The Secretary of State weighs in on Water Neutrality: The Kilnwood Vale Decision
On Friday 25 October, the Secretary of State published a recovered appeal decision for Kilnwood Vale.
The Appeal relates to a reserved matters approval for 280 dwellings in Horsham. The reserved matters approval is for a sub-phase of a much larger development, which has stalled due to water neutrality requirements.
The Appeal decision is noteworthy because it is the first time* that the Secretary of State has had to grapple with this thorniest of thorny issues.
Before we get to the decision itself, a quick recap**:
- Horsham, Crawley and parts of Chichester all fall within Southern Water’s Sussex North Water Resource Zone
- The water abstraction source for this area is close to several protected habitats, including the Arun Valley SPA, SAC, and Ramsar site; and the Pulborough Brooks and Amberley Wild Brooks SSSI.
- In September 2021, Natural England published a Position Statement stating that it cannot , with certainty, conclude that Southern Water's abstraction in this area was not having an adverse effect on the integrity of these protected habitats.
- As a result, whilst Natural England advocated a strategic approach to the problem, in the meantime, it recommended that all new developments in the area demonstrate water neutrality before consent be granted.
- In February 2022 this position was reconfirmed, and expanded on, in a formal advice note from Natural England.
The result of all of this being that, in order to comply with the Habitat Regulations, any new development that gets its water from Southern Water’s Sussex North Water Resource Zone has to demonstrate, before it can be granted consent, that the level of water use on the site after development has taken place will be the same as it was before the development occurred. As you can probably imagine, this is not easy to do….
To date, permissions granted in this area have either been granted because they have secured bespoke off-setting measures (such as upgrading water fixtures on water intensive developments off-site, revoking abstraction licences, or installing rain water harvesting measures on cattle sheds) or have been subject to grampian conditions preventing occupation until water neutrality is secured, or both.
So…. back to the appeal decision…
The crux of the argument before the Inspector can be summarised as follows:
- The Council held that the appeal could only be granted with the imposition of a Grampian condition on the Reserved Matters Approval to
ensure that the proposal is water neutral. The condition being necessary to reach a favourable appropriate assessment under Regulation 63 of the Habitats
Regulations. - The Appellants held that a Grampian condition would fail the test of necessity as there is no need for the development to demonstrate water neutrality to conclude a favourable appropriate assessment.
In reaching a decision on this question, the Inspector's report takes us on a wild, wonderful, ride through all things water related…. So buckle up… we are about to enter the splash zone….
I am only referring to the Inspector's report from here on out. This is for no other reason than a) the Secretary of State agrees with him when making the decision; and b) that is where all the detail is….
At the risk of giving away spoilers, the ultimate decision was to grant the reserved matters approval subject to a Grampian condition securing water neutrality. This was held to be the only way to reach a favourable appropriate assessment under Regulation 63 of the Habitats Regulations.
In short, the status quo has been maintained, but in a manner which provides some helpful guidance about the issue and how it can be dealt with.
Some of key questions*! that the Inspector dealt with are set out below in bold. The relevant paragraphs setting out his conclusions follow immediately underneath.
To what extent can you rely on other regulatory regimes when conducting an appropriate assessment?
" 10.41 The Appellant’s case relies at least partially on performance of action by the Environment Agency, Southern Water, and others under regulatory regimes and functions beyond planning. This raises a question about the degree to which such regimes/functions can be relied upon as mitigation/avoidance measures to conclude that the proposal will not adversely affect the integrity of the Arun Valley Sites. The main regimes/functions in this case can be summarised as –
- Powers of the Environment Agency to grant, revoke, and amend water abstraction licences under the Water Resources Act 1991.
- Duties on Southern Water to supply potable water and prepare and maintain a WRMP under the Water Industries Act 1991.
