared for the Sussex North WRZ45. The first element of the Strategy is a programme being implemented by Southern Water to reduce water demand across the network by reducing leakages and household water consumption. This is expected to mitigate a large part of the increase in demand from committed and planned housing growth in the WRZ in the period 2021-2039.

81. The balance of the increased water demand is proposed to be mitigated through an LPA-led offsetting scheme, comprising a series of measures to reduce water demand in social housing and property under LPA control, which would be funded by a tariff on all new development per litre of mains water required to be offset. The most significant measure would be a programme for retrofitting flow regulators into existing social housing stock within the WRZ managed by local authorities or registered social landlords (RSLs), the effectiveness of which has already been demonstrated in trials.”

“83. On the question of prioritisation, the Mitigation Strategy recommends that priority should be given to sites allocated in local plans or identified in the associated housing trajectories, such as through the allowance for windfall, albeit not strategic-scale windfall49. In this case, around two-thirds of the proposed residential part of the appeal site is allocated for housing in the SSWNP. The housing proposed on the part of the site allocated for allotments would count as windfall provision, not at a strategic scale, for which an allowance is included in the housing trajectory for Horsham district from 2024/25 onwards50. If allowed therefore, the appeal site should be a candidate for priority of access to water neutrality via a payment to the offsetting scheme, given that it forms part of the planned and projected housing growth in Horsham district.

84. I recognise that the governing body for the strategic offsetting scheme is likely to have choices to make in terms of an order of priority for permissions to access the scheme, particularly early on in its operation. However, if the appeal proposals were allowed, the appellant confirmed that they would not need to rely on the strategic offsetting scheme for a period of 18 months from the grant of planning permission, whilst reserve matters were dealt with, the allotments relocated and site infrastructure laid. By that time (early 2025), the LPA-led offsetting scheme would have been operating for around 12 months and offsetting capacity from the SW programme is likely to be available to contribute to water neutrality in planned housing schemes. Furthermore, under the suggested standard time limit condition, the appellant would have up to 5 years from the grant of planning permission for the outline residential component of the proposed development to be implemented. By then (mid-2028), the strategic scheme would have been operating for over 4 years, with further offsetting capacity added to the scheme by both the LPA-led and Southern Water programmes.

85. Therefore, there is firm evidence that the proposed development would be able to access offsetting capacity within the strategic scheme to mitigate its residual water demand. However, case law establishes that in order for a competent authority to reach a conclusion under Regulation 63 of the Habitats Regulations that a project will not adversely affect the integrity of the European site, there must be no reasonable scientific doubt. In order to provide the necessary degree of certainty, the appellant has proposed a ‘Grampian’ condition and an obligation in the S106 UU, the effect of which would be to prevent implementation of the proposed development until a payment is made to HDC under the strategic offsetting scheme and water neutrality secured.”

The inspector noted that the threshold for imposition of a Grampian condition is simply that it would not be the case that there are “no prospects at all” of the action in question being performed within the time-limit imposed by the condition. “The Council’s evidence is that there is a very slim, 5%53 prospect of the appeal proposal being able to offset its water demand through the strategic scheme during the lifetime of any permission. A slim prospect does not amount to no prospect at all. Therefore, the condition would be reasonable in terms of the likelihood of access to the strategic offsetting scheme.”

The council was worried about the precedent effect but the inspector considered that each application needs to be determined on its own merits.  “In this case, I have established above that a large part of the residential component of the appeal site is included in the planned housing growth in Horsham District, and the remainder would contribute to the windfall allowance in the housing trajectory, both of which the Mitigation Strategy recommends should be priorities for the strategic offsetting scheme. Accordingly, the condition would not be unreasonable on this count either.”

He considered that the measures set out in the section 106 unilateral undertaking would be workable in practice and met the requirements of Regulation 122 and of section 106 itself.

But what about Natural England’s objection?

“93. NE’s position with regard to the strategic offsetting scheme remains that whilst the mitigation strategy is evolving, decisions on planning applications should await its completion or demonstrate water neutrality by other means. Whilst the advice of NE as the expert national agency on this matter carries significant weight, case law establishes that, as the competent authority, I may lawfully depart from this advice, provided I have cogent reasons for doing so.”

After analysis he considered that he did.

The appeal was allowed. The relevant planning condition reads as follows:

“16. No development shall commence that results in an increased use of potable water when compared with the existing baseline water usage at the site until either:

(1) Water neutrality mitigation has been secured via the Council’s adopted Offsetting Scheme (in line with the recommendations of the Sussex North Water Neutrality Study: Part C – Mitigation Strategy, Final Report, December 2022) as set out in the Planning Obligation that accompanies this planning permission and this has been confirmed in writing by the Local Planning Authority; or

(2) The site specific Water Neutrality Mitigation Scheme set out in the Planning Obligation that accompanies this planning permission has been implemented in accordance with the requirements set out in the Planning Obligation and the Local Planning Authority has given its written confirmation of the same.”

Horsham District Council had applied for costs, partly on the basis that “the Appellant did not submit their full case on water neutrality with the appeals, delayed the provision of key information on their revised water neutrality strategy until 31 January 2023, and presented information on rainwater yield coefficients in an inaccurate and misleading way, leading Natural England and the Council to misinterpret the case, and the Council to incur unnecessary and wasted expense in terms of counsel’s advice and officer time redrafting its evidence.”

That costs application was refused.

This is a decision which will cause ripples but in my view is wholly in line with the regime set out in the Conservation of Habitats Regulations and potentially applicable to issues relating to, for instance, nutrient neutrality or recreational impact (eg Chiltern Beechwoods SAC).

B Side: Keep The Customer Satisfied

Phew, no politics in this blog post. After my midweek Drive Time post I was politely asked by a reader to keep politics out of my comments on planning. I think it was felt that simonicity had become simon15minicity. All reaction is good, and thank you for it, but the request is difficult, given that the whole of the planning system is a political construct and given that every legislative stub that we have to navigate around is the result of an often short-term political decision in the past. We arrive at a better planning system by seeking to ensure that those political decisions are as considered as they need to be. I also had push-back from a couple of people at my characterisation of the prime minister’s comments on 15 minute cities as “bizarre”. I would simply refer readers to the numerous fact-check pieces out there (see eg Full Fact). Whether wilful or in ignorance, I don’t think there really is an excuse for mixing up the 15 minute city concept (previously supported by the Government – see eg this 31 March 2023 statement) with traffic management measures in cities such as Oxford to ration use of road space and prioritise active travel. At the recent Oxford Joint Planning Law Conference, that hotbed of woke radicalism, Jonathan Porritt spoke of the dangers of each of us being a WeWeBe: a well-informed, well-intentioned, bystander. Let’s not be that. We can avoid that whilst maintaining party political neutrality. If people who know about something don’t say something, who will?

The neutrality concept needn’t mean that nothing at all can be done – or said.

