Water resources in Northern Chichester District
Natural England is concerned that existing water abstraction in the Sussex North Water Resource Zone (opens new window), which supplies part of the north of the district, is having an impact on protected sites in the Arun Valley. The increasing demand for water is thought to be harming internationally protected species, with the potential threat of extinction for some of these species. In response to this, Natural England has advised that new developments within this zone, which affects Horsham, Crawley and part of Chichester District (including some parts of the South Downs National Park) must not add to this impact. The area is served by supplies from a groundwater abstraction at Pulborough. This has the potential to impact upon the Arun Valley, a Special Area Conservation (SAC), Special Protection Area (SPA) and Ramsar site. The council and other affected authorities continue to work together to further our collective understanding of the issue.
On 14 September 2021, the council received a position statement from Natural England setting out the interim approach. In December 2021, Natural England provided further guidance in response to frequently asked questions (FAQ's) from developers. A further advice note was issued by Natural England (February 2022) to be read together with the position statement, and Natural England has now published an updated FAQ document. All the documents are available to view:
Position statement on Water Neutrality Sept 21 2021 (Word doc) [61KB]
Water Neutrality Advice Note Feb 2022 V2 (Word doc) [25KB]
Arun Valley Water Neutrality Developer FAQ (March 2022) (Word doc) [217KB]
Arun Valley Water Neutrality Developer FAQ (Superseded) (Word doc) [158KB]
Water neutrality and planning applications
What types of application are impacted by the Natural England Position Statement?
All development proposals that consume mains water are potentially impacted by the Natural England Position Statement. A screening exercise is carried out for all relevant applications, and most householder proposals (with the exception of swimming pools and annexes) will be screened out at that stage.
All other development proposals that consume mains water are now required to demonstrate water neutrality. This includes all development other than that mentioned above granted under the General Permitted Development Order. All applications for Reserved Matters must also now demonstrate water neutrality.
Applications made under s.96a of the Town and Country Planning Act for non-material amendments do not need to demonstrate water neutrality (unless the amendment would increase water consumption, at which point it will be considered a material amendment).
Applications made under s.73 of the Town and Country Planning Act for minor material amendments (including the variation or removal of conditions) will in many cases need to demonstrate water neutrality. Further specific guidance on when water neutrality applies for s.73 applications is set out separately below.
The information provided in this section should be treated as guidance only (which is subject to change) and any application will be assessed on its own merits.
What about applications to discharge planning conditions?
The consequence of the C G Fry v SoS and Somerset Council High Court (opens new window) decision is that it now means that a Habitats Regulations Assessment is required at discharge of condition stage, even if the planning permission itself pre-dates the Natural England Position Statement (Sept 2021). We will therefore be unable to approve applications for matters reserved by condition unless:
- The condition relates to a development that has previously been screened out from requiring water neutrality (such as most householder development)
- The condition relates to a development that has already demonstrated water neutrality.
- The condition relates to matters required to be agreed at pre-occupation stage only; or
- The condition does not run to the heart of the permission (ie it is not a conditions precedent*)
There is considerable case law on what constitutes a conditions precedent, but broadly speaking we would consider this to be conditions relating to matters such as land contamination, underground services, finished floor levels, drainage, materials, biodiversity mitigation. As always there will be exceptions as well as other conditions that constitute a conditions precedent on a case-by-case basis.
For those developments which now must demonstrate water neutrality, the simplest way to achieve this is to make an application under s.73 of the Town and Country Planning Act to vary the original planning permission. The s.73 application would need to be accompanied by a Water Neutrality Statement and would allow conditions to be applied to secure any onsite mitigation, alongside a s106 agreement to secure any offsite mitigation. As part of the s.73 application submission you may also wish to submit the details necessary to satisfy any outstanding conditions.
Please note that we will not be able to issue a s.73 consent if the commencement date of the original planning permission has lapsed with no commencement work having taken place. In such cases a fresh application for planning permission will be required.