10.42 In line with the well-established principle in planning decision making, the Secretary of State can assume that other regulatory regimes will operate effectively and, therefore, it is not necessary to duplicate them. The subject matter of Paragraph 194 of the Framework (ground conditions and pollution) is not relevant to this case. However, the policy principle aligns with long understood general practice across the planning system. The caselaw referred to by the Appellant supports this approach
10.43 Planning Practice Guidance63 says that planning for the necessary water supply would normally be addressed through strategic policies. Water supply resulting from planned growth can then be reflected in the WRMPs produced by water companies. This points towards a co-dependence between the town and water planning regimes, with local plans identifying planned growth and water companies planning for supply based on it. It also reflects the principle that water supply should not normally be a general consideration in development management decision making"
10.44 In Horsham there is no dispute that Kilnwood Vale is ‘planned growth’ and that the WRMP 2019 was published in full knowledge of it [7.18], albeit ahead of the NE Position Statement. In this case, water supply is being considered only in the very specific legislative context of the Habitats Regulations. It cannot, therefore, fairly be described as a general consideration that may conflict with the principles set out in Planning Practice Guidance [7.24, 8.13]. In any event, the guidance does not overrule the legislative requirement.
10.45 In my view, in assessing the appropriateness of mitigation/avoidance measures, the Secretary of State is entitled to assume that other regulatory regimes will operate effectively. This does not, however, disapply the need to satisfy the test of certainty to accord with the duty under Regulation 63(5) of the Habitats Regulations. It is not sufficient to simply assume that the problem will be dealt with by others without a proper examination of practical and scientific certainty, including adopting the precautionary approach where necessary. Doing otherwise risks delegating responsibility to others and leaving gaps in coverage of protection for the Arun Valley Sites, contrary to the wider purpose of the Regulations (and, by extension, the Habitats Directives)"
What is the role and relevance of Water Resource Management Plans when conducting an appropriate assessment?
"10.58 For information, an uncontested description of the preparation and function of WRMPs is described in the proof of evidence of the Appellant’s water supply witness69 . The overarching objective of the WRMP is to look ahead over 25 years and describe how the water company aims to secure a sustainable supply/demand balance. The Government’s Water Resources Planning Guideline [CD8 1.08] assists companies with preparing WRMPs and, at paragraph 6.3, says that water demand growth projections should be based on those in local plans and the resulting supply must not constrain planned growth [7.17,7.18] .
10.59 When the final version is published, the WRMP 2024 would be a statutory plan70 and must, therefore, be accompanied by its own HRA. As things presently stand the WRMP 2024 and it's HRA are in draft form. The Statement of Responses [CD8 1.04] indicates a range of relevant information and new material that would need to be considered ahead of finalising either document. The likelihood of changes being made brings into question the validity of the draft WRMP 2024 and it’s HRA as a basis for present decision making. The specific details of the documents themselves do not, therefore, provide a credible basis on which to reach a conclusion about reasonable certainty.
10.60 A reasonable planning system parallel to this situation would an HRA prepared for a Local Plan being used to support a development management decision. Paragraph 008 of the PPG provides some relevant advice [8.22] including reminding decision makers that the HRA would still need to contain complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt on the impact of the project. This is a high standard to meet and will need to be assessed on a case by case basis.
…..
10.62 In a more general sense, the Secretary of State can expect that the relevant bodies will comply with their duties under the Habitats Regulations when the WRMP 2024 is finally published. This includes carrying out any appropriate assessment of likely adverse effects on the Arun Valley Sites necessary to meet the Regulation 63(5) duty.
……
10.66 Overall, there is not the certainty in the draft WRMP 2024 or its accompanying HRA to conclude that any of the specific measures within it provide reasonable certainty of no adverse effects on the integrity of the Arun Valley Sites will result from the proposal. Other bodies can be expected fulfil their legal obligations under the Habitats Regulations. This includes Southern Water concluding any necessary favourable appropriate assessment, unless IRPOI applies. However, as the question of ‘how’ and ‘when’ lacks reasonable certainty.
…..
10.68 In these circumstances the Secretary of State is being asked to do little more than rely on the unspecified future action of parties fulfilling responsibilities under the Habitats Regulations under other regulatory regimes, including the assumption that any necessary favourable HRA must come forward. The Secretary of State is entitled to assume that other regimes will operative effectively. However, without more detail of what will happen and when, in this case it does not provide evidence of reasonable certainty that can be relied upon to confirm that no adverse effects on the integrity of the Arun Valley Sites will result from the proposal.
The use of conditions and restrictions on occupation to secure Water Neutrality
10.92 In the absence of being able to otherwise ascertain that it the proposal would not adversely affect the integrity of the Arun Valley Sites, it falls to consider whether use the Council’s suggested pre-commencement condition on page 27 of [ID11] requiring water neutrality mitigation to be secured via SNOWS would allow a favourable appropriate assessment to be concluded. The suggested condition is as follows:
No development shall commence until water neutrality mitigation has been secured via Horsham District Council’s adopted Offsetting Scheme (in line with the recommendations of the Sussex North Water Neutrality Study: Part C – Mitigation Strategy, Final Report, December 2022) and this has been confirmed in writing by Horsham District Council."
