Background
Many of our watercourses have an excess of nitrates and phosphates which can deplete oxygen levels which speeds up growth of certain plants and impacts detrimentally on fish, insects, and plants. The primary cause for the excess nutrients is agriculture, along with wastewater treatment works, which require upgrading after years of under investment by water companies.
New residential development brings with them wastewater and sewage, which leads to nutrient pollution.
Natural England Response
Natural England have sent out letters to all affected Councils which confirm that numerous habitat sites are in an unfavourable condition due to elevated nutrient levels. Their advice is that new housing development should be refused unless they can demonstrate they are ‘nutrient neutral’. This now affects 74 local authorities and has caused significant delays for housebuilding throughout the country.
The basic legal requirement for local planning authorities is to undertake an ‘appropriate assessment’ before granting consent or permission for any residential developments that would have a significant effect on a European site. Permission can only be granted where it has been concluded that the proposal will not adversely affect the integrity of the European Site.
Recent High Court Case
However, a recent High Court Case – C G Fry & Son Ltd V Secretary of State for levelling up Housing and Communities (2023) EWHC 1622 – adds further to this problem.
This case involved a housebuilder who was granted outline planning permission in 2015 for a development including residential development. Reserved matters were subsequently granted. Both of these were before Natural England issued their advice concerning nutrient neutrality.
There were a number of pre-commencement conditions that needed approval from the Council and in 2021, the applicant applied to discharge the conditions.
The Council however did not grant approval of the conditions on the basis that an ‘appropriate assessment’ of the whole scheme was required to test the impact of the proposal on the Somerset Levels and Moors Ramsar Site.
The applicant appealed the decision which was dismissed. The decision was challenged in the High Court. The High Court decision failed as the Habitat Regulations still require local planning authorities to conduct ‘appropriate assessments’ not just of the original decision to grant a planning permission but also in relation to subsequent decisions, e.g. to discharge pre-commencement conditions or approved reserved matters.
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Outcome
Therefore, in simple terms, a Council will not be able to use a decision to approve any application that relates in a net gain in new homes until an ‘appropriate assessment’ has been undertaken. This is similar to other designated areas of importance where Natural England have issued letters outlining that approval of applications should not be given until appropriate mitigation is provided, for example at the Chilterns Beechwoods Special Area of Conservation.
The subsequent consequence of the advice from Natural England has been enormous and the Home Builder’s Federation claim that it is blocking permissions on around 100,000 homes. This further development will also have further notable effects throughout this industry.
Whilst the information in this article reflects the current legal position and the regulations in place, it’s important to note that this will evolve over time. Laws and guidelines change to adapt to new priorities. There have been movements in the government to reduce the current restrictions, but they have not received the necessary support at the current time. We will aim to keep readers informed if any substantive changes are made to the position in practice.
If you have any sites within these areas and would like advice, please do contact us and we can help you navigate through the process.
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