Water neutrality - planning applications

What is water neutrality?

Water neutrality is defined as development that takes place which does not increase the rate of water abstraction for drinking water supplies above existing levels.

Water Neutrality has impacts for the Local Plan, Neighbourhood Plans and Development Management.

This page gives information about water neutrality and planning applications. Information about water neutrality and planning policy is also available.

Why water neutrality is important in Chichester

Chichester District is situated in an area of serious water stress, as identified by the Environment Agency Water Stressed Areas Classification.

Some parts of the District is supplied with water by Southern Water from its Sussex North Water Resource Zone. This supply is sourced from abstraction points in the Arun Valley, which includes locations such as Amberley Wild Brooks Site of Special Scientific Interest (SSSI), Pulborough Brooks SSSI and Arun Valley Special Protection Area/Special Area of Conservation and Ramsar site.

On 14 September 2021, the Council received a Position statement on Water Neutrality Sept 21 2021 (Word doc, 61 KB) Position Statement from Natural England. Information collected by Natural England shows that water abstraction for drinking water supplies is having a negative impact on the wildlife sites in the Arun Valley. They have advised that any new development that takes place must not add to this negative impact.

The Position Statement also affects Crawley Borough Council, Horsham District Council, parts of the South Downs National Park and West Sussex County Council. We therefore are working closely with these authorities, Southern Water and Natural England on this topic.

A further advice note was issued by Water Neutrality Advice Note Feb 2022 V2 (Word doc, 25 KB) Natural England (February 2022) to be read alongside the position statement. On 2 March 2022 Natural England has updated the answers to frequently asked questions (FAQs) for developers in considering their Position Statement when applying for development in Sussex North.

One way of preventing any further negative impact is to ensure that all new development which takes within Sussex North Water Resource Zone is water neutral.

Where in Chichester District is water neutrality an issue?

Water neutrality is an issue for developments within the Sussex North Water Resource Zone, shown on this map (opens new window).
If a new development is planned within the northern part of Chichester District, including within the South Downs National Park, the location of the site should be checked carefully to see if it would be affected.

Water Neutrality and planning FAQs

These FAQs are specific to information needed to support a planning application. They should be read alongside the information on our Water neutrality and Planning Policy page.

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.

Are applications to discharge planning conditions impacted by the position statement?

The consequence of the CG 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:

1.   The condition relates to a development that has previously been screened out from requiring water neutrality (such as most householder development);
2.   The condition relates to a development that has already demonstrated water neutrality;
3.   The condition relates to matters required to be agreed at pre-occupation stage only; or,
4.   The condition does not run to the heart of the permission (ie it is not a conditions precedent*)

There is a lot of 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 with a planning application?

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. Full details of the information required is set out in the Council's Local Validation List. (Word doc, 136 KB)

Will the Council require demonstration of water neutrality where it can be shown that the application site abstracts its water from a different source to Hardham?

If development is not supplied by the abstractions in Sussex North Water Supply 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.

What is the process Chichester District Council needs to follow?

S.63 of the Conservation of Habitats and Species Regulations 2017 sets out the process the competent authority (in this case CDC) must follow. The Planning Practice Guidance sets out further detail in it's dedicated Appropriate Assessment (opens new window) chapter.

For those applications that will create demand (regardless of any existing use of the site) for mains water from the Sussex North 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. The requirement for a Water Neutrality Statement is a local validation requirement.

The Council will first screen the proposals to assess whether a significant effect on the Arun Valley is likely either alone or in combination with other plans/projects. Mitigation cannot be taken into account at this stage. For instance, if your proposal seeks to reduce water consumption below 110 litres per person per day (the maximum volume required by our current development plan), and/or offset proposed water consumption on another site, then this forms mitigation that cannot be considered at screening stage.

Where proposals have been screened in (ie they are determined to have a likely significant effect), the Council is required to consider the proposed mitigation as part of an Appropriate Assessment. The Planning Practice Guidance states that 'an appropriate assessment must contain complete, precise and definitive findings and conclusions to ensure that there is no reasonable scientific doubt as to the effects of the proposed plan or project' (PPG para 003). The success of the Appropriate Assessment process is therefore highly reliant on the robustness of the evidence presented by applicants. Vague, incomplete or ambiguous data will not be sufficient to enable a proposal to successfully pass through Appropriate Assessment.

