“Provided the council, as the competent authority, is assured and satisfied with the site areas are correct and that the existing uses are appropriately precautionary, then Natural England raise no further concerns with regard to the nutrient budget. Provided the measures set out in the wetland mitigation report are secured with any planning permission, Natural England accepts the conclusion of the report that the design can achieve nitrogen neutrality in this way. To ensure that it is effective mitigation, any scheme for neutralising nitrogen must be certain at the time of appropriate assessment so that no reasonable scientific doubt remains as to the effects of the development on the international sites.”
“Article 6 … 2. Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive. 3. Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.”
“9. —(1) The appropriate authority, the nature conservation bodies and, in relation to the marine area, a competent authority must exercise their functions which are relevant to nature conservation, including marine conservation, so as to secure compliance with the requirements of the Directives. … (3) Without prejudice to the preceding provisions, a competent authority, in exercising any of its functions, must have regard to the requirements of the Directives so far as they may be affected by the exercise of those functions.”
“63. —(1) A competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which— (a) is likely to have a significant effect on a European site or a European offshore marine site (either alone or in combination with other plans or projects), and (b) is not directly connected with or necessary to the management of that site, must make an appropriate assessment of the implications of the plan or project for that site in view of that site’s conservation objectives. (2) A person applying for any such consent, permission or other authorisation must provide such information as the competent authority may reasonably require for the purposes of the assessment or to enable it to determine whether an appropriate assessment is required. (3) The competent authority must for the purposes of the assessment consult the appropriate nature conservation body and have regard to any representations made by that body within such reasonable time as the authority specifies. (4) It must also, if it considers it appropriate, take the opinion of the general public, and if it does so, it must take such steps for that purpose as it considers appropriate. (5) In the light of the conclusions of the assessment, and subject to regulation 64, the competent authority may agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the European site or the European offshore marine site (as the case may be). (6) In considering whether a plan or project will adversely affect the integrity of the site, the competent authority must have regard to the manner in which it is proposed to be carried out or to any conditions or restrictions subject to which it proposes that the consent, permission or other authorisation should be given.”
“The assessment carried out under the first sentence of art.6(3) of the habitats Directive may not, therefore have lacunae and must contain complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the proposed works on the protected site concerned.” [AG47] and: “ 101. In order to ensure that all the requirements thus recalled are fulfilled, it is for the national courts to carry out a thorough and in-depth examination of the scientific soundness of the ‘appropriate assessment’ within the meaning of Article 6(3) of the Habitats Directive accompanying a programmatic approach and the various arrangements for implementing it, including inter alia the use of software such as that at issue in the main proceedings intended to contribute to the authorisation process. The competent national authorities may be entitled to authorise such an individual project on the basis of such an assessment only if the national court is satisfied that that assessment carried out in advance meets those requirements in respect of each specific individual project. 102. In this regard, it should be noted that under Article 1(e) of the Habitats Directive, the conservation status of a natural habitat is considered to be ‘favourable’ when, inter alia, its natural range and the areas it covers within that range are stable or increasing and the specific structure and functions which are necessary for its long-term maintenance exist and are likely to continue to exist for the foreseeable future. 103. In circumstances such as those at issue in the main proceedings, where the conservation status of a natural habitat is unfavourable, the possibility of authorising activities which may subsequently affect the ecological situation of the sites concerned seems necessarily limited. 104. In the light of the foregoing, the answer to the second question inCase C-294/17 is that Article 6(3) of the Habitats Directive must be interpreted as not precluding national programmatic legislation which allows the competent authorities to authorise projects on the basis of an ‘appropriate assessment’ within the meaning of that provision, carried out in advance and in which a specific overall amount of nitrogen deposition has been deemed compatible with that legislation’s objectives of protection. That is so, however, only in so far as a thorough and in-depth examination of the scientific soundness of that assessment makes it possible to ensure that there is no reasonable scientific doubt as to the absence of adverse effects of each plan or project on the integrity of the site concerned, which it is for the national court to ascertain.”
