Folkestone & Hythe District benefits greatly from its varied and attractive environment and high quality landscape, and against this context there is a requirement under the National Planning Policy Framework (NPPF) "to support the Government's objective of significantly boosting the supply of homes".
In September 2020 the council's Cabinet approved the lower tier plan, the Places and Policies Local Plan, which shall deliver housing growth across the District to 2031 across a range of small-medium sized sites.
We are separately at an advanced stage in the preparation of a Core Strategy Review, which is to be the subject of Examination in Public by two inspectors working on behalf of the Planning Inspectorate in November 2020.
The Core Strategy Review proposes the allocation of a new garden settlement within the North Downs character area (known publicly as Otterpool Park) alongside modest additional growth at Sellindge, with a plan period to 2037.
We are committed to only approving development if it meets the three strands of sustainable development, as set out in the NPPF which places emphasis on the planning system has three overarching objectives - the environmental objective requires development to contribute to protecting and enhancing our natural, built and historic environment. Part of the consideration of this is whether there would be a detrimental impact on any European Designated Nature Conservation Sites whether these are within the District or not.
Stodmarsh European Designated Sites
Stodmarsh lies east of Canterbury and is a Special Protection Area (SPA), Ramsar site (wetland site), Special area of Conservation (SAC), and a Site of Special Scientific Interest (SSSI) and parts are a National Nature Reserve (NNR). It is a site of national and international importance for a range of water dependent habitats and wildlife that relies upon them.
During 2017/18, a review of the internationally designated lakes at Stodmarsh identified that some of the lakes there had raised nitrogen and phosphate levels, leading to eutrophication of the lakes which occurs when an excessive amount of nutrients within a water body are present, resulting in increased plant growth that reduces the oxygen content in the water.
This process makes it difficult for aquatic insects, invertebrates or fish to survive, in turn removing a food source from the food cycle.
Natural England have advised us that high nutrient levels including nitrogen and in particular phosphorous, originating mainly from permitted wastewater discharges into the River Stour (River Stour catchment) across east Kent, may be affecting existing water quality (eutrophication) on the Stodmarsh European designated sites (Special Area of Conservation (SAC), Special Protection Area (SPA) and Ramsar site).
In July 2020, Natural England (NE) issued Advice on Nutrient Neutrality for New Development in the Stour Catchment in Relation to Stodmarsh Designated Sites - For Local Planning Authorities dated July 2020.
In summary, the consequence of this Advice is to avoid the potential for any further deterioration in the water quality of the Stodmarsh European designated site pending further investigations as to the cause of the eutrophication. This has direct consequences for some new development proposals within parts of Folkestone & Hythe District.
We have sought detailed Advice given the complexity surrounding water quality impacts, and specifically the implications for the District Council.
To assist with the exercise we separately commissioned water quality consultants to complete a nutrient budget for the Folkestone & Hythe Local Plan (2020 to 2037), including all development conferred by the Plan which drains into the Stour catchment either directly via land use run off or indirectly via the effluent of a waste water treatment works (WwTW). This technical work is ongoing at the time of writing.
Both the us and Natural England are working on the drafting of a Statement of Common Ground to articulate where agreement has been reached (or otherwise not) on key matters regarding the impact of planned development on the integrity of the Stodmarsh European Designated site, insofar as the position is to inform any debate on the matter at Examination in Public in due course.
The purpose of this Position Statement
This Position Statement sets out the council's current approach to new development which is likely to have an adverse effect on the integrity of the Stodmarsh European sites in light of the NE Advice.
- Scope of the Advice
a) Geographical
The NE Advice covers all areas within the Stour Operational Catchments, to include the Little Stour and Wingham, Lower Stour and Upper Stour sub-catchment areas.
Specifically for our district the northern part of the district is affected:
In addition, the Advice lists those wastewater Treatment works (WwTW) to which effluent is drained which are also the subject of the Advice. For Folkestone & Hythe District the implications are limited to Sellindge WwTW only.
Within the district, development where wastewater would drain to the Sellindge Wastewater treatment works will also be subject to the scope of the Advice, whether the development is within the Stour catchment area or not:-
b) Type of Development
The NE Advice applies to all types of development where a net additional population would be served by a wastewater system. In practice, this means proposals for all new residential development where a net increase in homes is proposed; as well as new student accommodation, tourist accommodation or tourist attractions.
New commercial development that does not involve overnight accommodation will generally be exempt unless they raise other water quality issues but if in doubt please contact us to discuss the specific proposal.