The Council will assess the water neutrality statement and strategy and if we consider it a sufficiently precise, credible and deliverable means of achieving water neutrality, the case officer will undertake the Appropriate Assessment.

In the event the strategy passes Appropriate Assessment, the Habitat Regulations require that it is then passed to the appropriate nature conservation body (in this case Natural England) to comment within a 'reasonable time as the authority specifies'. We consider 21 days to be a reasonable time for a response, as per the standard consultation response times.

In the event Natural England do not object, we will be able to then grant planning permission in the event all other matters are acceptable.

Is development granted by the Town and Country Planning (General Permitted Development) Order impacted by water neutrality?

Development granted under the General Permitted Development Order (GPDO) must still demonstrate water neutrality. Article 3 of the GPDO states that planning permission is granted by the GPDO only where the provisions of the Order and regulations 75-78 of the Habitat Regulations have been complied with. Regulations 75-78 of the Habitats Regulations sets out a strict process to be followed for development otherwise granted by the GPDO where that development would result in an impact on a habitats site. If development granted by the GPDO will generate water consumption, it will not be lawful permitted development unless and until the process contained within regulations 75-78 of the Habitat Regulations has concluded no adverse impact on the Arun Valley sites will occur.

In these situations, our current approach is to grant applications for Prior Approval and Prior Notification as normal based on the relevant GPDO criteria, however our decision notices will refer to the need to separately comply with the Habitat Regulations in order to be lawful. Any such development will therefore not benefit from permitted development until an application to the Council under Regulation 77 of the Habitats Regulations has been made and has been determined positively.

Make a Regulation 77 application

Please note that as set out above, development granted under Parts 1 and 2 of Schedule 2 of the GPDO will be screened out from having a significant effect and therefore from being required to demonstrate water neutrality. Therefore, any development granted under Parts 1 and 2 of Schedule 2 does not need to comply with s.75-78 of the Habitat Regulations.

How should Water Neutrality Statements be presented?

Template - How should Water Neutrality Statements be presented (Word doc, 51 KB)

Can I use the fallback consumption of an existing unbuilt planning consent when calculating the existing baseline consumption rate?

The use of a fallback consent as part of the evidence base for the existing water consumption on a site is capable of being considered. However, as the test of certainty to meet the Habitat Regulations sets a very high bar, it is not sufficient to simply rely on the possibility that a fallback scheme may be implemented in the event permission is refused. Instead, we must consider whether the fallback scheme would be implemented in the event permission is refused. To help demonstrate this, we will require evidence that all relevant pre-commencement and pre-slab level planning conditions on the fallback scheme have been discharged, and written evidence that the applicant intends to then build the fallback scheme if permission is not granted.

Can I use the capacity of an existing site when considering existing water consumption at a site, or must I use only the known water usage at the time of application?

We have encountered many scenarios where water neutrality statements are basing existing consumption rates on the theoretical capacity of a site, rather than its actual last known water consumption rate. An example would be using the estimated water consumption from the full occupation of 20 stables, even though only 3 are currently in use. Another example would be estimating water consumption from a café/restaurant use permitted by Class E when the building is currently in retail use, or the last known use was retail.

In such scenarios we can only consider the actual current water consumption at the site, unless there is clear evidence of a higher consumption rate at the site in the last three years, such as from water bills and occupancy information. This three year test is consistent with the Natural England FAQs where Natural England consider three years an appropriate timescale when considering water use from a building now demolished. We will not consider evidence of higher water consumption beyond this three year period.

How will the Council consider residential annexes?

Detached annexes are generally considered capable of self-contained occupancy supplemental to the main dwelling and therefore will be assessed in the same manner as a new dwelling in terms of occupancy rate and water consumption.

What information is required if I want to offset my water consumption on another property?

