PLANNING LAW

Seeking neutrality (of water use, nutrients and activity!)

Natural England may be developing a reputation as a thorn in the housebuilder’s side as a moratorium on residential development was announced across a number of local councils in the Home Counties this week. The balance between the aspirations (and indeed Government targets) of building much needed housing and protecting the environment has, therefore been brought into sharp focus once again.

Natural England, which is responsible for protecting and improving England’s natural environment, published a letter to a number of local planning authorities in the Home Counties and the National Trust, warning of the threat of unlawful damage to the Chilterns Beechwoods Special Area of Conservation (SAC), caused by an increase in recreational pressures on the site which may be exacerbated by increased residential development.

The letter has prompted a moratorium on housebuilding by certain authorities in the area. The moratorium has been deemed necessary to ensure that no unlawful damage can be done to the SAC, an area afforded the highest level of protection under the Conservation of Habitats and Species Regulations 2017. As the Natural England letter sets out, the Beechwoods are “an accessible and attractive honeypot of regional significance for recreation”. The concern is that increased residential development will result in increased pressure from people using the site for recreation.

There are approximately 630 Special Areas of Conservation in the UK, making up a network of important, high quality conservation sites which make a significant contribution to conserving the habitats and species in most need of conservation, as identified in the European Habitats Directive.

The home counties moratorium follows on from a similar – and ongoing – pause to development in certain areas of Sussex and Surrey after Natural England raised concerns about damage being done to the Arun Valley SAC by increased water extraction. Local authorities are now required to assess the water neutrality of a development before approval can be granted.

Development in the Solent Region has also come under Natural England’s scrutiny, where the demonstration of nutrient neutral development has become a requirement of planning applications in order to prevent eutrophication – the reduction of the oxygen content of water – in the Solent Maritime SAC. Natural England’s advice came under judicial scrutiny last year in the case of R(Wyatt) v Fareham Borough Council but was judged by the High Court to be “impeccable in all material respects”.

Where a Special Area of Conservation is deemed to be in danger of degradation, the Habitats Regulations set a very high bar to ensure that development is not unlawful. Any application must undergo an Appropriate Assessment by the relevant planning authority, in which it must be determined that the development wouldn’t harm the SAC – either alone, or in combination with all other planning applications in the relevant area.

In terms of the Chiltern Beechwoods SAC, Natural England states that:

“the effects of new residential development in close proximity to protected sites cannot be avoided through mitigation measures; an appropriate assessment would not be able to conclude no adverse effects on site integrity, meaning the development could not proceed as the requirements of the Habitats Regulations would not be satisfied.”

Breach of the habitats regulations trumps other planning considerations too. In recent decisions by the planning inspectorate concerning water neutrality, Inspectors have been at pains to explain the primacy of conservation, attaching “greatest weight to the policy which seeks to protect international and national protected sites because of the importance of those sites for nature conservation” [HDC] and that “there are no other considerations which alter or outweigh these findings.” [SDNPA]

So, can housebuilding ever resume in these areas? Yes. Local Authorities concerned by Natural England’s findings must – and are beginning to – develop strategic mitigation measures which will become part of the respective Local Plans for those council’s concerned. Mechanisms such as the implementation of Strategic Access Management and Monitoring (SAMM) and Suitable Alternative Natural Greenspace (SANGs) will focus on protecting SPAs from new pressures through managing behaviour and access to the sites and providing alternative areas to alleviate the pressures on existing conservation areas. For developers, this will typically require a financial contribution commensurate with the size of the proposed development, secured by a planning obligation. But for the Arun Valley and the Chiltern Beechwood SACs, these strategies are some way off from being finalised. Until then, planning authorities’ hands are very much tied.

If you are a developer or considering submitting a planning application but are concerned you may be caught out by the pause to development in these areas, contact one of our planning specialist advisors.

Case Study: Overcoming Water Neutrality in Horsham

The Chartered Planning Team at DMH Stallard were advising on a residential redevelopment of the former Smith and Western restaurant site in Horsham for 20 apartments. The planning application was submitted in August 2021. In September 2021, the Position Statement was published by Natural England. Information collected by Natural England shows that water abstraction is having a negative impact on the wildlife sites in the Arun Valley. They have advised that any new development that takes place must not add to this negative impact.

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. However, this is unlikely to be resolved until early 2023.

We submitted a Water Neutrality Statement including previous water usage bills relating to the existing restaurant use of the site. These bills give full data for water usage at the site between October 2018 to January 2020 (i.e. prior to the first Covid lockdown, and also excluding a period during which the restaurant was shut) and show that the daily water consumption was 5,357 litres. Based on the average occupancy of the proposed development and the Building Regulations requirement of 110 litres per person per day required by Local Plan Policy 37, it was projected that daily water usage for the proposed development would amount to 4,070 litres. This represented a daily saving of 1,287 litres per day. The application was screened to ascertain whether the proposed development would result in a significant effect on the Arun Valley Sites.

It is concluded that sufficient evidence had been submitted to demonstrate that the application proposals for 20 apartments would result in development that will consume less water than the existing restaurant use of the site, and as such was considered to be water neutral.

Members of Horsham District Council’s Planning Committee resolved to grant Planning permission at their February meeting.

Peter Rainier, Principal Director of Planning, DMH Stallard

About the authors


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Peter Rainier

Principal Director of Planning

Expert on residential and commercial development planning applications and appeals, advising on commercial waste applications and heritage matters.

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