“… if expert advice induces a decision-maker into error in carrying out the judgments mandated by article 6(3), I consider that it would be artificial and wrong to hold that the court should not characterise what has occurred as irrational. The Wednesbury error in the underlying advice creates, without more, an equivalent Wednesbury error in the evaluative assessments carried out in formulating the HRA.”
“The Advice Note has been prepared by Natural England for competent authorities as one way of ensuring that development can proceed whilst not adding to existing nutrient burdens in European marine sites.”
“4.6 For those developments that wish to pursue neutrality, Natural England advises that a nitrogen budget is calculated for new developments that have the potential to result in increases of nitrogen entering the international sites. A nutrient budget calculated according to this methodology and demonstrating nutrient neutrality is, in our view, able to provide sufficient and reasonable certainty that the development does not adversely affect the integrity, by means of impacts from nutrients, on the relevant internationally designated sites. This approach must be tested through the ‘appropriate assessment’ stage of the Habitats Regulations Assessment. The information provided by the applicant on the nutrient budget and any mitigation proposed will be used by the local planning authority, as competent authority, to make an appropriate assessment of the implications of the plan or project on the designated sites in question. Further information of this process is available here. 4.7 The nutrient neutrality calculation includes key inputs and assumptions that are based on the best-available scientific evidence and research. It has been developed as a pragmatic tool. However, for each input there is a degree of uncertainty. For example, there is uncertainty associated with predicting occupancy levels and water use for each household in perpetuity. Also, identifying current land / farm types and the associated nutrient inputs is based on best-available evidence, research and professional judgement and is again subject to a degree of uncertainty. 4.8 It is our advice to local planning authorities to take a precautionary approach in line with existing legislation and caselaw when addressing uncertainty and calculating nutrient budgets. This should be achieved by ensuring nutrient budget calculations apply precautionary rates to variables and adding a precautionary buffer to the TN calculated for developments. A precautionary approach to the calculations and solutions helps the local planning authority and applicants to demonstrate the certainty needed for their assessments. 4.9 By applying the nutrient neutrality methodology, with the precautionary buffer, to new development, the competent authority may be satisfied that, while margins of error will inevitably vary for each development, this approach will ensure that new development in combination will avoid significant increases of nitrogen load to enter the internationally designated sites.”
“4.18 New housing and overnight accommodation can increase the population as well as the housing stock within the catchment. This can cause an increase in nitrogen discharges. To determine the additional population that could arise from the proposed development, it is necessary that sufficiently evidenced occupancy rates are used. Natural England recommends that, as a starting point, local planning authorities should consider using the average national occupancy rate of 2.4, as calculated by the Office for National Statistics (ONS), as this can be consistently applied across all affected areas. 4.19 However competent authorities may choose to adopt bespoke calculations tailored to the area or scheme, rather than using national population or occupancy assumptions, where they are satisfied that there is sufficient evidence to support this approach. Conclusions that inform the use of a bespoke calculation need to be capable of removing all reasonable scientific doubt as to the effect of the proposed development on the international sites concerned, based on complete, precise and definitive findings. The competent authority will need to explain clearly why the approach taken is considered to be appropriate. Calculations for occupancy rates will need to be consistent with others used in relation to the scheme (e.g. for calculating open space requirements), unless there is a clear justification for them to differ.”