"10.93 Although Natural England have not commented on the wording or suitability of the condition, as they see that as being beyond their expertise, they advise that any such condition should lead to scientific and practical certainty of ensuring no adverse effects [9.24]. In my view, it is appropriate to clarify that the standard should be ‘reasonable certainty’ to be consistent with the caselaw principles discussed elsewhere in this report.
10.94 SNOWS is part of the strategic approach to achieving water naturality that is designed to provide one way of addressing the issues raised by the NE Position Statement and it is endorsed by Natural England78 . The overall mitigation strategy in the Part C Report is only effective when all three of its elements79 work together. SNOWS is designed to ‘make up’ for any deficit left over from the other 2 elements through Local Authority offsetting and, taking a step back to look at the Part C Report as a whole, is capable of responding with reasonable flexibility to adjust to the best available evidence at particular times.
10.95 In these circumstances, a negatively worded/Grampian condition requiring accordance with SNOWS, and therefore water neutrality, can in principle provide reasonable certainty of no adverse effects on the integrity of the Arun Valley Sites. This is subject to an accompanying condition relating to on-site water efficiency that would achieve levels within the targets contemplated by the Part C Report, and therefore be consistent with the wider mitigation strategy. Section 4 of the Appellant’s Water Neutrality Statement provides evidence that this would be achievable [CD10 1.03a]80 . This condition is recommended in Annex 4 of this report at Condition 5.
10.96 Turning to national policy and guidance on the use of conditions. The points above lead me to conclude that a SNOWS condition would be necessity to secure accordance with the Habitats Regulations. As such, one of the Framework tests at paragraph 56 would be met. I would also not take issue that the condition would be relevant, enforceable, capable of precision.
10.97 The only remaining question on the paragraph 56 tests worthy of detailed examination is whether such a condition would be reasonable. As it specifically addresses the use of Grampian conditions, the following PPG principle should also be considered in more detail ‘such conditions should not be used where there are no prospects at all of the action in question being performed within the time-limit imposed by the permission’81.
10.98 SNOWS is not currently operational which, according to the Council, will not happen until later in 2024. The Proof of Evidence from one of the Council’s witnesses provides details of progress on SNOWS [CD10 1.05d]82 . Its introduction is subject to matters that include agreement between the relevant Local Planning Authorities around prioritisation of access, the tariff that developers looking to use SNOWS will be asked to pay, and (related to this) an update to capacity and costs calculations to reflect the latest figures on water demand forecasts and the WRMP 2024.
10.99 These matters are substantially outside the Council’s control and have the potential to impact on the introduction date for SNOWS. They will also affect when a developer can be expected to have access to SNOWS post introduction and the tariff they would be asked to pay.
10.100 In these circumstances, notwithstanding the Appellant’s willingness to accept the condition in the absence of anything else short of an unfavourable appropriate assessment, in my view the Council’s suggested condition as drafted stretches the test of reasonableness. Nevertheless, there are two appeal83 decisions before the Inquiry where residential development in Horsham was allowed and a similar condition was used.
10.101 Lower Broadbridge Farm was for development on unallocated land, with a Grampian condition and unilateral undertaking providing restrictions that would prevent implementation until either a water neutrality scheme had been approved and implemented or, alternatively, use of SNOWS when available. In this case, neither the mitigation land nor landowner for the water neutrality scheme were identified at the point the decision was made.
10.102 In the case of Storrington, the land was allocated in a neighbourhood plan with a Grampian condition restricting development until a site-specific water neutrality mitigation scheme had been agreed and implemented or, alternatively, use of SNOWS when available. In this case, more detail of the site-specific mitigation scheme and land were known at the decision date than was the case in Lower Broadbridge Farm.
10.103 Both decisions consider their respective conditions against the tests in the Framework and conclude that they were necessary to confirm no adverse effects on the integrity of the Arun Valley Sites84. Both acknowledge the uncertainty related to SNOWS and prioritisation of access to it for their proposals but do not identify these issues as a barrier to linking conditions to it.