Simon Ricketts, 7 October 2023

Personal views, et cetera

Simonandgarfunkelicity

NN No

I may have been one of the first to blog on the nutrient neutrality issue in my 29 June 2019 blog post Another Green World: The South Coast Nitrate Crisis

Another Green World: The South Coast Nitrate Crisis

To quote from what I wrote over four years ago:

“I’m not sure that anyone can blame the EU, or lawyers, or local authorities, or developers, but no doubt they will. Rather, the problem arises from the apparent lack of adequate measures to ensure that, by virtue of its nitrate content, sewage generated as a result of new development does not harm the integrity of coastal waters protected as special areas of conservation and special protection areas under the Habitats and Birds Directives. Nitrate enrichment causes green algae, harmful to protected habitats and birds, through a process known as eutrophication. The chickens … are coming home to roost following a lack of priority for too long on the need by the Government and water companies to ensure that we have adequately funded and operated waste water treatment processes”

Of course the issue subsequently spread in terms of geography and by way of concerns as to phosphates as well as nitrates, hence references now to “nutrients”. (There are also related situations in relation to water neutrality in Sussex and in relation to recreational pressures on particular SACs – see my 9 October 2021 blog post Development Embargos: Nitrate, Phosphate & Now Water – and in relation to nitrogen deposition on protected areas caused by traffic, eg see my 8 April 2017 blog post Heffalump Traps: The Ashdown Forest Cases – but the rest of this post focuses on nutrients). 

This Government failed for far too long to grasp the nettle and now, when it has, it has been badly stung. Surprise surprise. 

My 29 August 2023 blog post The Government’s Big Move On Nutrient Neutrality – Now We Have Seen The Government’s LURB Amendment set out the way in which the Government belatedly looked to neutralise the nutrient neutrality problem for housebuilders and others who are stuck unless and until acceptable strategic or bespoke mitigation solutions are in place, by way of an amendment to the Levelling up and Regeneration Bill. The proposal was to take to remove nutrient pollution, by way of urban waste water, out of the ambit of the “harm to protected sites” integrity test. Subtle it wasn’t. 

The Lords report stage debate on what became Amendment 247YYA took place on 13 September 2013. We all know what happened: the amendment was rejected 192 – 161. 

As I set out in my 29 August 2023 blog post on the day the amendment was published, on balance I supported it – the need for a solution now is almost overwhelming – but I identified some questions to which the Government needed to be ready with answers. 

The brutal reality is that their answers weren’t good enough, particularly on the key question – whether this amounted to a regression from current environmental standards. The day after the amendment was published, the Office Of Environmental Protection sent the Government a letter making clear its expert view that the proposal would indeed amount to regression. Nature conservation bodies rose up as one notwithstanding Therese Coffey’s response (31 August 2023)

This may be a Government that still on paper retains a majority but boy it is on the ropes. The media and public opinion joyfully conflated the nutrient neutrality issue with its justified disgust as to the poor performance of water companies in allowing the discharge of untreated sewage to rivers and coastal waters (and the failure of the Government to hold those companies properly to account). I set out in my 9 September 2023 blog post LURB Lords Latest the kicking that the Government received on the proposal in the Commons on 5 September. 

As at 5 September Labour appeared to be sitting on the fence as to whether it would support the proposal but once they came out against it on 12 September 2023 (proposing an alternative amendment which was subsequently withdrawn during the debate without a vote) I would suggest that the writing was on the wall. As a sign perhaps of the Government’s desperation,  DLUHC published a late lobbying document in the form of the nutrient neutrality announcement: explanatory paper (11 September 2023).

The Government amendment was rejected 192 votes to 161. And that folks is that. Procedurally it cannot be reintroduced into the Bill when it returns to the Commons. Nor in my view is there time for a fresh Bill. 

What lessons to draw?

  • The Government moved far too slowly. Clive Betts nailed in it the 5 September 2023 debate: “This is hardly a new problem, is it? The Court decision was in 2018, yet last year we had the levelling-up Bill, which was really a planning Bill with a bit of levelling up added on—no mention of the issue there. In December we had major consultations on changes to the national planning policy framework—no mention of the issue there. The Committee wrote to the Minister and asked how many more consultations on planning issues there would be this year. We were given nine of them—no mention of the issue there. If it is such a serious issue, why has it taken the Government so long to act? It looks like the Government are making it up as they go along. This is a panicked response from the Government to the collapsing numbers of housing starts which the Minister simply wants to do something—anything—about.”
  • As a result of moving too slowly, it brought forward a proposal which had not been tested by way of any consultation whatsoever. Nor plainly had it been the subject of any cross-party agreement. Nor it seems had the Office for Environmental Protection been asked to advise ahead of the amendment being tabled, nor indeed Natural England. Indeed Natural England have not made any public statement in support of the proposal! Isn’t this all politics 101?
  • There was no clear narrative that explained the precise nature of the eutrophication issue so as to separate it from other justified concerns over water quality. 

What now should happen?

  • Plainly the Government should re-double its efforts to work with affected authorities and with the water industry to introduce strategic measures to reduce nutrient deposition into watercourses which are protected as SACs and SPAs. 
  • Plainly it should be working with Natural England to ensure that Natural England is in a position where its advice to authorities can be that, due to its confidence that these reductions will take place within the required timescale, there will not be an adverse effect on the integrity of the relevant SPA/SAC as a result of the particular proposal. With that assurance, and perhaps with guidance that any effects arise largely from occupation rather than construction and that therefore there is a role for planning conditions which at least allow developers to get on with construction if they are prepared to take the risk that reductions will take place in time for occupation, there is no need whatsoever for legislation. 
  • Other neutrality issues should receive equivalent focus. It’s not all about nutrients. 
  • Why don’t I finish with a controversial idea? If, in the face of expert advice to the contrary, planning applications are still held up, why doesn’t the Secretary of State call in the relevant application, in which case he becomes the competent authority in place of the local planning authority when it comes to determining whether there is an adverse effect on the integrity of the relevant SPA/SAC?

This coming week’s Lords Built Environment Committee report on the impact of environmental regulations on development will make interesting reading. We haven’t really even started to talk about environmental outcomes reports…

Simon Ricketts, 16 September 2023

Personal views, et cetera

The Guardian, 14 September 2023

The Government’s Big Move On Nutrient Neutrality – Now We Have Seen The Government’s LURB Amendment

No-one should be playing party politics with the nutrient neutrality issue. It’s difficult. It needs to be fixed. This is a quick post just to try to head off some of the comments that I have seen on social media today because the urgent need for a solution is in danger of being subsumed by general scepticism of this Government, exacerbated by the way that water companies have been allowed to fail in relation to water supply and sewage discharges. I write this on the back of Nicola Gooch’s excellent blog post this morning, LURB Watch: Government confirms Nitrates’ amendments to be tabled in House of Lords shortly  but since then we now have the proposed amendments to the LURB.

First of all, the basics:

House building is not the reason why some rivers and coastal waters around the country, protected as special areas of conservation or special protection areas by way of EU-derived legislation, are at or beyond a tipping point for the ecological integrity of those areas. Instead this is largely due to the historic run off of nitrates and/or phosphate from farm land and the inadequacy of our water infrastructure.

