A recent Inspector’s decision demonstrates that negatively-worded planning conditions are not sure loopholes to avoid Natural England’s nutrient neutrality advice. It needs to be taken with a pinch of salt, though.
The appeal scheme (49 homes) was hydrologically linked to the Teesmouth and Cleveland Coast Special Protection Area and Ramsar site (the “Habitat Sites“) which are in an unfavourable condition due to nutrient concentrations. A nutrient budget demonstrated that the scheme would contribute an additional 169.39 kilograms of total nitrogen per year into the Habitat Sites.
Requirements under the Habitats Regulations
Under the Conservation of Habitats and Species Regulations 2017, a competent authority may only agree to a project after having ascertained that it will not adversely affect the integrity of the national network site; an appropriate assessment is required unless significant effects can be established to be unlikely. A project likely to increase nutrient inputs into the Habitat Sites would likely fail an Appropriate Assessment.
Offsetting Nutrient Impacts
While other watersheds benefit from nutrient trading credit markets or strategic offsetting schemes, no such mitigation measures exist in this scheme’s watershed to offset the Habitat Site. So while the appellant provided some information that nitrate reduction credits may be secured through other national network sites in the area, the options presented were not concrete and sufficiently certain to be secured by legal agreement or planning condition.
The Inspector in this appeal had limited information on what a mitigation solution would look like and was aware that while offsetting solutions were under development, their implementation was estimated to be around 12 to 18 months in the future.
The appellant proposed a negatively-worded condition to limit the commencement or occupation of the scheme until the scheme’s nutrient impact could be mitigated and secured.
The Inspector had regard to an appeal which concerned a scheme which was likely to have significant effect on a national network site through its nutrient impacts (the “2021 Appeal“). The Inspector allowed the 2021 Appeal subject to a negatively-worded condition which prevented the occupation of any dwellings until a mitigation scheme to offset the nutrient impacts on the integrity of a national network site was agreed with the local planning authority. The Inspector however, refused to apply a negative-worded condition. She noted that the Planning Practice Guidance advises that negatively-worded conditions should only be used in exceptional circumstances.
Unlike in the extant case, in the 2021 Appeal:
- there was an absence of a five-year housing supply; and
- the strategic offsetting solutions were imminently anticipated in the watershed.
On the face of it, looking at negatively-worded planning conditions to mitigate nutrient impacts success may hinge on whether there is an absence of a housing supply and how far off nutrient offsetting solutions are in the watershed.
Digging deeper, a pinch of salt is needed. The element of the PPG relied on relates to negative conditions requiring planning obligations or other agreements to be entered into. That may have been what the appeal scheme promoter envisaged, but there is no need for negative conditions to require these. In fact, regulation 75 of the Habitats Regulations already imposes a simple blanket restriction on the use of permitted development (“PD“) rights until the LPA has confirmed no adverse effect on the integrity of any relevant site. If Parliament considers this form of restriction as good enough for PD schemes – and it would not unlawfully defer consideration of Appropriate Assessment at the application stage – should it be good enough for non-PD schemes?
Habitats Regulations assessments will be more common at condition discharge stages (see the Landmark Chambers summary of the Jurston Farm (Wellington) appeal decision) and this issue is likely to arise far more frequently as the extent of certainty offered by the new requirement for water undertakers to install adequate treatment capacity by 2030.