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Developers hire leading barrister over neutrality ruling by Natural England affecting parts of West Sussex

A group of developers has appointed a leading planning and environmental barrister to advise on how to respond to a ruling by Natural England (NE) that threatens to stop house building in parts of West Sussex.

The dispute concerns the impact of water extraction to serve new homes on the habit of a rare type of snail.

NE last year said excess abstraction of water in parts of the Chichester, Crawley and Horsham districts endangered the ramshorn snail and any new developments would have to demonstrate ‘neutrality’ - that they did not increase demand for water.

This is often achieved by measures such as installing showers rather than baths and ‘greywater’ recycling systems, both of which are viewed by housebuilders as unpopular with potential buyers.

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The issue has seen councils prevented by NE from allowing new building in the areas affected but without any relief from central government over the number of new homes they are expected to achieve.

Marcel Hoad, managing director of Fowlers Estate Agents, which leads the Houses for Homes group, said the impact of NE’s move on members was “extremely arduous – in short time we believe without development coming forward then jobs and livelihoods will be effected and of course the growing issue is the extreme shortfall of housing numbers in the area caused by the moratorium on planning – in turn this leads to less supply, increased demand and higher prices for the public”.

Jonathan Clay of Cornerstone Barristers has suggested more water could be pumped to the area from Portsmouth so preventing the snail habitat from drying out.

He also proposed new infrastructure to pump freshwater upstream to the area from a weir.

The three councils have not yet sought to take any legal action believing they have no route for redress against NE.

A Horsham spokesperson said: "It is a legal requirement that the emerging local plan demonstrates that it is water neutral.

“Work is ongoing to develop a mitigation strategy for the local plans in the north west Sussex area. This is a highly complex piece of work and is being carried out in partnership, working with the other affected local authorities and with input from Natural England, the Environment Agency and Southern Water.”

Horsham said any solution might limit the amount of development that can take place, in which case it would be unable to meet housing targets set by national government.

Planning applications continue to be determined and some developments have been permitted where water neutrality has been conclusively demonstrated, but “this is a very high bar”.

Concerns have been expressed that if water neutrality demands spread they could lead to local plans being disrupted, since development would become concentrated in those parts of local authority areas unaffected by NE’s rulings, even if these were not designated for development in plans.

Mark Smulian

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