But the consequences of outflows from new housing has been seen by Natural England as the straw that would break the camel’s back and therefore its advice to local planning authorities faced with planning applications in affected catchments has been, in summary, not to approve them (and not to approve reserved matters applications or discharge pre-commencement conditions) unless the particular scheme can be shown to be nutrient neutral, given that otherwise in its view the “appropriate assessment” test in the Conservation of Habitats Regulations 2017 cannot be met, ie that the proposal will not adversely affect the integrity of any protected area.

So housebuilding has in practice been halted in various areas of the country until solutions can be implemented that demonstrably deliver nutrient neutrality.

To underline, this is not mainly about the polluting effects of new homes – it is about pre-existing problems.

I’ve written about the issues on various occasions, eg most recently in my 26 November 2022 blog post Nutrient Neutrality: Possibly Good News & Possibly Bad News and in my 6 June 2023 blog post CG Fry: AA Post PP.

The Government plainly recognises that the problem needs to be addressed. The current position, where so many schemes are stalled, is ridiculous and out of proportion to the extent to which housebuilding is actually the issue.

Right, so what is the Government’s solution?

Following Michael Gove’s press statement today, 100,000 more homes to be built via reform of defective EU laws  (29 August 2023), the latest tranche of tabled amendments ( https://bills-api.parliament.uk/api/v1/Publications/52407/Documents/3872/Download ) to the Levelling-up and Regeneration Bill have now been published, which include a number of amendments to the Conservation of Habitats Regulations.

The key proposed amendment is to introduce a new regulation 85B into the 2017 Regulations (see pages 19 and 20 of the pdf). Sub-paragraphs (2) and (3) would read as follows:

“(2) When making the decision, the competent authority must assume that nutrients in urban waste water from the proposed development, whether alone or in combination with other factors, will not adversely affect the relevant site.

(3) Accordingly, a potentially adverse effect on a relevant site caused by nutrients in urban waste water, whether alone or in combination with other factors, is not a ground for the competent authority to determine that—

(a) an appropriate assessment is required by regulation 77(6), or

(b) the proposed development will adversely affect the integrity of the relevant site or otherwise have negative implications for the site.”

Strengthened duties on water companies by way of their environmental permitting processes are also proposed in the amendments, but this is radical!

If enacted, it would certainly enable permissions, reserved matters approvals and pre-commencement conditions to be unjammed. On balance in my view it is to be supported. However, the Government does need to be ready with answers to questions like these:

  1. Given that the Government has committed to no regression from the environmental protections that we enjoyed pre-Brexit (NB Mr Gove, don’t give me that “defective EU laws” politicking – it’s our water system and environmental permitting system that is defective not the underlying law!), why does this not amount to regression? In its defence no doubt the Government would point to the commitments in the press statement not just to “significantly expanding investment in and evolving the Nutrient Mitigation Scheme run by Natural England, doubling investment to £280m to ensure it is sufficient to offset the very small amount of additional nutrient discharge attributable to up to 100,000 homes between now and 2030” but also the package of longer term measures that are set out in detail in the statement. But if these commitments are solid enough to be relied upon, why can’t they just be taken into account in determining that there will not be an adverse effect on the integrity of the relevant protected area? Why isn’t the Government confident that this would be Natural England’s advice? Wouldn’t that be a more legally coherent strategy than simply taking nutrients issues out of the appropriate assessment process? And if Natural England can’t sign that position off in relation to any particular protected area, doesn’t that rather have the whiff of regression?
  1. What about developers who have signed up to expensive nutrient neutrality schemes or are negotiating at present if the Government is effectively now removing the issue from their plate? Or will Natural England and local authorities still raise the nutrients issue by way of objection to proposals in planning terms, even if no longer able to wave the Conservation of Habitats Regulations big stick? Is it indeed right (or even envisaged) that developers should be let entirely off the hook?
  1. What about the water neutrality issue in Sussex, which has led to an equivalent logjam, or issues as to recreation impacts in other areas of the country? Similar principles surely apply.
  1. Will Parliament allow the Government to get away with shoehorning this set of provisions into the Bill at this late stage (see the comments in Nicola’s post) and what does it mean for the timing of Royal Assent? How confident can we be that the provisions will (a) survive to Royal Assent and (b) be brought into force?

These are just initial thoughts. Better informed commentary very welcome.

Simon Ricketts, 29 August 2023

Personal views, et cetera

CG Fry: AA Post PP

CG Fry v Secretary of State (Sir Ross Cranston, 30 June 2023) is a difficult case with a perhaps unsurprising answer, although one that is disappointing to many.

I’ve often written about the ongoing problems arising from Natural England’s advice that in certain areas, due to potential harm to Special Areas of Conservation and Special Protection Areas by way of nutrients (nitrates or phosphates), water abstraction pressures or recreational pressure, schemes should not be permitted to proceed without demonstrating (through the local planning authority carrying out “appropriate assessment” under the Conservation of Habitats Regulations 2017), that there will not be an adverse effect on the integrity of the relevant protected area. See for example my 18 March 2022 blog post New NE Nutrient Neutrality & Recreational Impact Restrictions (+ DEFRA Nature Recovery Green Paper).

The stage at which appropriate assessment is usually carried out is when an application for outline or full planning permission is being determined in circumstances where it is likely that the development will have a significant effect on an SPA or SAC. But one of the most frustrating aspects for developers about the introduction, usually without notice on the part of Natural England, of these controls is Natural England’s position, supported by the Government, that appropriate assessment is required even if planning permission has already been obtained and where what is being sought is reserved matters approval or discharge of a pre-commencement condition. I mentioned the problem in my 26 March 2022 blog post More On That Natural England Advice. As I said then:

“This of course cuts across the traditional planning law tenet that the planning permission stage is the point at which the principle of the development is determined to be acceptable, with subsequent approvals serving to define the detailed scale and disposition of development within the tramlines of what has been authorised by way of the permission. The authorities’ stance means that planning permission no longer gives any certainty as far as purchasers and funders are concerned and is a real impediment to market certainty and confidence. Who knows what equivalent restrictions lie ahead, after all? Even if your area is not affected at present, this should be of concern.”

I asked:

“Is anyone aware of this issue having been tested, on appeal or in litigation post 1 January 2021? Or is everyone being terribly British and waiting patiently for strategic solutions to be found to all of these neutrality issues before their reserved matters and pre-commencement conditions can be signed off? I suspect that some permissions will expire in the meantime. In my view this is not acceptable, or warranted, but am I a voice in the wilderness here?”

Well, the point now has been tested.