“4.45 This next stage is to calculate the existing nitrogen losses from the current land use within the redline boundary of the scheme. The nitrogen loss from the current land use will be removed and replaced by that from the proposed development land use. The net change in land use will need to be subtracted from or added to the wastewater Total Nitrogen load. 4.46 Nitrogen–nitrate loss from agricultural land can be modelled using the Farmscoper model. A study commissioned by Natural England from ADAS modelled this loss for different farm types across the river catchments that drain to the Solent (ADAS UK Ltd. 2015. Solent Harbours Nitrogen Management Investigation). 4.47 If the development area covers agricultural land that clearly falls within a particular farm type used by the Farmscoper model then the modelled average nitrate-nitrogen loss from this farm type should be used … Table 2 Farm types and average nitrogen-nitrate loss AVERAGE NITRATE-NITROGEN LOSS PER FARM TYPE IN THE SOLENT CATCHMENT AREA (kg/ha) Cereals 31.2 Dairy 36.2 General Cropping 25.4 Horticulture 29.2 Pig 70.4 Lowland Grazing 13.0 Mixed 28.3 Poultry 70.7 Average for catchment area 26.9 4.48 If the proposed development area covers several or indeterminate farm types then the average nitrate-nitrogen loss across all farmland may be more appropriate to use … … 4.51 It is important that farm type classification is appropriately precautionary. It is recommended that evidence is provided of the farm type for the last 10 years and professional judgement is used as to what the land would revert to in the absence of a planning application. In many cases, the local planning authority, as competent authority, will have appropriate knowledge of existing land uses to help inform this process. 4.52 There may be areas of a greenfield development site that are not currently in agricultural use and have not been used as such for the last 10 years. In these areas as there is no agricultural input into the land a baseline nitrogen leaching value of 5 kg/ha should be used. This figure covers nitrogen loading from atmospheric deposition, pet waste and nitrogen fixing legumes.”
“8.38 Natural England recommends that, as a starting point, local planning authorities should consider using the average national occupancy rate of 2.4 persons per dwelling as calculated by the Office for National Statistics (ONS), as this can be consistently applied across all affected areas. However competent authorities may choose to adopt bespoke calculations where they are satisfied that there is sufficient evidence to support this approach. 8.39 Concern has been raised by third parties over the use of the average occupancy rate of 2.4 for this development of eight houses. Some have expressed the view that a higher occupancy rate ought to be applied since the houses are likely to be larger than average dwellings (although it should be noted that the application is in outline form and scale and layout of the development are reserved matters). Third parties have noted that the Council used bespoke calculations when determining a recent planning application for a sheltered housing development elsewhere in the Borough. 8.40 It is acknowledged that some houses will have more than the average number of occupants. It is also of course the case that some will have less. The figure of 2.4 is an average based on a well evidenced source (the ONS) and which has been shown to be consistent over the past ten years. As stated above the Natural England methodology allows bespoke occupancy rates however to date the Council has only done so to lower, not raise, the occupancy rate and where clear evidence has been provided to demonstrate that the proposed accommodation has an absolute maximum rate of occupancy. In the case of sheltered housing which is owned and managed by the Council for example it has previously been considered appropriate to apply a reduced occupancy rate accordingly. 8.41 In all instances it is the case that the Natural England methodology is already sufficiently precautionary because it assumes that every occupant of every new dwelling (along with the occupants of any existing dwellings made available by house moves) is a new resident of the Borough of Fareham. There is also a precautionary buffer of 20% applied to the total nitrogen load that would result from the development as part of the overall nutrient budget exercise. 8.42 Taking the above matters into account, Officers do not consider there to be any specific justification for applying anything other than the recommended average occupancy rate of 2.4 persons per dwelling when considering the nutrient budget for the development.”
“The best scientific evidence available are the data that most closely align with the type of development considered, particularly in circumstances, such as the instant case where the regional variations expressed in the local data (in respect of the actual occupancy rates of four and five bedroom house) diverge from the national average.”
“The overwhelming majority of these strategic solutions, which have jointly enabled tens of thousands of dwellings, apply the ONS average of 2.4 people per dwelling to calculate impact. There are several examples where robust local evidence has led to a lower average being adopted. I am not aware of any successful attempts to employ an average greater than 2.4 people per dwelling. In so far as it is established practice to calculate mitigation requirements based on national occupancy rates, it is also clearly important that LPAs do not apply different occupancy rates within their HRAs for the same house, depending on which international site impacts are considered.”
