The Solent Nitrates Debacle

Since April 2019 Local Authorities in the Solent Region have stopped granting planning permission for any development which would result in ‘an increase in overnight stays.’ This means no new houses have received planning permission in the south of England for six months!

This is an impending disaster for the region. With impact on housing delivery, investment, confidence and ‘the survival of SME developers’ and, we assume, their supply chains across

including Portsmouth, Fareham, East Hampshire, Winchester, Test Valley and more recently Southampton and New Forest districts.

Why is this happening? The issue stems from concerns about the water quality in the Solent. The Partnership for South Hampshire authorities commissioned an Integrated Water Management Study (IWMS) looking into the effects of planned future development on water quality and water resources. The IWMS noted that the majority of the Solent water bodies had in most cases, less than good ecological status for elements such as dissolved inorganic nitrogen (made up of nitrates, nitrites and ammonium). The IWMS also identified that some Wastewater Treatment Works (WwTW) would reach capacity in the early to mid-2020s and that by this point, action would have to be taken to ensure that these issues are satisfactorily mitigated.

One of the causes of a deterioration in water quality is new developments creating additional wastewater which ultimately discharges into the Solent. The percentage of nitrate coming from residential development varies depending on the location in the Solent but is small (3-18%) in comparison to run-off from agriculture (20-77%) and background levels already in the waterbody (12-67%). If we assume that new development is say 1% of total urban development in the region annually it is unlikely that new housing is contributing more than 0.18% of the problem. Even the authorities themselves acknowledge that at present, the ‘impact on the Solent SPA and SACs from development is uncertain and the effectiveness of any proposed mitigation is unknown’.

You might think this would make this a non-issue to all but the lawyers, but you would be wrong.

The issue all stems from the The Conservation of Habitats and Species Regulations (2017 as amended), hereafter referred to as the Habitats Regulations is the UK’s transposition of the European Union Directive 92/43/EEC Conservation of Natural Habitats and of Wild Fauna and Flora. The Regulations place significant responsibilities on Council’s as the competent authority for the protection of ecology. Regulation 63 requires competent authorities to undertake an ‘Appropriate Assessment’ of the implications of new development before giving it permission, if it is likely to have a significant effect on a European site. If a likely significant effect is predicted, planning permission can only be granted if the competent authority can determine that there will be no adverse effect on the integrity of the site having regard to any proposed mitigation measures. As there are no agreed mitigation measures in place to offset the impact of nitrates no new development can be approved.

To make matters worse, Local Authorities are required to apply the ‘precautionary principle’ in these matters. This means that unless you can categorically rule out the impact of a development you must assume that there will be an impact and refuse the application for planning permission. The result, not unsurprisingly, has been risk adverse authorities being cautious. Since they and the developers can’t disprove the negative they have to assume the worst and refuse every application as a ‘precautionary’ measure. This, as a result, is what has been happening across the South.

To say this is serious is an understatement, but how serious is the issue that is causing this regional freeze on development. Bizarrely the instigators of this situation are unsure.

Natural England, as the statutory body responsible for consulting on the issue of Nitrates have stated in their advice to local planning authorities in the Solent region, that there is 'uncertainty as to whether new growth will further damage designated sites'. Despite this, it is Natural England's advice to local planning authorities and applicants to be 'as precautionary as possible' when addressing uncertainty and calculating nutrient budgets. The consequence of being ‘as precautionary as possible’ has been that real impacts are arising on the development industry as a result of this ‘uncertainty’.

The recommendation from Natural England is for all new development to achieve nitrate neutrality. The challenge is that no one is quite sure how this is achieved. There are currently a host of ideas being dreamed up by local authorities, all of which are yet to be formally adopted as scientifically adequate. These include:

  • Acquiring and retiring agricultural land: This option does not appear practicable unless offered by a developer who also has suitable offset land available. The result is agricultural production declines.
  • Woodland planting: this may increase the efficacy of agricultural land set-aside and reduce the amount of offset land needed.
  • Installation of Waste Water Treatment Works (WWTW) filter wetlands.
  • SUDs and urban drainage: run off from urban areas including open space contributes to Nitrate loads, as well as waste water treatment discharge. Where SUDs are appropriate and can be designed to receive urban and other run off before discharging to drains, there may be some scope to trap Nitrate in on-site mini wetlands or silt traps.
  • ENtrade: this is an environmental trading platform run by Wessex Water but open for use in other areas. Landowners or other relevant parties can submit bid proposals to deliver defined objectives such as Nitrate reduction. This approach is best considered as creating temporary headroom.
  • Water efficiency measures in existing Council housing stock: As the wastewater treatment works operate on a permissible amount of nitrogen per litre of water, reducing the number of litres discharged from the works also reduces the amount of nitrogen going into the Solent. Installing water efficiency measures in existing housing stock, such as Council owned housing stock, could provide enough reductions in water use to offset some new development. Developer contributions would be used to fund the provision and installation of water efficiency kits. This would also benefit tenants. It also sounds like a clever way of getting the private sector to pay for public sector housing improvements!
  • Review of use and quality of fertilizers on council land.

These measures will potentially cost between £2500-7500/dwelling. It is unclear that this cost is viable for developers on top of existing s106 contributions.

What is being done? After a long hiatus where nothing was approved an emerging interim approach has been adopted by authorities. This involves issuing approvals with Grampion Conditions in order to buy time while mitigation methods are agreed. In both instances the risk and the cost are being passed on to developers. The housing industry is picking up the tab for half a century of unsustainable farming practices, under investment by the water companies in Waste Water Treatment and the impact of an increasingly overcrowded south. The construction industry is being thrown under the bus because central government have been so busy with other things that they have neglected to deal with an issue that has been emerging for decades. (BREXIT) It is good to see PfSH authorities are now collaborating and lobbying central government. It may sadly be too late for many SME’s. It is certainly too late for the many thousands of people waiting for new homes that are currently not being built, adding to an already acute housing shortage.