Planning and water pollution

I am keen for environmental NGOs and lobby groups to use the planning system as best they can and I tracked the recent way in which water pollution has impacted on plan-making and decision-taking for a group of bioregionalists that I thought could be of wider interest.

Nutrient Pollution

This is a note relating to the issue of nutrient pollution is impacting the supply of new housing through the planning system.  Some text has been copied from the Planner and  Local Government Lawyer

Appeal decisions

An inspector has dismissed appeals for two homes in Shipdham, Norfolk, after ruling that wastewater from the dwellings could pollute nearby habitat sites. APP/F2605/W/21/3271209

The appellant sought outline permission to build a two-storey, two-bedroom detached house (appeal A) and full permission for a three-bedroom house (appeal B).  Breckland Council had opposed the development, citing as concerns the impact on habitat sites, harm to the area’s appearance, highway safety and unsuitable living conditions. 

Inspector M Woodward observed that the nearby River Wensum Special Area of Conservation, which was included in Natural England advice about the effects of nutrient pollution from wastewater on habitat sites. The residential nature of the proposals would mean that they would generate waste water. The appellant indicated that the houses would be connected to the mains sewer, but Woodward was concerned that it could not be demonstrated that the waste water would not enter a sensitive site, after undergoing effluent treatment.

No specific amount of phosphorus produced by the proposals was calculated, meaning that the inspector was not satisfied that the development would achieve nutrient neutrality. The appellant did not propose any mitigation, leaving the inspector unable to deduce that the development would not affect nutrient levels in nearby habitat sites.

The inspector had dismissed the issues surrounding highway safety, impact on the surrounding area, and living conditions. However, the concerns about nutrient pollution in habitat sites had not been resolved, which he felt outweighed the other settled issues. The appeals were both dismissed.

An inspector has refused permission for two bungalows in Blackfield, in New Forest District after the appellant failed to agree to conditions limiting the impact of the development on nearby nutrient-sensitive sites. Ref APP/B1740/W/21/3284016 

The council had opposed the proposals, citing the development’s proximity to European sites, impact on local character and appearance, and the living conditions of neighbouring residents as issues. 

The Inspector addressed the development’s impact on European sites including the Solent and Southampton Water SPA and Ramsar sites, Solent and Isle of Wight Lagoons SAC, and Solent Maritime SAC (the nutrient-sensitive sites). Webb noted that the issue of nutrients had not been addressed, with no mitigation measures proposed to totally eliminate the production of wastewater. 

The council had suggested that a negatively worded ‘Grampian’ style condition could be imposed, which would limit development beginning until an appropriate obligation is agreed. However, the inspector judged that a Grampian condition would be inappropriate in this case, as Webb had “no clear indication of what form mitigation would take”. Webb concluded that as measures to secure nutrient neutrality had not been secured, there could be no guarantee that the nutrient-sensitive sites would not be harmed. 

Furthermore, Webb observed that measures to mitigate the impact of the development on European sites in terms of recreation had not been finalised. A Unilateral Undertaking providing financial contributions toward natural green spaces had been signed but not completed, and Webb concluded that this meant the matter had not been properly addressed. 

Despite concluding that the proposal would not harm living conditions, or the local area’s appearance, Webb felt that the potential impact on the nutrient-sensitive sites was unacceptable. Both appeals were dismissed.

The refusal of permission for these two relatively minor developments that would have an undetectable impact on the local water environment, with no other planning objections show just how sensitive the issue of nutrient pollution has become.  

In response, a group of developers has appointed a leading planning and environmental barrister to advise on how to respond to a ruling by Natural England (NE) that threatens to stop house building in parts of West Sussex.  The dispute concerns the impact of water extraction to serve new homes on the habitat of a rare type of snail.

Last year NE said that excess abstraction of water in parts of the Chichester, Crawley and Horsham districts endangered the ramshorn snail and any new developments would have to demonstrate ‘neutrality’ - that they did not increase demand for water.  This is often achieved by measures such as installing showers rather than baths and ‘greywater’ recycling systems, both of which are viewed by housebuilders as unpopular with potential buyers.  The issue has seen councils prevented by NE from allowing new building in the areas affected but without any relief from central government over the number of new homes they are expected to achieve.

