In September this year, Natural England warned councils in Somerset that planning applications for housing, agricultural and energy projects should only be approved if it can be shown they will not lead to a rise in phosphate levels at the Somerset Levels and Moors. Earlier this month, Somerset authorities issued guidance to developers and their agents advising they would be following said guidance accordingly.
The Somerset Levels and Moors are ‘Special Protected Areas’ (SPAs) under the Ramsar Convention and have been suffering from excessive phosphate levels in recent years, mainly from new overnight accommodation (most commonly housing) and farming practices involving phosphate leaching. In adding phosphates to the watercourses draining to the SPAs, such development causes eutrophication, a phenomenon involving excessive algae growth which in turn damages natural habitats. New houses add to this problem as waste water arising from everyday activities almost inevitably contains phosphorous.
The announcement threatens to severely delay and/or increase mitigation costs for all current and forthcoming applications for these types of development within the catchment of the protected Somerset Levels and Moors sites. This is a huge 6,000+ hectare area, taking in significant growth areas including Taunton, Bridgwater, Wells, Glastonbury and Yeovil.
Recent European case law (commonly referred to as ‘the Dutch case’) has determined that such applications, even if they are for as little as one new dwelling, will be subject to a Habitats Regulations Assessment (HRA) ‘appropriate assessment’ to determine the likely impact on the SPAs. Applicants will need to demonstrate their proposals are ‘nutrient neutral’ – ie. they will not lead to an increase in levels of nutrients such as nitrates and phosphates.
On some occasions, proposals will already be ‘nutrient neutral’ against the existing land use. This can be the case where, for instance, there will be no net increase in overnight population in the catchment (eg. there is an existing equivalent of housing to be demolished and replaced), or on greenfield sites where existing agricultural practices have high phosphate usage.
In cases where nutrient neutrality is not achievable by default, applicants will need to find ways of mitigating impacts. Typically there are two means of doing so:
- Making financial contributions to water treatment facilities (or new nature reserves) that filter out phosphates from waste water. This will usually involve the local authority (or third party) already having the construction of such infrastructure in planning or underway, which is often not the case. These are to be secured by Section 106 agreements.
- Controlling land elsewhere in the catchment which can be made subject to legal covenants requiring it to be managed or landscaped in a way that reduces nutrient impacts.
These methods are not exhaustive and applicants may have other means of achieving nutrient neutrality.
The guidance raises the prospect of planning delays as local authorities and applicants grapple with how to ensure nutrient neutrality.
This has only recently arisen on the Levels and experience from elsewhere shows it is likely to take some while to agree mitigation solutions. Local authorities in the Solent and the West Midlands have recently had to put on hold determining planning applications for thousands of homes after Natural England issued similar warnings about levels of nitrates and phosphates at protected sites. In these regions, consortiums of housebuilders have been working with local authorities and lobbying central government to devise mitigation methods and standardised contributions schemes. Of the authorities in the Solent which have implemented ‘fixed payment’ solutions, costs vary significantly, from £800 to £4,500 per dwelling. This piecemeal approach is coming under significant criticism and consortiums are calling for a ‘Solent Wide’ system to be put in place.
Last month, the government announced a ‘nitrate trading’ pilot scheme for the Solent region, which involves developers buying credits to turn mainly farming land that produces harmful nitrates into eco-friendly habitats which can also double up as public open space. This, of course, comes with costs and complexity for applicants, while there are also concerns about insufficient land to meet demand. The costs of buying the credits could also take financial contributions away from other local commitments that a housebuilder might make.
It is likely that the precedents set within the Solent authorities will eventually be rolled out to the Somerset authorities. However, the time needed to set up and coordinate a way forward is likely to cause delays in housing delivery and impact on local authority five-year supply positions.
If you have a site or development plans in Somerset which may be affected by the guidance, feel free to contact a member of Nash Partnership’s planning team for advice.