In CG Fry, outline planning permission had been granted for a residential development of 650 houses, community and commercial uses, a primary school and associated infrastructure. Reserved matters approval was secured. Natural England then published its advice to Somerset authorities on development in the Somerset Levels and Moors Ramsar Site, advising that  greater scrutiny was required of plans and projects that would result in increased nutrient loads which may have an effect on SPAs, SACs and sites designated under the Ramsar Convention. CG Fry then sought to discharge various pre-commencement conditions but the Council withheld approval on the basis that an appropriate assessment was required before the conditions could be discharged. CG Fry appealed and the inspector dismissed the appeal. To quote from the judgment:

“He determined that it was legitimate to apply paragraph 181 of the NPPF to give the Ramsar site the same protection in all respects as a European site under the Habitats Regulations 2017. That was because the discharge of the conditions would be an authorising act, as part of the wider consent process, that would allow the realisation of potential effects on the Ramsar site which the Natural England advice note sought to manage. Considering the overarching nature of paragraph 181, this applied regardless of the specific subject matter of the conditions themselves: DL24-26. The Inspector considered that the grant of outline planning permission and reserved matters approval did not have an effect on the scope of any necessary appropriate assessment; the validity of the planning permission was not in question: DL41.

The inspector then determined that the requirement for an appropriate assessment in the Habitats Regulations 2017 applied to the discharge of conditions stage. He rejected the claimant’s argument that inclusion of specific provisions relating to the grant of planning permission, including outline planning permission, at regulation 70 of the Habitats Regulations 2017, did not diminish the applicability of regulation 63, which was simply a sweep up provision: DL44. Even adopting the claimant’s approach that the permission in relation to “consent, permission or other authorisation” in regulation 63 is the planning permission referred to in regulation 70, the concept of “other authorisation” was a broad one. The claimant’s approach would create loopholes counter to a purposive approach to the Habitats Regulations 2017: DL45-47.

As the competent authority, the Inspector said, he was unable to carry out the necessary appropriate assessment to agree the conditions: DL71. He said that he had considered the other relevant planning considerations, in particular the impact on housing delivery: DL72, 74. However, the unfulfilled requirement for an appropriate assessment was an issue of material significance: DL77. In other words he conducted the balancing exercise and concluded that in this case the delay in housing delivery was outweighed by the need to protect the Ramsar site.”

“The claimant’s case in general terms is that the effect of additional phosphate loading resulting from its proposed development was not a material consideration to the determination of the conditions at issue in the case. It was legally irrelevant because it fell outside the specific parameters of what the outline planning permission and the reserved matters approval had left over for consideration under these conditions. The material for the discharge of these conditions was satisfactory, and the only thing preventing their discharge was whether an appropriate assessment of the impact of phase 3 of the development on the Ramsar site from additional phosphate loading was required. There was no nexus between the conditions in relation to phosphates, even with the condition relating to waste water. Nor, on the claimant’s case, does the combination the Habitats Regulations 2017 and paragraph 181 of NPPF change that. The Inspector was wrong in his analysis and conclusions.”

“In broad terms ground 1 is firstly, that the Inspector wrongly construed the Habitats Regulations 2017 and should not have applied regulation 63, as he did, to the discharge of conditions on a reserved matters approval. Mr Banner KC contended that regulation 70 was the relevant provision, and it is confined to planning (including outline planning) permission.”

The judge rejected the ground: “While on a strict reading of the Habitats Regulations 2017 the assessment provisions of regulation 63 do not cover the discharge of conditions, in my view they do apply as a result of firstly, article 6(3) of the Habitats Directive, secondly, a purposive interpretation of their provisions and thirdly, case law binding on me”

“ Mr Banner contended that the Habitats Directive had no status in the UK legal system, except through regulation 9(3) of the Habitats Regulations 2017. The provisions of the European Union (Withdrawal) Act 2018 do not take the argument any further, he submitted, because there is no CJEU pre-existing case law which interprets the Habitats Directive as imposing a requirement to conduct an appropriate assessment at subsequent stages, such as the discharge of conditions on a reserved matters approval. He submitted that Harris concerned whether the claimed obligation under article 6(2) had been recognised by the court before Brexit, and it had. By contrast there is no CJEU or domestic case preceding exit day which supports the view that article 6(3) of the Habitats Directive can be relied upon to impose a requirement for an appropriate assessment at the discharge of conditions stage. Unlike Harris section 4(2)(b) of the Withdrawal Act 2018 is not engaged in this case given the absence of relevant pre-exit case-law.

In my view article 6(3) of the Habitats Directive continues to have effect in domestic law as a result of section 4(2)(b). Johnson J explained in Harris that the requirements of article 6(3) were accepted as binding by the CJEU in Waddenzee: [90]. Articles 6(2) and 6(3) of the Habitats Directive are closely related, so as to be “of a kind” with one another for the purposes of section 4: [91]. The demands of section 4(2)(b) are therefore met. The section is explicit that the recognition in the case law does not have to be by way of the ratio of a case “(whether or not as an essential part of the decision in the case)“.

“Consequently, the requirements of article 6(3) of the Habitats Directive remain part of UK law. That article requires that the competent authorities should not agree a project until an appropriate assessment has been undertaken and it shows that it will not adversely affect the integrity of a site. A planning consent is part of agreeing a project when it is necessary to implement a development. In this case the discharge of pre-commencement conditions was a necessary step in the implementation of the development. An appropriate assessment had not been undertaken up to that point, so consequently the Inspector determined that he could not discharge the conditions prior to one being undertaken. His conclusion was consistent with article 6(3) of the Habitats Directive.”

“Secondly, the Habitats Regulations 2017 demand a purposive interpretation so that the appropriate assessment provisions of regulation 63 apply to a subsequent consent stage including reserved matters applications and the discharge of conditions. A broad and purposive interpretation of the regulations flows from the strict precautionary approach which the CJEU has adopted to the assessment provisions of the Habitats Directive…”

“In my view Wingfield and Swire are authority for the proposition that an appropriate assessment can apply at the reserved matters or discharge of condition stage even if there has been a grant of outline planning permission where the subsequent approval is the implementing decision. There is support, as Lang J found in Wingfield, in the case law concerning the EIA multi-stage consenting procedure such as Barker. There, as we saw, Lord Hope recognised that a material change in circumstances could require an assessment at the reserved matters stage. It will be recalled that in Friends of the Irish Environment Ltd the CJEU stated that the meaning of “development consent” was relevant to defining the equivalent term “agree” in the Habitats Directive. All this is retained case law under the Withdrawal Act 2018 concerning the interpretation of the Habitats Directive and the Habitats Regulations 2017. That the facts in Wingfield and Swire were different is no basis for undermining the principle they established. The common law system would not survive if this were the case, since there will always be a variation, even if slight, in the facts of later cases. That does not preclude the continued application of principle.”

“The upshot is that the Habitats Directive and Habitats Regulations 2017 mandate that an appropriate assessment be undertaken before a project is consented. That is irrespective of whatever stage the process has reached according to UK planning law. The basal fact in this case is that neither at the permission, reserved matters, or conditions discharge stage has there has been an appropriate assessment. Application of the Habitats Directive and a purposive approach to the interpretation of the Habitats Regulations 2017 require the application of the assessment provisions to the discharge of conditions. The strict precautionary approach required would be undermined if they were limited to the initial – the permission – stage of a multi-stage process.”

