Earlier this month, the Partnership of Urban South Hampshire (PUSH), a group of ten local authorities, announced that it was suspending issuing planning permissions for new homes following advice from government agency Natural England. The advice states that, under European Union Habitat Regulation Assessment (HRA) rules, any housing scheme that could impact on a protected site must avoid having a negative impact on water supplies. To be legally compliant, such proposals must provide suitable mitigation measures to ensure they achieve "nitrate neutrality".
A Natural England spokesman said its legal advice follows two European court judgments that tightened up the rules around complying with the HRA process: the April 2018 People Over Wind judgment in the Irish republic and a case last November in the Netherlands, which concerned the environmental impact of nitrates from new schemes.
The local authorities in south Hampshire have been working with Natural England for the last few years to identify ways to manage nitrate discharge levels in the Solent area, mainly from agriculture, with the major housing development planned there, said Sean Woodward, leader of Fareham Council and PUSH chairman. According to the Integrated Water Management Strategy prepared by PUSH, high levels of nitrogen from housing and agricultural sources was causing the excessive growth of green algae, which is having a detrimental effect on habitats and bird species.
The combination of a high number of environmentally-sensitive sites and water areas subject to the EU’s Habitat Directive, the extent of farming and the scale of housing development proposed makes nitrate discharge a pressing issue for the area, said David West, associate ecologist at consultants WYG. "This combination is quite unusual," he said, suggesting that Natural England’s new advice would mainly affect planning applications along the south coast from Chichester to Poole. He added that the situation is unlikely to spread to other parts of the country, because of the unusual circumstances found in the Solent area.
"The advice means Natural England is objecting to housing planning applications which don’t demonstrate beyond reasonable doubt that they will not have any impact on the levels of nitrate discharge," said Keith Oliver, principal planner at Portsmouth-based consultancy Town Planning Experts. Natural England has produced new methodology to assess the levels of discharge, he said, but achieving nitrate-neutral development will be extremely difficult.
According to Woodward, planning applications for around 10,000 homes are affected at the moment. "Discussions are ongoing with Natural England and DEFRA but there is not a clear solution to addressing their concerns so we can’t say when we will start considering applications again," he said.
Woodward said the PUSH authorities are "wary" about overriding Natural England’s objections. "Portsmouth Council has a legal opinion, which suggests that it could lay itself open to judicial challenge if it ignores Natural England," he said. The councils are also under pressure to meet housebuilding targets under the government's new housing delivery test, said Woodward. PUSH has asked the Ministry of Housing, Communities and Local Government (MHCLG) to suspend the targets until the nitrates issue is resolved, he added.
Paul Seddon president of local authority body the Planning Officers Society said it is "urging MHCLG to find a way forward as a matter of urgency, which achieves the balance between the necessity to deliver the much-needed new homes and protect the integrity of important European sites". The MHCLG did not respond to a request for a comment.
Oliver said he was involved in seven schemes that are stuck. "These schemes are mainly not more than two or three homes, but the applicants are still being asked to demonstrate that they are nitrate-neutral," he said. Matthew Pickup, director of Portsmouth-based consultancy, Pickup Town Planning said there are many schemes on hold waiting to see how the nitrates issue is resolved. He pointed to the 49-home Crewsaver scheme in Gosport which is located within both a site of special scientific interest and a special protection area. "The developer has planning permission for 31 homes but wants to increase it to 49," he said.
"Some of the schemes held up are close to starting on site," said Jeremy Gardiner, head of WYG’s Southampton office. He highlighted a 108-home scheme for the Drayton Dairy depot site in Portsmouth which is at detailed design stage. "The developers are putting the funds in place and planning to start on site, but can’t get the final details agreed," he said.
"There are ways to manage the discharge of nitrates which the councils could consider," suggested James Riley, associate director at consultancy AECOM. "The provision of more greenspace and the use of swales and urban drainage systems can help. Councils could also work more closely with farmers and the water companies to reduce their nitrate discharges."