- Process required
Under the Conservation of Habitats and Species Regulations (2017 as amended) (hereafter referred to as the Habitats Regulations), there are significant responsibilities conferred on the council as a 'competent authority'. Chiefly, it requires the council to only approve plans or projects (such as planning applications or a local plan) if there is no likelihood of a significant effect on any European designated nature conservation site.
A significant effect could be caused by a number of potential impacts including direct or indirect habitat loss, air pollution, water quality, increase in recreation, light pollution, or construction activity.
In order to assess whether planning applications would lead to a 'likely significant effect' a Habitats Regulations Assessment (HRA) is carried out. This generally includes an Appropriate Assessment (AA), which is the second, more detailed stage of an HRA.
Natural England must be consulted on the findings of an HRA and there is a duty to consider their response. More detail on the process of HRA / AA can be found in the Government's guidance on protected sites and areas and how to review planning applications and government guidance on appropriate assessment
A potential effect would be considered 'likely' if it cannot be ruled out based on the information available as opposed to it merely being probable or possible. When then moving to the appropriate assessment stage, an established principle in case law is that AAs must use the 'precautionary principle'. An appropriate assessment must enable the local planning authority to apply the regulation 63(5) "integrity test" on a "precautionary basis".
Authorisation may only be given if the competent authority has made certain there will be no adverse effect on the integrity of the site and where no reasonable scientific doubt remains.
It must therefore be shown that there would be no likelihood of a significant effect in order for the us to lawfully grant planning permission.
Therefore, for developments within the scope of the NE Advice, the council will need to carry out a HRA to establish the nature and scale of potential impact on the designated sites at Stodmarsh. This will include the need for an AA, which developers will be requested to draft and submit to us for approval if appropriate, taking into account the views of NE.
As we currently understands the position, the only way that a new housing scheme (or other affected type of development proposal) could prevent this likely significant effect is for its submitted AA to demonstrate there to be no increase in nutrients into the Stour river catchment area, i.e. for it to be 'nutrient neutral'
- Nutrient neutrality
The NE Advice note sets out Natural England's methodology for establishing the nutrient impact of a proposed development. This will help to confirm what scale of mitigation will be required in order to achieve nutrient neutrality.
The Advice Note also indicates that there may be different forms of potential mitigation to achieve a nutrient neutral development.
We are in the very early stages of identifying which forms of mitigation may be most appropriate for the different forms and scales of development to which the Advice applies and more details on this will be published in due course.
Existing proposals
Proposals which would have otherwise been within the scope of the NE Advice but which already have full planning permission or outline planning permission and approval of all reserved matters may proceed without needing to undertake any additional assessment exercise.
However, the council considers that existing planning applications and applications for the approval of reserved matters within the scope of the Advice and either undetermined by the council or with a resolution/delegated decision to grant permission subject to the prior completion of a Section 106 Agreement or other matters, are subject to the NE Advice.
Our officers will be writing to all affected applicants shortly to explain the position and what steps they must take to move their applications to a point where a decision may be issued.
Existing planning applications within the scope of the Advice and currently the subject of an appeal to the Secretary of State/Planning Inspectorate are also subject to the Advice.
These too are likely to be subject to the HRA / AA process, and our officers will be writing to the Planning Inspectorate regarding all affected applications shortly, in order that the Inspectorate may determine how it wishes these appeals to progress.
What you need to do
We are currently investigating possible solutions and have identified a way forward for larger housing sites. We will keep you updated on progress. However, we will be taking a precautionary approach and will require appropriate assessments for any planning applications including those not yet determined.
If you have a planning application currently under consideration you should:
- first read the advice from Natural England
- then speak with the Planning case officer to discuss any suggested mitigation
If you are thinking of submitting a planning application, you can:
- ask Natural England for advice using their paid pre-application advice service
- use our pre-planning application advice service
Validation
Please note - we have recently received advice from Natural England in respect of the nationally and internationally designated protected sites at Stodmarsh lakes, east of Canterbury.
This relates to an increased level of nitrates and phosphates within the protected sites which is adversely affecting the integrity of the habitat of the lakes.
In line with established case law and the 'precautionary principle', Natural England are advising that applications for certain types of development (those where there is any overnight accommodation) within the Stour river catchment and / or which discharge to particular Wastewater Treatment works within the catchment, should be the subject of screening under the Habitat Regulations and, consequently, the undertaking of an appropriate assessment prior to any decision to grant planning permission.
Prior to submitting your application you must identify whether your application requires an appropriate assessment to accompany it as failure to provide one where necessary will result in your application being made invalid.
Natural England advice - Development on Stodmarsh