It is critical that we have certainty that the proposed efficiencies within the offsetting property will provide the necessary savings. To help provide this certainty we will need:

1.   Water bills within the last three years showing actual metered readings.
2.   Current number of occupants in the dwelling(s)
3.   A survey of all existing fixtures and fittings that evidences their current water consumption rate. The evidence should include recordings of the flow rate of each fixture/fitting and photographs of each, and an explanation of the methodology used to calculate the flow rates etc. The results should be placed within a Part G water calculator
4.   A completed Part G calculator for the proposed fixtures and fittings, including details of the fixtures and fittings to be used

To secure the mitigation we will normally require a Section 106 legal agreement, unless the offsetting site falls within the red line site boundary of the planning application in which case the mitigation can be managed by condition. We will not apply conditions if the offsetting site is within the application blue line as the requirement for the mitigation will not then show as a land charge for that property.

What about Water Re-Use Technologies?

Water reuse technologies such as rainwater, grey water and blackwater harvesting have the potential to save significant amounts of water. For example, 24% of water in the home is used for flushing the toilet and 4% externally in the garden, meaning a water reuse system could save at least a quarter of demand if it was installed for these purposes. Such technologies are though unlikely to provide sufficient savings to reach water neutrality without further offsetting.

The Waterwise website (opens new window) and How water neutrality statements should be presented (Word doc, 52 KB) may be of help.

What evidence do you require where rainwater harvesting is being proposed?

We will require details of the rainwater harvesting including the quantum of water capable of being harvested from the site and the means and capacity for storage to cater for drought. Part G of the Building Regulations provides a methodology for calculating the amount of rainwater that can be captured. Drought storage should provide for at least 35 days supply to provide robustness to address climate change, equivalent to the most recent drought periods experienced in the region.
If rainwater harvesting is to be used for drinking water, then evidence of how the system will comply with the Private Water Supplies (England) Regulations 2016 (as amended) will need to be submitted. We will need to see evidence prior to occupation that the water has been independently certified as suitable for consumption alongside a longer term monitoring and maintenance programme.

Rainwater (and greywater) harvesting schemes can be highly contaminated, therefore in all cases where such systems are to be used within dwellings, even for non-potable uses such as toilets and washing machines, we will require details on (but not limited to) the likely contaminants, type of treatment that will be installed, the proposed sampling and testing regime, detail on the maintenance, servicing and cleaning of the tanks, water treatment equipment, pumps, all pipework etc for the lifetime of the development, and measures to ensure continuity of supply.

Will the Council accept boreholes as a means of achieving water neutrality

Private boreholes are capable of providing a suitable source of water (potable and non-potable) to achieve water neutrality, however a significant level of survey work will be required to support any proposal, both before any planning permission is granted and before first occupation of any property. This is because any measures proposed to achieve water neutrality must be certain and secure to avoid any risk of impact on the designated sites. The following guidance has been prepared in consultation with the Environment Agency and Natural England:

For applications proposing a borehole to abstract more than 20m3 per day to serve a development, an abstraction licence from the EA will be required (opens new window). Before an application for an abstraction licence is made, any developer must apply to the EA for a Groundwater Investigation Consent (opens new window).
Evidence of an approved abstraction licence, or a valid licence application, must be provided with the planning application. It can take up to a year to go through the Groundwater Investigation Consent and Abstraction Licensing process and so early interaction with EA for large developments proposing to use a borehole is important.
For applications proposing a borehole that would abstract less than 20m3 per day, an abstraction licence is not needed from the EA. In such cases the information below must be submitted with the planning application.

In all cases, planning applications that propose a borehole will need to provide a Hydrogeology Report (or equivalent) prepared by a suitably qualified professional (eg a qualified Hydrogeologist (M.SC level)). The Report will need to clearly cover the following matters:

