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Here, attorney Harvey Davies of Thrings Agriculture explains how the nutrient impact of new developments complicates planning approvals and how farms can mitigate the impact of their projects.
Q: We recently submitted an application to council for advance notification under an approved agricultural development for a livestock housing building. The local planning authority responded and decided that prior approval was not required.
However, in the authority’s notice of determination, there is an “informative” which states that it is a condition of any development, which is likely to have a significant effect on a European site, that the works not shall not commence until the developer has received written notification of approval from the local planning authority (LPA) under Regulation 77 of the Habitat and Species Conservation Regulations 2017 (the “Regulation on habitats).
Apparently we have to demonstrate ‘nutritional neutrality’ to protect a special area of conservation nearby – what does that mean?
A: As the information states, under the Habitats Regulations, the council must be satisfied that any new development which may have a significant effect on a European site will not adversely affect the integrity of that site. .
European sites are protected under the Habitats Regulation and include sites designated as Special Areas of Conservation (“SACs”). Recently, the number of European sites that are in an unfavorable condition and failing to meet their conservation objectives has increased significantly and this issue is now having a substantial effect on planning and development in 74 LPAs.
See also: Business Clinic: can a water pipe be built on the proposed site?
The new agricultural building is intended for animal husbandry and therefore potentially generates additional nutrients entering the watershed of a SAC that is in an unfavorable state. Therefore, Council is required to undertake an appropriate assessment of the implications of the new building for the CCS in view of its conservation objectives.
The new building may be aimed at helping existing farms become more efficient or easier (such as improving livestock handling), in which case it should be straightforward to demonstrate that there will be no negative effect on SAC.
However, if the new building results in the expansion or intensification of agricultural operations (i.e. increasing the number of livestock on the farm), mitigation measures should be considered to show that the development will not result in any overall increase in nutrient pollution affecting the SAC. ; in other words, that it can demonstrate “nutritional neutrality”.
While some councils are beginning to develop nutrient credit programs, allowing developers to purchase credits to offset the additional nutrient load caused by their development, these programs are rare and often restricted to residential development.
Thus, the development of a new farm building will need to consider on-site mitigation measures to achieve nutrient neutrality. These measures must be added to existing habitat creation projects; and cannot be claimed retrospectively from a recent change in land use (e.g. recently planted forest).
They must also be effective as long as the farm building is used for its original purpose.
Further details on how the nutrient effects and calculations relating to a particular development and associated mitigation measures can be found in the relevant Natural England (NE) and/or planning authority guidance. local for the designated European site concerned. The following are examples of mitigation measures:
- Abandoning intensive agricultural practices on a piece of land and converting it to semi-natural habitats (e.g. natural wetlands, woods or grasslands)
- A processing wetland such as an integrated constructed wetland that is specifically designed to remove nutrients; and
- Agricultural management measures such as land fallowing, cover crops, provision of buffer strips can provide temporary short-term (fixed) mitigation before other measures in perpetuity are implemented and come into play. in force.
Prior to submitting an application to the board for approval, the applicant may, under Bylaw 76, request an opinion from NE. If sufficient information has been provided, then NE must notify its opinion to the claimant and counsel.
To obtain written council approval under Regulation 77 of the Habitats Regulation, an application will need to be submitted to council giving details of the development. This must be accompanied by a copy of any relevant notification by NE under Rule 76, as well as any fees payable.
The Board shall consider any representation made by NE and may then give written notification of its approval of the new building only after satisfying itself that it will not adversely affect the integrity of the CAS.
All mitigation measures in support of the claim for compensation for the effects of the new building will need to be secured by a legal agreement s106 with the council.
Nutrition neutrality poses considerable challenges for the development of rural areas and is not an issue that will soon disappear. Early advice will ensure that any issues that arise are resolved quickly and without jeopardizing your farm’s development plans.
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