Nitrate Pollution Moritoriums – Makes the Case why only the State can Plan Strategically

10,000 homes in South Hampshire put under moratorium.

Fareham cancels its Planning Committee

South Hampshire News

HOUSEBUILDING has stopped in Hampshire as local authorities seek legal advice on how to obey environmental advice from government – a move that has been branded a shambles by a senior councillor.

Government department Natural England has released a recommendation that all new-build homes have to meet strict environmental rules over nitrate levels. This, they say, is because high levels of nitrogen pollution are affecting protected sites in the Solent area and new housing contributes additional nitrogen to the water.

But developers say the target of being ‘nitrate-neutral’ is impossible to meet as nitrates are in drinking and waste water – and local authorities have stopped issuing planning permission while they seek clarity.

And councils still face having to hit government housebuilding targets,

One of the councils affected, Fareham Borough Council, has even cancelled its next planning meeting.

Leader of Fareham Borough Council Sean Woodward said: ‘It is a shambles. Government has set us the highest ever housing target, but with another hand they have stopped us being able to issue any permission. The whole system is wrecked. It is a huge issue and it has stopped the planning process in its tracks.’

Other councils across the area have also been affected, including Havant Borough Council which held emergency talks with Natural England on Tuesday to see if a solution could be found, and Portsmouth City Council.

 

For those who have followed European Caselaw

Turleys

Whilst some flexibility is afforded to applicants (C-461/17 Holohan v An Bord Pleanala) where the competent authority is certain that planning conditions are strict enough to guarantee no adverse effect to the integrity of an international ecological site, it is still incumbent upon applicants to ensure that mitigation measures guarantee ‘beyond all reasonable doubt that a project will not affect the integrity of an (protected) area’ (C-164/17 Grace and Sweetman v An Bord Pleanala). In the context of the European Court of Justice (ECJ) rulings, it is questionable whether the indirect measures proposed can in fact be regarded as mitigation

This is no surprise, in South Hants the issues are particularly sharp because of chalk streams running into a very sensitive estuary.  There is a water quality strategy but implementing it through planning consents is particularly tricky for individual developers where mitigation involves third party land.

Portsmouth

Following the CJEU ruling, Natural England (NE), the government’s adviser for the natural environment, advises that, under the requirements of the Habitat Regulations, the existing uncertainty about the deterioration of the water environment must be appropriately addressed in order for the assessment of a proposal to be legally compliant. They recommend that this is addressed by securing suitable mitigation measures to ensure that proposals achieve ‘nitrate neutrality’. It is recognised that it would be difficult for small developments or sites on brownfield land (which form the majority of applications in Portsmouth) to be nitrate neutral.
NE has therefore advised a neighbouring planning authority that ‘planning
permission[s] should not be granted at this stage’4 whilst the uncertainty around this issue means that a comprehensive assessment of the impacts of a proposal cannot be satisfactorily carried out and while an interim strategic solution is being developed for the sub-region.

Officers sought advice from Queen’s Counsel on the matter, which confirmed the validity of Natural England’s position (as of 05.05.19). As per the legal advice received, and in the absence of any pre-existing mitigation strategy, the City Council has temporarily ceased granting planning consent for additional dwellings (or an intensification of dwellings), tourism related development and development likely to generate an overnight stay at this time. Such applications can still be considered on an individual basis if they are able to demonstrate that
the development would be ‘nitrate neutral’….

In the short term the Council would be susceptible either to challenges by developers for refusal or for non-determination, or by persons concerned about the environmental implications of a potentially inadequate Appropriate Assessment (under the Habitat Regulations).

I can remember on particularly sweary outburst by a head of planning (not in Hampshire) when told that natural England could not be ignored in terms of there request for S106 mitigation to harm to an SPA, and that this could lead to a moratorium if ignoring’ NE can take a flying f***’ followed by dozens of other f words.

Of course we have been here before of course with SANGS, RAMs etc. (south Essex is the next area to feel this pinch)   only the difficulties are particularly difficult here as off site mitigation is so hard and may involve complete replacement of Sewage treatment facilities.  Natural England is pragmatic on the scale of scheme with schemes of below 50 u nits able to mitigate through a straight S106., however this requires cross border policies and implementation plans to fund.

When you change the land use you disturb the soil, this releases nitrogen, however this may be less than the long term release from fertilisers on agricultural land.  Those who have it easiest then are mass housebuilders able to show no net harm through simple spreadsheets and where sites are large enough to build in mitigation.  This aint so for smaller housebuilders and those on small infill sites.  Here the Southampton system works well where they employ an ecologist to set out mitigation so every developer doesn’t have to reinvent the scientific reports.

Ultimately there is a simple technological solution.  Ban high nitrate fertilizers in sensitive areas and replace them with a regional series of anorobic digestion plant recycling farm wastes and nitrogen neutral farm wastes.

What this illustrates is that the scope of English planning and the level of local government it operates at is inadequate to deal with complex issues of land use spanning across watersheds of European sites.  What is needed is a flexible enabling sustainable land use management act enabling the SoS for Environment to implement such controls and measures where necessary to meet the directives.