October 2024

Permission granted for reserved matters residential scheme in West Sussex by Secretary of State following evidence presented by Aspect Ecology in respect of Water Neutrality

Development across the sub-region south of Gatwick has been largely on hold since September 2021 following the publication of a position statement by Natural England flagging a potential risk of agricultural water abstraction to Arun Valley SAC / SPA / Ramsar that could cause an adverse effect on its interest features, including Lesser Ramshorn Whirlpool Snail Anisus vorticulus. The position statement highlights that Natural England’s view is that it cannot be concluded that the existing abstraction within Sussex North Water Supply Zone is not having an impact on the Arun Valley site and as a result they advise that developments within this zone must not add to this impact.

Due to the level of protection afforded to European designations, namely SACs / SPAs / Ramsars, the restriction imposed by Natural England’s position statement includes sites which are already in receipt of outline permission but have, as yet, not achieved reserved matters permission or discharged relevant conditions. As a consequence, large scale multi-phase strategic housing sites, that are mid-way through construction, have come to a halt, where future phases are awaiting the grant of reserved matters permission. Aspect Ecology was engaged by a developer in this position to present evidence at appeal in respect of such a reserved matters application.

Natural England’s position statement goes onto advise that developments within Sussex North must therefore not add to the existing impact of water abstraction and one way of achieving this is to demonstrate ‘water neutrality’. To provide this water neutral mitigation solution, in response, affected local authorities are in the process of developing a strategic mitigation strategy, but this is taking a considerable time to develop and agree.

In preparation for the inquiry, Aspect Ecology examined a range of evidence which led to our conclusion that the regulatory control and oversight of this matter should in fact sit with Environment Agency, rather than Natural England, and that their actions can be relied upon as they are duty bound to protect the designations. In this regard, it is seen that following publication of Natural England’s position statement, Environment Agency acted promptly to obtain an undertaking from Southern Water to minimise abstraction (therefore ensuring no adverse effect on the designations can arise) and by requiring a sustainability study is undertaken to establish if there is any hydrological link between the abstraction point and the SAC / SPA / Ramsar. In addition, Aspect Ecology’s research identified other contributing factors, such as a drinking water reservoir currently being closed for maintenance (that all parties agree will resolve the issue once opened), alongside other measures that could be deployed to resolve matters e.g. bulk scale water transfers.

This evidence was heard at inquiry in March 2024, with the decision subsequently recovered by the Secretary of State due to the sub-regional strategic nature of the implications of any decision. Following a detailed consideration of the evidence the Secretary of State published their decision in October 2024 which granted reserved matters permission for the scheme, which is a successful outcome to the appeal.

It is noteworthy however, that the permission carries a condition requiring mitigation measures to be included to secure water neutrality to enable a favourable assessment under a Habitats Regulation Assessment (HRA) / Appropriate Assessment (AA) to be reached. This requires utilisation of the, as yet unavailable, local authority strategic mitigation offset scheme or a suitable scheme of water neutrality brought forward by the developer. Helpfully though, the condition does not require this until immediately before occupations occur enabling construction to proceed where a pathway to mitigation has been identified. Nonetheless, until a strategic mitigation scheme is widely available, development in the sub-region remains effectively throttled or on hold.

To read more details in respect of the issues discussed, please see the Secretary of State’s decision notice here.

Follow Aspect Ecology on LinkedIn for all our latest news LinkedIn Page