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Outline Planning Permission for 100 Dwellings Refused on Habitats Grounds

Conor Fegan

An Inspector has dismissed a non-determination appeal brought by Bargate Homes Limited seeking outline planning permission for the construction of up to 100 residential dwellings on the basis that the proposed development would have a likely adverse effect on the integrity of designated sites in the Solent (APP / A1720 / W / 19 / 3225866).

The appeal is the latest in a series of decision letters which grapple with the issue of nutrient neutrality in the Solent.  The issue has led to some local planning authorities imposing an effective moratorium on residential development until strategic mitigation has been secured.  Natural England has published a document, ‘Advice on Achieving Nutrient Neutrality for New Development in the Solent Region’, which suggests that ‘achieving nutrient neutrality is one way to address the existing uncertainty surrounding the impact of new development on designated sites’. The document provides a methodology for determining if a proposed development is nutrient neutral.  This includes calculating the current and future nutrient load for the proposed site based on specified land use values, and considering any off-set land as mitigation which might be required.

The appellant relied on this document and argued that the proposed development was nutrient neutral.  A key part of its argument was that the appeal site should be classified as a horticultural use under the advice note.  The Inspector rejected this argument.  He held that ‘active agricultural use accounts for only a small fraction of its overall area’ at present ([15]) and that evidence of historic agricultural use did not form ‘a ‘sound basis upon which to classify the whole site area as falling within a particular category of agricultural use’ ([16]).  He also rejected the argument that horticultural use was a likely fallback position ([17]).  He then concluded that ‘classification of the whole site area as being in horticultural use cannot be accepted’ ([18]).  In light of this, the Inspector concluded that the mitigation suggested by the appellant by way of off-set land was insufficient because it was underpinned by classification of the whole site area as in some form of agricultural use ([19]). 

And in respect of the off-set land, the Inspector went on to conclude that the proposed s. 106 agreement did not secure the mitigation in perpetuity ([20]). The Inspector also rejected the argument advanced by the appellant and supported by the local planning authority that the issues in the appeal could be overcome by imposing a Grampian condition ([22] – [23]).  

The decision will be of particular interest to those involved in nutrient neutrality appeals in the future.  It confirms the importance of a precautionary approach being adopted when classifying site use and the need for robust evidence in support of classifications.  It also confirms that this issue cannot be overcome by way of a standard Grampian condition attached to planning permissions for residential development. 

A copy of the decision letter can be found here.

Conor Fegan was instructed by Bob Hull MRTPI on behalf of the successful Save Warsash and the Western Wards.