“… other inputs to the methodology, such as the water usage figures, were not available at such a specific level, which created additional uncertainties and complexities. A decision to rely on the finer grain detail would have introduced unnecessary and unwieldy complication, as it would have required using 65 different occupancy rates across the area (13 ONS areas x 1-5+ bedroom rates). Had Natural England adopted that more complex approach, it would also have been necessary to use a per bedroom water usage rate to avoid the risk of smaller properties’ impacts being underestimated (due to lower occupancy figures and proportionally greater water consumption than larger properties). These figures are not easily obtainable …”
“The use of the best available scientific evidence here did not require the reasonable worst case scenario to be used. In any event, the situation which Dr O’Neill describes in that paragraph would not come to pass, as the methodology embeds the necessary precaution.”
“This is a practical and robust approach for several reasons. These figures were used to take account of the impact of agricultural activity which would be ongoing in the absence of development. The use of average figures accounts for the nitrogen variations that may exist between farms of the same type within a catchment, as well as temporal variations of farm operations. The actual leaching rates for any specific field or farm are difficult, time-consuming, costly to monitor and not without margins of error, moreover they are greatly influenced by short-term factors such as specific crops being grown in any season and the timing and severity of rainfall events. So, in effect, to measure a meaningful nitrogen leaching figure for a particular development site, it would be necessary to use an average derived over a significant timescale for the site. As these measurements cannot be collected retrospectively, it would introduce considerable delay, with no guarantee of accurate outputs.”
“7.— General requirements: applications for planning permission including outline planning permission (1) Subject to paragraphs (3) to (5), an application for planning permission must— (a) be made in writing to the local planning authority on a form published by the Secretary of State (or a form to substantially the same effect); (b) include the particulars specified or referred to in the form; (c) except where the application is made pursuant to section 73 (determination of applications to develop land without conditions previously attached) or section 73A(2)(c) (planning permission for development already carried out) of the 1990 Act or is an application of a kind referred to in article 20(1)(b) or (c), be accompanied, whether electronically or otherwise, by— (i) a plan which identifies the land to which the application relates; (ii) any other plans, drawings and information necessary to describe the development which is the subject of the application; (iii) except where the application is made by electronic communications or the local planning authority indicate that a lesser number is required, 3 copies of the form; and (iv) except where they are submitted by electronic communications or the local planning authority indicate that a lesser number is required, 3 copies of any plans, drawings and information accompanying the application.”
““land” means any corporeal hereditament, including a building, and, in relation to the acquisition of land under Part IX, includes any interest in or right over land;”
“The site area should include all of the land to be developed, i.e. the land upon which there is either to be operational development or a material change in use. In practice, difficulties are most often encountered in respect of access. Strictly, it is unnecessary to include the public highway within the application site when works are proposed if the works are to be carried out by the local highway authority because works by the highway authority in the public highway do not constitute development and will usually be dealt with by way of legal agreement with the highway authority. Where there is a new private access proposed involving the carrying out of operations the works will require permission and should be included within the site. It is desirable that the applicant also includes within the application site other land required for access to the development.”
“Where it can be demonstrated that the Council does not have a five year supply of land for housing against the requirements of the Core Strategy (excluding Welborne) additional housing sites, outside the urban area boundary, may be permitted where they meet all of the following criteria: (i) The proposal is relative in scale to the demonstrated 5 year housing land supply shortfall; (ii) The proposal is sustainably located adjacent to, and well related to, the existing urban settlement boundaries, and can be well integrated with the neighbouring settlement; (iii) The proposal is sensitively designed to reflect the character of the neighbouring settlement and to minimise any adverse impact on the Countryside and, if relevant, the Strategic Gaps; (iv) It can be demonstrated that the proposal is deliverable in the short term; and (v) The proposal would not have any unacceptable environmental, amenity or traffic implications.” environmental, amenity or traffic implications.”