10.104 For this proposal, while the Council cast some doubt over prioritisation of access in oral evidence at the Inquiry, their acceptance that the proposal may well score highly in the prioritisation system when it is finalised in the Proof of Evidence from one their witnesses is a fair reflection of the position85. This does not appear to be a materially different situation to the one presented to the Inspectors in the two appeal cases, where a favourable conclusion was reached. There is no evidence in this case leading me to recommend a contrary view. As such, I consider that there is some prospect that the proposal would be able to access the SNOWS scheme within the permission time limit and a condition securing this would accord with the principle in the PPG.
10.105 On the more general question of reasonableness, it is notable that in both the Lower Broadbridge Farm and Storrington cases accessing SNOWS is specified in the absence of a bespoke water neutrality solution being implemented. This is essentially using SNOWS as a fallback and differs from the present proposal where, as currently drafted, offsetting via SNOWS would be the only option available to the developer.
10.106 Considering the points above, to ensure a SNOWs condition for this proposal is reasonable, and therefore in full accordance with the paragraph 56 Framework tests, there needs to be an option within it for a bespoke specific water neutrality scheme to be brought forward. Otherwise, the developer would be tied to the use of SNOWS regardless of prioritisation or the tariff. Provided such a scheme were approved by the Local Planning Authority, adopting this approach would not introduce uncertainty into the process in a way that may offend the Habitats Regulations.
10.107 Accommodating the possibility of a bespoke specific water neutrality scheme within the condition for the proposal would not be dissimilar to the circumstances in Lower Broadbridge Farm, where neither the mitigation land nor landowner for the water neutrality scheme were identified at the point the decision was made. As such, this approach would be consistent with other appeal decisions.
….
10.109 Turning to the trigger for the condition, the need for water neutrality arises because of the occupation of the dwellings. This is because it is the use of water by the end users that gives rise to likely adverse effects on the Arun Valley sites. As there is no evidence of risks from construction, the Council’s suggested pre-commencement trigger arguably lacks clear justification as the condition could be linked to occupation and still fulfil its intended purpose. This brings into question whether it would accord with the final sentence of paragraph 56 of the Framework"
Conclusion
There appears to be a clear distinction emerging in the Secretary of State's treatment of water concerns in planning appeals.
On the one hand, we have decisions such as “Huntingdon Road” and “Cambridge North”. These indicate that when it comes to questions of water supply (at least around Cambridge), the Secretary of State is willing to rely on the underlying regulatory regime and will not insist on Grampian conditions or occupation restrictions as a pre-condition of granting planning consent.
On the other, we have decisions (such as this one) which engage the Habitat Regulations. In these cases, a much higher degree of certainty is required (as a matter of law) - and the fact that water companies are themselves subject to independent regulation, will not be enough to overcome that legislative hurdle and avoid the imposition of further restrictions on a consent.
Instead, we remain in the same holding pattern that we have occupied for the last two and a half years… until the water companies manage to resolve the underlying issue, by finding a new water abstraction source*+, water neutrality will need to be secured before any development in the affected area can come forward.
Grampian conditions may help developers get a little further along the road, but either a site specific or a strategic solution will need to be in place before those developments can be occupied…..
…. Oh, and if you are relying on a strategic scheme, such as SNOWS, remember that you need to show at least “some prospect” that you will be able to access the scheme before your planning permission expires….. which is currently easier said than done.
*as far as I am aware, anyway….
** for those of you who don't operate in this particular patch of Sussex.
*! I am not covering all of the relevant considerations in this blog…. it would get far too long. Instead I am dealing with the points of most general interest and strongly recommending that you read the entire decision for the rest….
*+ or abandoning that one!
In considering whether compliance with conditions or other restrictions enable it to be ascertained that the proposal would not adversely affect the integrity of the site, for the reasons set out at IR10.92-IR10.112 the Secretary of State agrees with the Inspector’sproposed amendments to the Council’s suggested Sussex North Offsetting Water Scheme (SNOWS) condition set out at IR10.111 and his conclusion at IR10.112 that compliance with conditions enables her to ascertain that the proposal would not adversely affect the integrity of the Arun Valley sites.
20.The Secretary of State agrees with the Inspector’s conclusion at IR10.113 that subject to compliance with conditions, she is able to ascertain with reasonable certainty that the proposal would not adversely affect the integrity of the Arun Valley Sites.”
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