Marcel Hoad, managing director of Fowlers Estate Agents, which leads the Houses for Homes group, said the impact of NE’s move on members was “extremely arduous – in short time we believe without development coming forward then jobs and livelihoods will be effected and of course the growing issue is the extreme shortfall of housing numbers in the area caused by the moratorium on planning – in turn this leads to less supply, increased demand and higher prices for the public”.

Jonathan Clay of Cornerstone Barristers has suggested more water could be pumped to the area from Portsmouth so preventing the snail habitat from drying out.  He also proposed new infrastructure to pump freshwater upstream to the area from a weir.  The three councils have not yet sought to take any legal action believing they have no route for redress against NE.

A Horsham spokesperson said: "It is a legal requirement that the emerging local plan demonstrates that it is water neutral.  Work is ongoing to develop a mitigation strategy for the local plans in the north west Sussex area. This is a highly complex piece of work and is being carried out in partnership, working with the other affected local authorities and with input from Natural England, the Environment Agency and Southern Water.”

Horsham said any solution might limit the amount of development that can take place, in which case it would be unable to meet housing targets set by national government.   Planning applications continue to be determined and some developments have been permitted where water neutrality has been conclusively demonstrated, but “this is a very high bar”.

Concerns have been expressed that, if water neutrality demands spread, they could lead to local plans being disrupted, since development would become concentrated in those parts of local authority areas unaffected by NE’s rulings, even if these were not designated for development in plans.

Growing fears over river pollution in the UK led the Environmental Audit Committee (EAC) to warn in January that a “chemical cocktail of sewage, agricultural waste and plastic” was impacting our rivers. A salient impact of this pollution is that it has stalled proposals for homebuilding in many areas across the UK, including Hampshire, Norfolk, Herefordshire, Powys and Somerset.

In March, Natural England advised another 42 local authorities that development in some catchments cannot go ahead unless they are nutrient neutral – meaning an estimated 120,000 homes are now being delayed across 74 local authorities because of the issue, according to the Home Builders Federation. Nutrient pollution in the River Solent has led to Somerset (which has around 11,000 homes delayed in a backlog), Hampshire (around 16,000) and Kent all since being placed under planning restrictions.

Recent analysis by the Local Government Association (LGA) suggests that more than 7 per cent of all housing planned in England (20,000 units) cannot go ahead because of the level of pollution in rivers and because of low water levels. Most pollution in rivers is already caused by agriculture and water companies and will not be cured by refusing new housing. 23 councils have more than 90 per cent of likely housebuilding areas affected by the law and nearly a third of new building in the whole of the north-east of England.  The LGA warns that this could reach 100,000 homes in the coming years as there are “few quick fixes” available.   Some have put in place nature-based schemes in an attempt to offset the environmental impact of new housing so that developments can go ahead.

Pollution needs to be dealt with at source, which predominantly originates from water treatment and farming.

Push back

Government ministers are very concerned about the impact of these restrictions on housebuilding (not the ones and twos, but the thousands being allocated in these districts) and have rejected recommendation from Environmental Audit Committee to tighten standards on pollution. The Government had previously rejected amendments to the Environment Bill that would have prevented sewage discharges to rivers.

Meanwhile the NFU are coordinating efforts to resist designations of nitrogen vulnerable zones where planning permissions are being refused on grounds of water pollution.

Summary

It is completely unclear how this issue will be resolved. The planners are grappling with the need to prepare and adopt local plans that will be found to be ‘unsound’ by inspectors if there is a conflict with NE advice.  These plans will affect the allocation of larger sites and include policies affecting smaller scale applications. Local plans will have a very strong influence over the determination of planning applications and Government wants to shorten the timetable for their preparation.

Inspectors are involved in the examination of the local plans and the determination of appeals. The advice of NE is likely to be given a lot of weight, particularly as there is a legitimate expectation that the planning system will operate in a consistent fashion on such a clearly defined issue in similar circumstances.