“Officers acknowledge that the proposal could deliver 8 dwellings, as well as an off-site contribution towards affordable housing provision, in the short term. The contribution the proposed scheme would make towards boosting the Borough's housing supply would be modest but is still a material consideration in the light of this Council's current 5YHLS.”
“Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract…In addition, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of judgment can only be challenged on the ground that it is irrational or perverse”
“8.78Section 38(6) of the Planning and Compulsory Purchase Act 2004 sets out the starting point for the determination of planning applications: “If regard is to be had to the development plan for the purpose of any determination to be made under the Planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise". 8.79 This application has previously been the subject of a favourable Committee resolution to grant planning permission. The revised application proposes additional measures to address the matter of nutrient neutrality but is otherwise the same. 8.80 The site is outside of the defined urban settlement boundary and the proposal does not relate to agriculture, forestry, horticulture and required infrastructure. The principle of the proposed development of the site would be contrary to Policies CS2, CS6 and CS14 of the Core Strategy and Policy DSP6 of Local Plan Part 2: Development Sites and Policies Plan. 8.81 Officers have carefully assessed the proposals against Policy DSP40: Housing Allocations which is engaged as this Council cannot demonstrate a 5YHLS. In weighing up the material considerations and conflicts between policies; the development of a greenfield site weighted against Policy DSP40, Officers have concluded that the proposal is relative in scale to the demonstrated 5YHLS shortfall (DSP40(i)), can be delivered in the short-term (DSP40(iv)) and would not have any unacceptable environmental, traffic or amenity implications (DPS40(v)). Whilst there would be harm to the character and appearance of the countryside the unsightly derelict buildings currently on the site would be demolished. Furthermore, it has been shown that the site could accommodate eight houses set back from the Brook Avenue frontage and an area of green space to sensitively reflect nearby existing development and reduce the visual impact thereby satisfying DSP40(iii). Officers have however found there to be some conflict with the second test at Policy DSP40(ii) since the site is acknowledged to be in a sustainable location but is not adjacent to the existing urban area. 8.82 In balancing the objectives of adopted policy which seeks to restrict development within the countryside alongside the shortage in housing supply, Officers acknowledge that the proposal could deliver 8 dwellings, as well as an off-site contribution towards affordable housing provision, in the short term. The contribution the proposed scheme would make towards boosting the Borough's housing supply would be modest but is still a material consideration in the light of this Council's current 5YHLS. 8.83 There is a clear conflict with development plan policy CS14 as this is development in the countryside. Ordinarily, officers would have found this to be the principal policy such that a scheme in the countryside should be refused. However, in light of the Council's lack of a 5YHLS, development plan policy DSP40 is engaged and officers have considered the scheme against the criteria therein. The scheme is considered to satisfy four of the five criteria and in the circumstances, officers consider that more weight should be given to this policy than CS14 such that, on balance, when considered against the development plan as a whole, the scheme should be approved. 8.84 As an Appropriate Assessment has been undertaken and concluded that the development would not have an adverse effect on the integrity of the sites, Paragraph 177 of the NPPF states that the presumption in favour of sustainable development imposed by paragraph 11 of the same Framework is applied. 8.85 Officers have therefore assessed the proposals against the 'tilted balance' test set out at paragraph 11 of the NPPF. 8.86 In undertaking a detailed assessment of the proposals throughout this report and now applying the 'tilted balance' to those assessments, Officers consider that: i) there are no policies within the National Planning Policy Framework that protect areas or assets of particular importance which provide a clear reason for refusing the development proposed; and ii) any adverse impacts of granting planning permission would not significantly and demonstrably outweigh the benefits, when assessed against the policies in the National Planning Policy Framework taken as a whole. 8.87 Having carefully considered all material planning matters, and after applying the ‘tilted balance’, Officers recommend that planning permission should be granted subject to the prior completion of a planning obligation pursuant toSection 106 of the Town and Country Planning Act 1990 and the imposition of appropriate planning conditions.”