Groundwater Resources

1.   The location of the proposed borehole and the aquifer into which it is to be sunk. NB EA advice presumes against abstraction within the Hardham Basin (Folkstone Beds) and Chichester and Worthing Chalk, and where a borehole into the Lower Greensand Arun and Western Streams could reduce flows in the River Rother. View the EA's Arun and Western Streams abstraction licensing strategy (ALS). (opens new window)
2.   Whether any geological links exists from the borehole location and the Arun Valley basin, ie confirm that the abstraction of water from the borehole will not also take water from the Arun Valley habitat sites, or otherwise impact on their integrity, even very indirectly, including from any river catchment that serves the Arun Valley basin
3.   Whether the borehole location will impact on any nearby SSSI's and their impact zones, or any other ecological features
4.   A hydrogeological assessment of water yield from the borehole is necessary in all cases, commenting on risk of dry periods to ensure continuous year-round supply. Given locational variations in yield supply even in productive aquifers, evidence must be from a test borehole sunk onsite to demonstrate that the site can yield sufficient water in the driest months of the year (June to September), and that this yield will be reliable year-on-year. EA advice is that there is limited evidence that Weald Clay is capable of providing reliable yields, albeit some limestone and sandstone bands may be capable of supplying sufficient water for smaller schemes. Boreholes sunk into the Weald Clay will likely therefore not be supported unless there is clear evidence of a reliable year-on-year yield sufficient to serve the development proposal.

Groundwater quality

The quality and safety of private water supplies is controlled by in England by the Private Water Supplies (England) Regulations 2016 (as amended), and is regulated by the Council's Environmental Health team.

The risks of pollution to a drinking water supply vary with the properties of the underlying soils and rock. The Environment Agency use source protection zones (SPZs) to identify areas close to drinking water sources to apply controls on some activities which could cause pollution. For large supplies, such as water company abstractions, these SPZs are created on a bespoke basis using groundwater modelling. However, all groundwater sources used for human consumption without a bespoke SPZ have at least a 50m radius SPZ centred on the borehole.

When considering the potential creation of a new SPZ it is important to understand the implications for existing activities which may fall within the zone. Further information on SPZs and relevant activities is available in The Environment Agency's approach to groundwater protection (opens new window).

To support your planning application you will need to provide:

1.   A water quality assessment from the test borehole detailing the quality of the water abstracted and the measures to ensure potable water quality will be secured, including:
2.   Detail on what type of treatment will be installed on the supply with information clearly indicating that it is appropriate for the amount of water being used and the contaminants found.
3.   Detail on the proposed sampling and testing regime, undertaken in accordance with Private Water Supplies (England) Regulations 2016 (as amended) (or subsequent superseding equivalent), and taking into account the likely contaminants, as detailed above, along with detail on how any failure of any samples will be investigated and managed.
4.   Detail on the maintenance, servicing and cleaning of the tanks, water treatment equipment, pumps, all pipework etc for the lifetime of the development along with regularity of servicing/maintenance and clarification what steps will be taken in the event of equipment failure to ensure continuity of supply.
5.   Arrangements for keeping written records of all sampling, results of analysis, inspection, cleaning, and maintenance.
6.   A list of all properties, including their land uses and activities, that fall within 50m of your borehole(s) and which could have the potential to cause pollution, a list of all the activities that would need to be restricted within the zone, and how occupiers will be notified of these restrictions in the event permission is granted. Please annotate the affected properties on a map of the local area alongside the location of your new borehole(s) and the extent of the SPZ.
Please be aware that conditions to secure long-term management, maintenance and monitoring of the private water supply will be required if planning permission is granted.

Will Chichester District Council be using their own consultants to assess Water Neutrality Statements for you?

We will look to ask water consultants to provide us with comments on strategies on a case by case basis. Where we require independent assessment from a consultant, we will contact you in advance and request confirmation first that the applicant will be reimbursing us for that consultation. Payment must be provided immediately upon request, details of how to pay will be provided by the case officer.

How will Chichester District Council seek to secure water neutrality strategies in any planning permission?

To secure the water neutrality strategy, we will apply a condition requiring that development be carried out in accordance with the strategy, with evidence to be submitted to us for approval prior to first occupation or use confirming that the strategy has been implemented in full. Evidence to meet this condition would include photographs of the installed features, their specification, and the completion of the Part G 'as built' table or equivalent. In some cases, depending on the type of mitigation being proposed (such as rainwater harvesting schemes), we will need to understand the longer term monitoring and maintenance programme for the mitigation.
Where offsetting on third party land is required to achieve neutrality, we will require the third party landowner to enter into a legal agreement to ensure the offsetting measures are evidenced as having been installed prior to first occupation or use of the approved development and are retained in perpetuity thereafter.

When will Chichester District Council negotiate amendments to a submitted water neutrality strategy?