Ground 2: “For the claimant Mr Banner contended that paragraph 181 of the NPPF did not enable the Inspector to take into account considerations which were legally irrelevant to those conditions.” [Paragraph 181 states that Ramsar sites should be given the same protection as SPAs and SACs].

The judge: “The impacts on the Somerset Levels and Moors Ramsar Site and paragraph 181 of the NPPF cannot be said to be irrelevant considerations in this development. The issue is the read-across of the Habitats Regulations 2017 to Ramsar sites as provided by the NPPF in circumstances where the Council’s shadow appropriate assessment shows that if the project if permitted it will cause harm to the Ramsar site.”

Ground 3: “Mr Banner submitted that even if regulation 63 applies to the discharge of conditions, it ought to be interpreted in such a way that the scope of the appropriate assessment reflects the scope of the conditions being considered. Thus, for example, in the context of an application to discharge a condition relating to root protection zones for trees, an appropriate assessment would concern any effects on site integrity arising from the range of choices the decision-maker has in relation to root protection zones, given the permission granted (and any conditions already discharged). The appropriate assessment would not consider the effects of the scheme as a whole on the habitat in question.”

The judge: “Regulation 63 requires an appropriate assessment to consider the implications of the project, not the implications of the part of the project to which the consent relates. […]  As Mr Wilcox for the Council put it, the thing which is to be the subject of the appropriate assessment is the thing which will be permitted by the authorisation, so that where the decision is the final stage in granting authorisation for a development, it is the development which is to be assessed.”

It was a certainly an issue to be tested and, whilst Richard Moules and Nick Grant (for the Government) and Luke Wilcox (for Somerset Council) may have been on the winning side, well done to Charlie Banner KC and Ashley Bowes for arguing it (and to CG Fry for being prepared to put its head above the parapet). I hope Charlie won’t mind me quoting his subsequent LinkedIn post in its entirety:

“Judgment in CG Fry has been delivered this morning . Key headlines:

1) The Court agreed with the Claimant that on a natural and ordinary reading of the Habitats Regulations they do not require appropriate assessment at the reserved matters or discharge of conditions stages

2) However, CJEU case law to the effect that the EIA Directive’s requirements apply at the reserved matters stage was to be read across to the Habitats context and to discharge of non-RM conditions, as well as first instance domestic case-law upholding the legality of a *voluntary* AA at reserved matters stage.

3) This is an EU “obligation… identified by a court” pre-Brexit which is preserved by the EU Withdrawal Act 2018 ss4&6, because the direct effect of Article 6(3) of the Habitats Directive had been recognised by the CJEU pre-Brexit.

4) Therefore the Habitats Directive continues to apply directly and overcomes the natural and ordinary meaning of the Regulations.

The judge has indicated he is minded to grant permission to appeal his judgment and the parties are discussing the potential for a leapfrog appeal to the Supreme Court.

The judgment will present Department for Levelling Up, Housing and Communities with some challenges for any future legislative solution for the nutrients issue given the Court’s approach to considering whether s4 of the Withdrawal Act preserves post-Brexit the force of EU “obligations… of a kind recognised by a court “ pre Brexit. The Claimant said that this meant the Courts had to have recognised an obligation for AA at discharge of conditions stage, which they hadn’t. The judgment suggests that the relevant obligation is article 6(3) generally. The potential effect of this is that it will be open to anyone to apply to court to set aside legislation on the basis it is contrary to article 6(3) *even if based upon an interpretation of article 6(3) that hasn’t previously been made by the Courts*

The Home Builders Federation’s evidence to court was that 44,000 already consented homes in England are currently blocked because of this issue. The Land Promoters and Developers Federation has also been very active on this issue.

Watch this space!”

A final couple of wry comments from me:

  1. If anyone voted for Brexit thinking that these sorts of problems would become a thing of the past, more fool them.
  1. Let’s not forget that the root of much of the issues over neutrality – whether in relation to nutrients and water abstraction – is the appalling lack of investment on the part of the privatised water companies.

As the judge says at the beginning of his judgment: “In broad terms, this issue relates to the phosphate loading of protected water habitats, leading to eutrophication. This is caused by reasons including agricultural practices and under-investment in water infrastructure. There is a risk of the problem being exacerbated by water generated by new developments which contain phosphates, principally from foul water. The Home Builders Federation states that, due to the unavailability of mitigation options, this issue is holding up the building of no fewer than 44,000 homes in England which already have planning permission.” (my emboldening)

Until the CG Fry judgment landed this morning, I had been intending to pull together some wider thoughts on the implications for planning and the environment of the poor state of our privatised water industry, provoked by articles such as UK government looks at nationalising Thames Water as crisis deepens (FT, 28 June 2023) where delayed housebuilding, aka providing people with homes,  is just part of the collateral damage.

Simon Ricketts, 30 June 2023

Personal views, et cetera

Pic courtesy Towfiqu barbhuiya via Unsplash

Ruler

Or REULRR. Or the Retained EU Law (Revocation and Reform) Bill, introduced into Parliament on 22 September 2022. A Bill which I was only vaguely aware of until Nicola Gooch’s excellent blog post What Truss did on my holidays: It’s much more than ‘just’ the mini budget….  (26 September 2022). 

As Nicola explains:

 “If passed, REULRR will effectively sweep away any and all EU laws that the Government hasn’t actively decided to keep.

It does this by:

  1. Repealing EU derived laws by the end of 2023. The government will be able to extend that deadline to 23 June 2026 (the tenth anniversary of the Brexit referendum) but can’t further extend it.
  2. Repealing the principle of supremacy of EU law by the end of 2023. Currently, any EU decision reached before 1 January 2021 is binding on UK courts unless the government departs from it. However, this bill will subjugate all EU law in favour of UK law by default. 
  3. Repealing directly effective EU law rights and obligations in UK law by the end of 2023; and
  4. Establishing a new priority rule requiring retained direct EU legislation to be interpreted and applied consistently with domestic legislation.”

She discussed this further at our clubhouse Planning Law Unplanned session last week on the Growth Plan, which Sam Stafford has now trimmed neatly into a 50 Shades of Planning podcast:

🍎 https://t.co/BaNDFpIlfb

🎧 https://open.spotify.com/episode/0vKryknMBdUBxOdidhTX26

You will remember that the European Union Withdrawal Act 2018 had the effect of retaining, post Brexit, EU-derived domestic legislation such as the regulations in relation to environmental impact assessment, strategic environmental impact and conservation of habitats, leaving it to Parliament in due course to determine the extent to which the legislation should subsequently be repealed or amended. 

As explained in the explanatory notes to the REULRR Bill:

”The REUL [retained EU-derived law] framework established by EUWA, however, was not intended to be maintained indefinitely on the UK statute book and now the Government is in the position to ensure REUL can be revoked, replaced, restated, updated and removed or amended to reduce burdens.”

The Bill now places a firm deadline on that process:

“The Retained EU Law (Revocation and Reform) Bill facilitates the amendment, repeal and replacement of REUL by the end of 2023, and assimilates REUL remaining in force after that date by removing the special EU law features attached to it.”

