Post-planning permission habitats assessment requirements clarified

Out-Law News | 03 Aug 2022 | 8:45 am | 3 min. read

Developers in England can be required to carry out a Habitats Regulations Assessment (HRA) post-planning permission in certain circumstances, even if not required to do so at outline permission stage, the government has confirmed.

Planning law expert Jamie Lockerbie of Pinsent Masons said that the confirmation would clear up doubt in the industry as to whether local planning authorities (LPAs) could lawfully require an HRA to be undertaken at reserved matters stage, including reserved matters approvals (RMAs) and discharges of conditions.

“This will be of particular importance to development schemes that are affected by water nutrient neutrality requirements,” he said.

“Absent a successful challenge to this position, or future legislative change, developers who are now faced with the requirement to undertake a new or updated HRA at the RMA stage will need to do so. This process may result in the requirement to provide additional mitigation that wasn’t secured at the outline stage in order to prevent harm to the integrity of a relevant protected water body,” he said.

The confirmation came in the form of a written ministerial statement issued by environment secretary George Eustice towards the end of last month.

Portrait of Jamie Lockerbie

Jamie Lockerbie

Partner

Ultimately this is the position we are in now. If a development scheme is being blocked by nutrient neutrality requirements the developer will need to commit to mitigation measures to demonstrate its deliverability

Freshwater habitats can become polluted by nutrients, particularly nitrogen and phosphorus, where the use of the land that drains into the body of water adds to its natural level of nutrients. Examples of land uses that can be particularly problematic for this include certain agricultural activities and wastewater drainage from overnight accommodation. Where high levels of nutrients enter freshwater they can cause algal blooms, starving the water of oxygen with resultant harm to natural life.

Natural England, in its statutory role as an adviser on the natural environment, has issued advice to 74 LPAs in England on the nutrient impacts of new plans and projects on protected sites where those protected sites are in unfavourable condition due to excess nutrients, according to the government. This has resulted in many areas facing blanket bans on the grant of planning permission or the grant of reserved matters approval until the LPA is satisfied that measures can be put in place to prevent harm to the integrity of the relevant protected water bodies.

The government has now sought to clarify the position by making it clear in the statement that a HRA can be required at the RMA stage in two scenarios. The first is where environmental circumstances have materially changed as a matter of fact and degree so that development that previously was lawfully screened out at the permission stage cannot now be screened out, including where nutrient load or the conservation status of habitat site is now unfavourable. The second is where development that previously was lawfully screened in but judged to pass an ‘appropriate assessment’ cannot now do so because the mitigation secured, if any, is not adequate to enable the competent authority to be convinced of no adverse effect on integrity of the habitats site.

In his statement, the environment secretary acknowledged the problems this will cause to housing delivery in certain parts of the country. This can occur when a scheme that is included in an LPA’s five year housing land supply calculation gets thrown into doubt due to nutrient neutrality considerations. According to the statement, the Department for Levelling Up, Housing and Communities will revise planning guidance over the summer to reflect that sites affected by nutrient pollution forming part of housing land supply calculations are capable of being considered deliverable for the purposes of housing land supply calculations, subject to relevant evidence to demonstrate deliverability. It will be for decision takers to make judgements about impacts on delivery timescales for individual schemes in line with the National Planning Policy Framework.

“Ultimately this is the position we are in now,” said Lockerbie. “If a development scheme is being blocked by nutrient neutrality requirements the developer will need to commit to mitigation measures to demonstrate its deliverability. This could include onsite works, e.g. the provision of areas to store and remove nutrients from wastewater before it is released to the catchment area; or offsite works e.g. removing agricultural land from active use so as to create a ‘nutrient credit’; or the purchase of credits if a credit scheme is available.”

To aid the delivery of schemes currently blocked, Eustace said he would issue a ministerial direction to support Natural England to establish a nutrient mitigation scheme. This will ‘front load’ investment in mitigation projects such as wetland and woodland creation, with developers able to purchase ‘nutrient credits’ to discharge their mitigation requirements. Further details will be made available in the autumn when the scheme will launch, according to the statement.