It is important that decisions are made in a timely manner where possible and for us to appropriately manage the volume of work in the department to avoid undue delays for our customers. These FAQs contain detailed information to assist in the preparation of water neutrality statements and help ensure decisions are made without significant delay.

With this being the case if a statement has significant shortfalls in its methodology and/or its calculations then we will proceed to determine the application without further negotiation. If however it is considered that minor changes may make an impact on our determination to enable the grant of permission then we will look to seek those amendments wherever possible before a decision is made.

Is it possible to provide a water neutrality strategy on a site that is not in Chichester District?

Provided the mitigation is provided within the Sussex North Water Supply Zone it may be possible to provide mitigation outside of Chichester District, but it can be complex to negotiate and secure. The local planning authority for the chosen mitigation site will need to agree to enter into a legal agreement with Chichester District Council and all other parties to secure the mitigation and monitoring in perpetuity.

Will Chichester District Council accept a condition requiring no development take place until a water neutrality strategy has been submitted and approved?
Several applicants have suggested that we should secure a water neutrality strategy by condition, rather than requiring a strategy be agreed prior to the grant of planning permission. This is not an acceptable approach, as it does not provide for the necessary certainty that the impacts of the development on the Arun Valley sites can and will be mitigated to pass Appropriate Assessment. Any grant of planning permission absent of the up-front certainty that the impact on the Arun Valley can be mitigated would therefore be contrary to the Habitat Regulations.

Furthermore, it is established practice that 'Grampian' conditions should only be used where there is a reasonable certainty that the condition can be discharged within the lifetime of the permission. Given that some schemes will likely require offsetting on third party land to be considered water neutral, the absence of a known third party willing to undertake the necessary works means that there is no certainty that an appropriate strategy will be found within the lifetime of any permission.

Can I just pay an offsetting charge instead?

Until the strategic solution has been identified and costed, it is unclear whether an offsetting charge will be necessary, when it will come into effect, and how much it would require applicants to pay to proportionately offset their development. At this stage there is no ability therefore to pay an offsetting charge.

Can I simply commit to meeting my water supply needs by importing water to my site by tanker from outside the supply zone?
In order to meet the test of certainty that no adverse impact will take place, we must be able to enforce any approved water neutrality strategy. A strategy such as importing all daily water needs will not be enforceable and is therefore not a strategy we will be able to support. Further advice is though being sought from Natural England and this question may be updated.

What about water consumed during the construction process for my development, will this need to demonstrate water neutrality throughout?

At this stage we consider that most construction timeframes are relatively short therefore we will not be actively seeking water neutrality for the construction phase. We will though include a requirement for Construction Environment Management Plans to include meaningful measures to reduce water consumption, which could include rainwater harvesting for wheel washing or wc use.

Will Chichester District Council grant planning permission for development that is not water neutral, but instead shows significant reductions in water consumption?
No, as such development would not be water neutral and therefore would have an adverse impact on the Arun Valley sites contrary to the legal requirements of the Habitat Regulations.

The Natural England Position Statement is a material consideration, and therefore capable of being outweighed by other matters. In light of the Council's lack of five year housing supply, should you not be granting housing development even if it is not fully water neutral?

The Position Statement is a material planning consideration, however any impact on a habitats site contrary to the Habitat Regulations must necessarily carry great weight in decision making. Paragraph 180 of the NPPF is clear that planning permission should be refused for development that would result in significant harm to biodiversity and/or result in the loss or deterioration of irreplaceable habitats.

Furthermore, where an adverse impact on a habitats site is identified and constitutes a clear reason to refuse permission, the 'tilted' balance of NPPF 11d is not engaged (see footnote 7 to NPPF 11d, and NPPF 182). The absence of a five year housing land supply is not therefore reason to grant planning permission where water neutrality has not been demonstrated.

Has water neutrality been addressed in any appeal decision?

At this stage we are aware of two linked appeal decisions (ref: 3277840 and 3274485) in the South Downs National Park where an inspector refused two schemes on the same site, one for a single dwelling and an alternative scheme for two dwellings. Both appeals were dismissed owing to water neutrality having not been demonstrated, with this reasoning forming the only reason the appeal for the single dwelling was dismissed.