The end of 2023 deadline can only be extended, to 23 June 2026 “should a lack of parliamentary time, or external factors, hinder progress towards reform of retained EU law prior to the 2023 sunset date.”

Is this of concern?

In short, yes of course. It may be said that the Government is committed to a principle of non-regression from current environmental standards, but given the current political pinball and the lack of relevant ministers with any real experience of the sheer complexity and nuances of what they are dealing with, frankly anything is possible. Campaign groups are certainly on edge: Brexit freedoms bill’ could abolish all pesticide protections, campaigners say (Guardian, 29 September 2022).

To an extent, at a high level, the principle of non-regression is built into the trade and co-operation agreement between the UK and EU which was signed on 30 December 2020 and came into force on 1 May 2021. The UK gave various, at least theoretically, binding commitments in the agreement as to non-regression from environmental levels of protection, which I describe in my 27 December 2020 blog post Brexit & Planning: An Update.

There are also generalised commitments within the Environment Act 2021 (which of course Parliament is always of course at liberty to amend or repeal as it chooses). The Government consulted in May 2022 in relation to its draft environmental principles statement. The statement has not yet been finalised and there is not yet any duty upon ministers to take it into account in their policy making. This may not be until summer 2023 at the earliest! The Office for Environmental Protection (a body established pursuant to the 2021 Act) has criticised the statement for “a relatively limited degree of ambition”. The OEP has similarly criticised as unambitious the Government’s draft environmental targets, also consulted upon pursuant to the 2021 Act. 

As against these inchoate commitments to environmental standards, what is going to give in the face of a Government which, according to its Growth Plan, will be “disapplying legacy EU red tape where appropriate” in the investment zones it is proposing, and which proposes a Planning and Infrastructure Bill which will be:

  • “reducing the burden of environmental assessments
  • reducing bureaucracy in the consultation process
  • reforming habitats and species regulations”?

Genuine improvements to the processes are certainly possible. But do we trust the Government to strike an appropriate balance, hurtling towards a self-imposed December 2023 deadline and (at the latest) 2024 general election? In the coming year, most of our environmental legislation, and planning legislation to the extent that it is intertwined, will need to be reviewed, line by line, and, given that most of it is in the form of secondary legislation (and the sheer lack of time – after all the REULRR Bill covers all EU derived legislation!), there will be relatively limited Parliamentary scrutiny of that process. Even with the best of intentions, how is this timescale even going to be possible if we are to avoid a complete bodge-up? We have been treading (often polluted) water for so long and we still have no sense whatsoever of what the long trumpeted “outcomes focused” approach will look like in practice – eg see my 2 April 2022 blog post Is the Nature Recovery Green Paper The Answer? (& If So What Was The Question?)

On a slightly different, although possibly related, note….

At 6 pm on Wednesday 5 October 2022 we will be having a discussion on Clubhouse with barrister Hashi Mohamed, around the themes of his FT article The housing crisis sits at the centre of Britain’s ills (1 October 2022, behind paywall) and his recent book A home of one’s own, a trenchant and personal look at the politics of planning and housing.

Join via this link. If you use the link to RSVP in advance (you don’t have to) you’ll get a reminder when we start – and we can get a feel for likely numbers. 

What is needed to calm the nerves all round – on planning, on housing, on environmental protection – is detail. When are we going to get it? HM Treasury announced on 26 September 2022:

“Cabinet Ministers will announce further supply side growth measures in October and early November, including changes to the planning system, business regulations, childcare, immigration, agricultural productivity, and digital infrastructure.”

Always just another month or so to wait, every time.

Simon Ricketts, 1 October 2022

Personal views, et cetera

Image courtesy of Estay Lim via Unsplash

Neutrality: Government Clambers Off The Fence

Ahead of a late but welcome announcement by the Government, there was a silly headline in The Times this week: Homes crisis ‘worsened by environmental red tape’ (18 July 2022). Yes, we are back to the topic of my 16 July 2022 blog post: nutrient/water neutrality.

It’s good that this huge issue is attracting media attention – and I’ll come on to the Government announcement in a moment – but it is disappointing to see the usual “red tape” sneer.

The problem isn’t the rules or bureaucracy: we have specific areas designated of particular ecological importance and sensitivity, the integrity of some of which is under threat because of the existing levels of nutrients draining into them, from farming (eg fertilisers, animal waste) and from homes (human waste), and the integrity of others which is under threat due to the consequences of over-abstraction of water. These situations haven’t been adequately dealt with by the water companies or government agencies, meaning that even one more home being built in these catchment areas is considered by Natural England to be unacceptable without adequate mitigation in place (which can be difficult, particularly for smaller schemes). The problem isn’t the housebuilding, it’s the pre-existing precarious state of these areas.

It is a big problem, and it has been with us for a long time now (see my previous blog posts).

The Government has been waking up to the issue. Back in March 2022, DEFRA announced some support for affected local planning authorities, Nutrient pollution: reducing the impact on protected sites  (16 March 2022). But this was little comfort to those stuck in the system.

But this week we saw more wide ranging measures announced by DEFRA and DLUHC. Of course they won’t provide an immediate solution, but they are certainly welcome. 

The package of announcements comprises

These are the main measures announced by the Secretary of State:

  • “In order to drive down pollution from all development in the relevant catchments, we will be tabling an amendment to the Levelling Up and Regeneration Bill. This will place a new statutory duty on water and sewerage companies in England to upgrade wastewater treatment works to the highest technically achievable limits by 2030 in nutrient neutrality areas. Water companies will be required to undertake these upgrades in a way that tackles the dominant nutrient(s) causing pollution at a protected site. We are also using feedback from the recent ‘call for evidence’ to water companies to identify where these upgrades could be accelerated and delivered sooner.”
  • Natural England is directed to establish a nutrient mitigation scheme. “Defra and DLUHC will provide funding to pump prime the scheme: this is intended to frontload investment in mitigation projects, including wetland and woodland creation. This will then be recouped through a simple payment mechanism where developers can purchase ‘nutrient credits’ which will discharge the requirements to provide mitigation. Natural England will accredit mitigation delivered through the Nutrient Mitigation Scheme, enabling LPAs to grant planning permission for developments which have secured the necessary nutrient credits…We will announce further details in the autumn when the scheme will launch, and in the meantime, Natural England will be in touch with local authorities and developers.”
  • “Longer term, we continue to progress proposals to reform the Habitats Regulations so that impacts on protected sites are tackled up front, focusing on what is best for bringing sites back into favourable status.”
  • “We will make clear in planning guidance that judgements on deliverability of sites should take account of strategic mitigation schemes and the accelerated timescale for the Natural England’s mitigation schemes and immediate benefits on mitigation burdens once legislation requiring water treatment upgrades comes into force. DLUHC will revise planning guidance over the summer to reflect that sites affected by nutrient pollution forming part of housing land supply calculations are capable of being considered deliverable for the purposes of housing land supply calculations, subject to relevant evidence to demonstrate deliverability. It will be for decision takers to make judgements about impacts on delivery timescales for individual schemes in line with the National Planning Policy Framework.”

