Guide Phosphates on the River Axe

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4. Development and Application types

We will assess applications on a case-by-case basis. We are following a precautionary approach. We strongly recommend that you use an environmental or ecological consultant.  They will help you:  

  • complete the phosphate calculator 
  • research and design any required mitigation strategy 

Development types affected

New residential units - Nutrient Neutrality applies to applications where there is a net increase in the number of dwellings. This includes:

  • barn conversions 
  • care homes 
  • tourist accommodation 
  • gypsy sites or pitches 

Commercial/industrial developments - In general commercial development, schools and retail are exempt.  This is because it is accepted that people tend to work and live in the same catchment.  This means the new housing accounts for additional wastewater. 

In exceptional circumstances, nutrient neutrality may be needed.  For example, very large commercial developments that attract people as visitors or for employment from outside the catchment area.  This is when it: 

  • includes overnight accommodation
  • would increase loading from the development's wastewater treatment works

Agricultural development - This is when it is for intensification of livestock numbers.  This means increased phosphates in the catchment area. 

  • Slurry lagoons: Natural England have advised confirmation is required that a proposed slurry lagoon won’t lead to intensification of the holding. A Nutrient Management Plan would need to be submitted with the application to confirm this. 
  • Air quality: If the site is within the Impact Risk Zone, a Simple Calculation of Atmospheric Impact Limits (SCAIL) assessment will be required.  If the results from the SCAIL assessment show a process contribution > 1%, Natural England will request a more detailed and in-combination ammonia assessment.  

Prior notifications - This includes: 

  • agricultural development 
  • change of use of office to dwellings 
  • change of use of agricultural buildings to dwellings 

Anaerobic digesters 

Local Development Orders 

Application types affected

Out of the above development types, the application types likely affected are: 

All new full and outline planning applications 

Section 73 applications/fall back position. This includes:

  • amending previous conditions 
  • minor material amendments leading to an increase in floor space and associated nutrient loading 

A new Section 73 permission can be issued if: 

  • a planning permission has been implemented already  
  • the development is taking place on site 
  • the amended proposal does not increase the number of dwellings or amend foul drainage details

The Habitats Regulations Assessment can say there would be no increase in impact above that already permitted in this case. 

Retrospective planning applications - This is for those that increase nutrient loading. 

The list may change in light of further legal advice and advice from Natural England. We will update our website if any changes occur. 

Please note: General householder extensions are not affected in most cases: 

  • where there is no net increase in population over the average occupancy for a household of 2.4 people 
  • annexes not affected in most cases: They are part of/allied to the existing residential unit. Their ancillary nature means they are not likely to result in a net increase to the average household.  We will impose a condition to prevent occupation as a separate dwelling. 

Planning conditions

A recent High Court judgement (CG Fry & Sons Ltd v SSLuHC 2023) has affected how nutrient neutrality affects planning conditions. The Habitats Directive and Habitats Regulations 2017 require an appropriate assessment to be done. This applies to all conditions including: 

  • reserved matters 
  • pre-commencement discharge of conditions 

This applies no matter what stage an application has reached. 

Even if you have obtained planning permission already, you will need to complete an appropriate assessment. We require this at discharge of conditions stage. The assessment must be done before we discharge a condition. Please note an appropriate assessment must: 

  • consider the implications of the development as a whole 
  • is not limited to the matters for approval 

Minor agricultural development

We will consider applications on a case-by-case basis. If the development: 

  • is connected to Countryside Stewardship
  • has support and approval from the Catchment Sensitive Farm Officer 

New development in the catchment area could mean the: 

  • storage 
  • management 
  • spreading of organic material within the river’s SAC 

The proposal should be screened to find out if it may have a significant effect on a SAC. 

Permitted Development works in the catchment area

For works under the General Permitted Development Order (GDPO) including: 

  • any increase in residential dwellings
  • other forms of development providing overnight accommodation 
  • agricultural development

Applicants should note pre-commencement legislation. 

Article 3(1) of the GPDO imposes a pre-commencement condition. It relates to all permitted development that would affect a European protected habitat. 

You will need to make an application under Regulation 77 of the Habitats Regulations. You cannot lawfully start the permitted development until the Council approves this application. This allows the Local Planning Authority (LPA) to assess the implications for the protected site. The LPA does this with the appropriate nature conservation body. The LPA can only approve the application if it is shown that it will not have an adverse effect. 

Refusals and withdrawals

An application can be refused if it needs a Habitats Regulations Assessment or if there are other reasons for refusal.  The LPA can refuse planning permission due to: 

  • lack of information 
  • failure to show that the proposal would not increase phosphate levels and further affect the current status of the River Axe SAC 

We will not refund the fee if you submit a valid application and then withdraw it before it has been determined. 

Other considerations

Grampian conditions  It is not possible to use a Grampian condition requiring a mitigation package.  This is because there is no certainty at this stage over the course of mitigation needed.  Please note Appeal decision APP/Q3305/W/20/3257000 (1.6.21) - Land to the north of Wookey Hole Road, Wells, Somerset. 

Outline consents  We cannot extend the deadline of an Outline consent if the River Axe SAC issue is not resolved before it expires.  You will need to reapply and pay the relevant fee.