Nitrates pollution leaves councils in Hampshire facing planning appeal costs, disruption to local plans

Local authorities in southern Hampshire face potential planning appeal costs and disruption to local plans because of a European Court of Justice ruling that affects nitrate pollution in the Solent.

A report to the Partnership for Urban South Hampshire - which brings together councils in the area over planning issues - said this followed a ruling concerning a case in the Netherlands on interpretation of the Habitats Directive.

It said: “Due to the nitrate issue, developers have been unable to obtain planning consent and where planning has been granted it is not possible at this time to issue the planning consents.”

Graham Horton, Solent European marine sites officer for Natural England, told PUSH that the ruling meant the regulator had to take a more cautious approach than before when advising on assessments under the directive.

He told councillors that Natural England’s position was that it was difficult to permit additional nitrates into an already failing system.

Some nitrates arose from agriculture and work was in progress on mitigation with farmers, but others arose from residential waste and councils “must satisfy themselves there is no impact from new houses and…decide the level of risk from permitting development,” Mr Horton said.

PUSH is to ask the Government for respite from housing delivery tests until the situation could be resolved.

The meeting heard it might be possible to grant planning permission but with a ‘no occupation’ condition pending resolution of the problem.

A separate report to Portsmouth City Council explained that the Solent area “has recognised problems from nitrate enrichment; high levels of nitrogen from housing and agricultural sources in the catchment have caused excessive growth of green algae, which is having a detrimental impact upon protected habitats and bird species”.

It said Natural England had advised Havant Borough Council that planning permissions should not be granted until an interim strategic solution could be devised.

Portsmouth sought a QC’s advice, which concluded that Natural England's position was valid and as a result the city council “has temporarily ceased granting planning consent for additional dwellings (or an intensification of dwellings), tourism related development and development likely to generate an overnight stay at this time”, though individual applications can still be considered if they are able to demonstrate they are 'nitrate neutral'.

The report warned that Portsmouth was “susceptible either to challenges by developers for refusal or for non-determination, or by persons concerned about the environmental implications of a potentially inadequate appropriate assessment under the Habitat Regulations.

“This presents significant consequences for residential development where decision notices are imminent”.

The Planning Inspectorate had been notified of the nitrates issue and “must follow the case law in the same way as the council [which] awaits the inspectors' decisions with great interest as any further appeal to the High Court would set a precedent on the issue and help raise awareness with Government”.

Mark Smulian