Joanna Averley’s letter goes into more detail as to how the proposed new statutory duty on water companies will help:

“The majority of nutrient pollution from residential properties enters waterbodies via treated discharges from wastewater treatment works (WWTW). The performance of WWTW varies based on the limits in environmental permits issued by the Environment Agency, which in turn reflect the environmental requirements of the waterbodies to which the effluent is discharged. The performance of WWTW is therefore the central factor in the level of nutrient pollution associated with existing homes and new development. It is therefore logical that effort on reducing nutrient pollution associated with housing focusses on upgrading WWTW. The statutory obligation for upgrading WWTW, which will be introduced into the LURB, will ensure that WWTW in nutrient neutrality catchments are operating at the highest level of performance, rectifying nutrient pollution at source. This will reduce the pollution from not only new development coming forward, but also from the majority of existing dwellings in affected catchments, representing a significant decrease in overall pollution from housing.

The specific performance levels of the connected WWTW is a major variable when determining the amount of mitigation new development has to secure to achieve nutrient neutrality. Suitable mitigation measures might include constructed wetlands or land use change, which can be land intensive. Under Natural England’s Nutrient Neutrality methodology, the permit limit is used, or where there is no permit limit on nutrient discharges from WWTW, a standard precautionary figure is used (8mg/l for phosphates (P) and 27mg/l for nitrates (N)). The statutory obligation from 2030 will require WWTW to operate at the technically achievable limit (TAL); for phosphates this is 0.25mg/l and nitrates 10mg/l. This action will ameliorate nutrient pollution and significantly reduce the mitigation burden for developments.

The habitat regulations require that mitigation be secured for the lifetime of the development which Natural England consider to be 80-120 years. The obligated upgrades to WWTW required from 2030; will provide clarity from the point of the LURB measures coming into force. For developments this means that the current high level of mitigation will only be required up to the end of 2030. After 2030, the pollution levels via WWTW will be much reduced and so a lower level of mitigation will be required. This reduces the overall mitigation burden on housing developments coming forward in nutrient neutrality catchments.”

This should be welcomed (even if it is so belated and does raise questions as to whether water companies will actually be able to deliver – and at whose cost) but of course there is still the period to 2030 before these new permit limits apply and so it is important that the promised nutrient mitigation scheme is up and running as soon as possible. Housing Today have raised significant concerns on that score in their piece, Government’s nutrient mitigation scheme ‘years away’ (22 July 2022)

Finally, the ministerial statement sets out unambiguously the Government’s position as to whether the Regulations bite on reserved matters applications and applications to discharge pre-commencement conditions: “The Habitats Regulations Assessment provisions apply to any consent, permission, or other authorisation, this may include post-permission approvals; reserved matters or discharges of conditions.” Joanna Averley’s letter promises further planning practice guidance on this issue. 

In the meantime, there is no Planning Law Unplanned clubhouse event this week but I am speaking at a clubhouse event arranged by Iain Thomson of Bellona Advisors for 6pm on Monday 25 July 2022 on the subject of Strategic Rail Freight Interchanges, alongside writer Gareth Dennis and Intermodality’s Nick Gallop – join here. And for a taster of what we may cover, here’s Iain’s recent SRFIs blog post.  

Simon Ricketts, 23 July 2022

Personal views, et cetera 

18 July 2022 tweet

More On That Natural England Advice

This is a follow-on from my snappily titled blog post last week New NE Nutrient Neutrality & Recreational Impact Restrictions (+ DEFRA Nature Recovery Green Paper).

Implications of NE’s updated generic Nutrient Neutrality Methodology and updated catchment calculators referred to on page 4 of its 16 March 2022 letter

The updated methodology and calculators are appended to the letter, which advises that individual authorities consider how to transition to “the new tools and guidance”.

My blog post focused on the implications for areas not previously caught by nutrient neutrality issues but of course the guidance also creates an element of uncertainty for areas already caught, where good progress has been made towards solutions, if calculations need to be amended and given that there can be no certainty as to what transitional period (if any) each authority will allow for.

Examples of progress

A huge amount has gone into developing strategic mitigation solutions, but it is inevitably complicated – involving multiple land interests, commercial arrangements, local authority joint working, robust survey work and ecological analysis. The Solent nutrient market pilot is a great example – see this LinkedIn post by Simon Kennedy last month, strategic environmental planning officer for the Partnership for South Hampshire.

As another example, in Kent, Ashford Borough Council is progressing with a strategic mitigation solution in relation to potential effects on Stodmarsh Lakes, taking a report to cabinet on 31 March 2022.

Let’s hope that the new advice does not slow down progress in relation to these initiatives. Let’s also hope that these pioneers pave the way for a much faster roll out of solutions for the additional areas now caught.

Another dark cloud?

The Natural England advice letter also referenced last year’s High Court ruling, R (Wyatt) v Fareham Borough Council (Jay J, 28 May 2021), which is currently subject to an appeal – which the Court of Appeal will hear in the first week of April 2022. The advice should be regarded as provisional until the outcome of that case. The concern is that the case concerned a challenge to Natural England’s 2020 advice on achieving nutrient neutrality in the Solent region on the basis that the advice, in effect, was not stringent enough – see our Town Library summary of the first instance ruling prepared last year by my colleague Safiyah Islam. The court rejected the challenge but if the Court of Appeal takes a different stance then Natural England may need again to reconsider its methodology.

Reserved matters and pre-commencement conditions

One particularly unfair aspect of the way in which many local planning authorities are applying Natural England’s advice is to assert that if the necessary Conservation of Habitats Regulations assessment work was not done at planning permission stage (which will often not have been the case if the nutrient neutrality issue had not been identified by Natural England at that point) it must now be done at reserved matters stage, in the case of an outline planning permission, or at the stage of discharge of any pre-commencement condition, in the case of a full planning permission.

This of course cuts across the traditional planning law tenet that the planning permission stage is the point at which the principle of the development is determined to be acceptable, with subsequent approvals serving to define the detailed scale and disposition of development within the tramlines of what has been authorised by way of the permission. The authorities’ stance means that planning permission no longer gives any certainty as far as purchasers and funders are concerned and is a real impediment to market certainty and confidence. Who knows what equivalent restrictions lie ahead, after all? Even if your area is not affected at present, this should be of concern.

Local planning authorities appear to base their position on a decision of the High Court (i.e. a first instance ruling, not the Court of Appeal or Supreme Court) in R (Wingfield) v. Canterbury City Council (Lang J, 24 July 2019), but surely the case is capable of being distinguished in at least the following ways:

• The basic facts were different – a claimant was seeking to quash the outline planning permission because the LPA had failed to carry out appropriate assessment in a lawful manner. The developer and LPA had accepted there was a breach but had sought to rectify it by carrying out appropriate assessment at reserved matters stage – which the court agreed remedied the breach. This was not a case where the developer was challenging the ability of the LPA to undertake appropriate assessment at reserved matters stage or indeed to require appropriate assessment at that stage.

