Member Article

The High Court has ruled on water neutrality – an issue impacting the determination of planning applications across West Sussex and beyond - for the first time.

Hot on the heels of ‘nutrient neutrality’ issues and grounded in similar case law, Natural England (NE) raised concerns about groundwater abstraction in the Sussex North Water Supply Zone impacting the integrity of internationally protected sites including the Arun Valley Special Protection Area and Special Area of Conservation in September 2021.

NE cannot rule out that the removal of water from the Supply Zone is contributing to the decline in wildlife, including wintering birds, rare snail species, and peatland in Arun Valley.

To combat the potential issue, NE advised impacted local planning authorities that proposals for development in the Supply Zone that would lead to an increase in water demand - virtually all major development including residential, office, commercial and educational uses supplied by public water - need to demonstrate how they will achieve no net increase in water consumption or water neutrality.

Applying Regulation 63 of the Conservation of Habitats and Species Regulations 2017 (Habitats Regulations), affected local planning authorities can only grant planning permission after having ascertained that the proposals will not adversely affect the integrity of the protected sites.

NE has confirmed that existing uses covered by planning permissions existing prior to NE issuing its advice in September 2021 fall outside of the scope of its advice.

In Ward v Secretary of State for Housing, Communities and Local Government [2024] EWHC 1780 (Admin), the claimants appealed against the decision of a planning inspector to dismiss their appeal against Horsham District Council’s (HDC) refusal to grant planning permission for a residential unit and stable block on agricultural land.

HDC refused planning permission and the claimants appealed in 2019 prior to NE raising concerns about water neutrality. An appeal hearing was scheduled for June 2020, but was postponed due to the Covid-19 pandemic, eventually taking place in 2022: after NE issued its water neutrality advice.

In December 2020, the claimants moved onto the application site due to personal circumstances exacerbated by the pandemic. The Inspector issued his decision in May 2023 following delays associated with sequential submissions taking place after the hearing addressing the water neutrality issue.

Despite the claimants applying for permission and using the application site for the proposed use before NE issued its advice, the Inspector concluded that he needed to take water neutrality into account in his decision in accordance with the Habitats Regulations.

HDC argued that despite occupation in December 2020, the application site had nil water use and the implementation of the planning permission would have a negative impact on water neutrality. The claimants stated that prior to the date that the planning permission would be granted, the total water usage at the site was 85.5 litres per day and would remain the same following implementation of the permission, maintaining water neutrality.

The Inspector determined that, as the development did not have planning permission for residential use and said use was not immune from enforcement action when NE issued its advice, the residential use was not an existing use. Therefore, a nil water use should be applied and the proposals would not be water neutral.

The High Court agreed with the Inspector’s approach, concluding that it was consistent with NE’s guidance and represented a lawful approach to his duties under the Habitats Regulations.

The case highlights and reinforces the issue of water neutrality, which is posing another obstacle to development in the south of England and has the potential to become a wider issue. NE is currently working with Defra to confirm whether there are other areas in the country that might have water neutrality issues and the previous Government was working with the Environment Agency and the Greater Cambridge Shared Planning Service on measures to increase water supply in the Greater Cambridge Area.

Following the recent Court of Appeal judgment in C.G.Fry & Son Ltd v SSLUHC [2024] EWCA Civ 730, even existing permissions may not be immune from water neutrality with the Court concluding that an appropriate assessment pursuant to the Habitats Regulations may have to be carried out at a subsequent approval stage, such as the discharge of condition or in reserved matters approvals.

NE advises that the matter should be resolved in partnership through local plans across the impacted authorities, where policy and assessment can be agreed and secured to ensure water use is offset for all new developments.

In the interim, NE advises that only critical applications should proceed and only where they can demonstrate water neutrality can be achieved by minimising the water use of the new development and offsetting existing water use.

Developments can minimise water use by implementing measures like recycling grey water, including wastewater from showers and sinks, harvesting rainwater and installing water efficient fixings like shower aerators. Offsets can be achieved by retrofitting existing properties with similar measures. Any measures need to be secured for the lifetime of the development whether via planning condition or planning obligations in a S106 Agreement.

Shoosmiths continues to advise clients on nutrient neutrality issues, having done so since its emergence, and provides ongoing advice to clients impacted by water neutrality issues.

 

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