If your development has commenced and you are in breach of a condition, you may alternatively apply for retrospective planning permission under s.73a of the Town and Country Planning Act.
It is not possible to make an application under Regulation 77 of the Habitats Regulations (see below for further detail) to demonstrate water neutrality in these cases as Regulation 77 only applies to development granted by way of a Development Control Order (such as the General Permitted Development Order).
Do I need to demonstrate water neutrality when making an application for a minor material amendment under S.73 of the Town and Country Planning Act?
An application made under s.73 of the Town and Country Planning Act creates a new planning permission on a site therefore we must consider water neutrality as a new material planning consideration in all cases.
Where the original planning permission has already demonstrated water neutrality
If the original permission has already demonstrated water neutrality, and the proposed amendment would not alter the water consumption of the approved development, then no further water neutrality measures will be required. Your submission must though explain what the implications for water consumption from the amendments are. If the amendment would increase water consumption, then an updated water neutrality statement will be required.
Where the original permission has not previously demonstrated water neutrality
If the original permission has not previously demonstrated water neutrality, then the Council will take the following approach:
- If the original development has commenced with all relevant pre-commencement and pre-slab level conditions discharged, then water neutrality will not be required.
- If the original development has not commenced but all relevant pre-commencement and pre-slab level conditions have been discharged, then water neutrality will not be required provided there is evidence that the original development will be implemented in the alternative (see advice on the 'fallback' above).
- If the original development has not commenced and there remain relevant pre-commencement and pre-slab level conditions to be discharged, then water neutrality will be required to be demonstrated.
Amending existing outline planning permissions
Where you are seeking to amend an existing outline planning permission granted prior to the Natural England Position Statement, and that permission has been commenced, we would normally seek to apply a condition to require that water neutrality be addressed prior to the grant of any subsequent reserved matters applications, unless water neutrality has otherwise already been addressed. This would be consistent with how water neutrality would be addressed if the original outline permission was pursued instead.
Where an outline planning permission has not been implemented, we will apply the same test as set out above for amending an unimplemented full planning permission.
If you are seeking to amend a reserved matters consent, water neutrality will need to be demonstrated for the area subject to reserved matters consent only.
What information is required?
If a development will create demand (regardless of any existing use of the site) for mains water from the Sussex North Water Resource (Supply) Zone, the applicant must submit a Water Neutrality Statement setting out the existing and proposed water consumption figures and a scheme for how water neutrality will then be achieved. In the future, the submission of a water neutrality statement will likely become a local validation requirement.
Further guidance will be available shortly.
What if water is from a different source?
If development is not supplied by the abstractions in Sussex North Water Resource Zone, then there would be no need to demonstrate water neutrality. The applicant will however, need to evidence where the supply to their site comes from and obtain Southern Water's agreement that the supply is sourced from outside the supply zone.
Water Neutrality and Planning Policy
Joint study
The council is working on a joint study with neighbouring affected authorities, along with Natural England, Southern Water and the Environment Agency, to quantify the scale of the issue and identify a proposed mitigation strategy to address this issue.
It is currently envisaged that the study will comprise of three parts:
Part A: Individual local authority areas assessment
The study calculates the individual impact of each local authority on water resources using estimates of future growth. The contribution that could be theoretically possible from different measures is also presented.
Sussex North Water neutrality study - part A (PDF) [907KB]
Part B: In-combination assessment
The individual authority assessments have been combined into a Water Supply Zone assessment and the report is published below. Part C, the mitigation strategy, will then follow towards the end of the summer.
Water Neutrality Study: Part B - In-combination Final Report April 2022 (Word doc) [2MB]
Part C: Determine mitigation
The third part of this study, this mitigation strategy, is published below along with a statement from Natural England.
Water Neutrality Study: Part C (PDF) [34MB]
Further updates will be available on this webpage.
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