• Lang J relied in her reasoning on the Habitats Directive and interpretation of the Directive in rulings of the Court of Justice of the European Union. That was permissible at that time but since 1 January 2021 is no longer how the UK courts are able to approach these issues. The Habitats Regulations are now to be interpreted on their own terms without reference to the Directive. This potentially gives the UK courts the opportunity to ensure that the approach to assessment in relation to the stages of decision making allowed for in the Town and Country Planning Act 1990 are consistent with the legislative framework of the 1990 Act – i.e. issues of principle are for outline permission stage, with the outline permission setting the parameters for subsequent more detailed decision making at reserved matters stage and discharge of other conditions – but without the principle of the basic acceptability of the development being able to be re-visited at those later stages.

It should also be noted that regulation 70 of the 2017 Regulations is headed “grant of planning permission” and provides that the “assessment provisions” apply to specified categories of decision. None of these is a decision to grant reserved matters approval, or a decision to discharge a pre-commencement condition.

Is anyone aware of this issue having been tested, on appeal or in litigation post 1 January 2021? Or is everyone being terribly British and waiting patiently for strategic solutions to be found to all of these neutrality issues before their reserved matters and pre-commencement conditions can be signed off? I suspect that some permissions will expire in the meantime. In my view this is not acceptable, or warranted, but am I a voice in the wilderness here?

And lastly

Just to note that there was also a Welsh case on nitrates last week, R (National Farmers Union of England and Wales) v Welsh Ministers (Sir Wyn Williams, 23 March 2022). Welsh farmers are unhappy about the Welsh Government ending, post-Brexit, certain dispensations as to the amount of livestock manure that can be deposited on grassland. The claim, based on an asserted breach of legitimate expectation, as well as lack of rationality, failed.

This coming Tuesday 29 March at 6pm we will be focusing on all of these Natural England neutrality issues: “More Natural England Development Bans – What To Do?” – there is so much to cover with our panellists, who will include Charles Banner QC, Mary Cook, Tim Goodwin (Ecology Solutions) and Peter Home (Paris Smith). Link here.

Simon Ricketts, 26 March 2022

Personal views, et cetera

Development Embargos: Nitrate, Phosphate & Now Water

Just as solutions are beginning to emerge to unlock the development embargos that have been in place in many areas due to the nutrient neutrality issue, areas of Sussex now have a new problem: water.

For over two years now, where the integrity of special areas of conservation or special protection areas (areas of nature conservation importance previously protected at EU level) are already under stress due to nitrate or phosphate pollution (usually due to historic farming practices), Natural England has been advising local planning authorities that an appropriate assessment cannot be reached under regulation 63 of the Conservation of Habitats and Species Regulations 2017 to the effect that further development, causing additional sewage or surface water run-off will not affect the integrity of nearby SACs and SPAs unless measures will are secured to achieve neutrality, either on or off site. Under the 2017 Regulations, unless a development can pass that appropriate assessment test it’s stuffed, no go.

I first wrote about the nitrates issue over two years ago in my 29 June 2019 blog post Another Green World: The South Coast Nitrate Crisis.

Developers on large sites have increasingly looked for suitable onsite measures and some authorities have been able to make available offsite measures to allow development to proceed.

Natural England’s advice on achieving nutrient neutrality for development in the Solent region (5th edition, June 2020) survived a legal challenge from campaigners who argued that it was not stringent enough (see R (Wyatt) v Fareham Borough Council (Jay J, 28 May 2021)) and Turley’s Peter Home and James Cording provided a useful update as to progress in finding solutions to what is otherwise a complete bar to development: Solent nitrogen neutrality: 18 months on, where are we now? (Turley, 11 November 2020).

Natural England’s initial advice in relation to nitrate neutrality was then followed by advice as to the need for phosphate neutrality, for instance in certain areas of Somerset and Cornwall, eg this is Natural England letter dated 15 April 2021 in relation to potential effect of phosphates on the River Camel Special Area of Conservation

Topically, HBF’s director for cities, James Stevens, has written an article Wading through the effluent in the October 2021 edition of Housebuilder magazine as to the problems being caused to housebuilders by needing to achieve nutrient neutrality, even where a technical solution can be found – the average costs being apparently over £5,000 per dwelling.

But those involved with development in Horsham, Crawley and Chichester, which fall within the Sussex North Water Supply Zone, are all now faced with an even more challenging issue: the potential need to demonstrate water neutrality. Natural England has become increasingly concerned as to the impact of groundwater abstraction on the Arun Valley SPA, SAC and Ramsar site. It has recently published its Position Statement for Applications within the Sussex North Water Supply Zone – interim approach (September 2021):

“Natural England has advised that this matter should be resolved in partnership through Local Plans across the affected authorities, where policy and assessment can be agreed and secured to ensure water use is offset for all new developments within Sussex North. To achieve this Natural England is working in partnership with all the relevant authorities to secure water neutrality collectively through a water neutrality strategy.

Whilst the strategy is evolving, Natural England advises that decisions on planning applications should await its completion. However, if there are applications which a planning authority deems critical to proceed in the absence of the strategy, then Natural England advises that any application needs to demonstrate water neutrality. We have provided the following agreed interim approach for demonstrating water neutrality:

The relevant authorities are now advising applicants accordingly. Crawley Borough Council’s website for instance now says this:

“Developers / planning applicants who can demonstrate water neutrality such as having significant water efficiency measures built into their development and by providing offsetting measures to reduce water consumption from existing development, and who are able to enter into legal obligations to secure these measures, would be able to proceed, subject to the planning process. The onus is on developers and planning applicants to demonstrate that they can deliver water neutrality for their proposals. For applications in these circumstances which are not able to do this, the Local Planning Authority [the council] when determining a decision, would unfortunately have no choice but to refuse them, as a matter of law, in light of the Natural England Statement.

The Local Planning Authority [the council] has written urgently to agents of affected applicants advising them of Natural England’s position and advising them that, for the time being, all applications where a positive decision / recommendation was / is to be made on an application will have to be delayed if they are within the Southern Water supply zone, until the matter of water neutrality can be addressed.”

Without speedy solutions, this is going to create real problems both for individual developers in the area and for authorities in bringing forward deliverable local plans.

No doubt there will be solutions in due course (and questions do have to be asked as to whether the issue really lies with the water abstraction licences, which presumably were the subject of appropriate assessment under the 2017 Regulations and their statutory predecessors, rather than with those who are seeking to have access the abstraction of which has already been licensed!) but how long will that take and at whose cost?

In the meantime, what an unplanned mess.

Simon Ricketts, 9 October 2021

Personal views, et cetera

Talking of Planning Law Unplanned…our clubhouse session will tackle this subject in more detail with practical, authoritative, input from special guests including Peter Home (mentioned above), Tim Goodwin, Charlie Banner QC, Richard Turney and others. Do join us at 6 pm on Tuesday 12 October. Link to app here.