Unique appeal decision sees development saved by farm’s innovative environmental actions

Thrings Agriculture and Farming environment act

Farmers could find themselves able to mitigate environmental issues caused by potential development following the approval of 83 new homes in West Sussex.

An initial decision by Horsham District Council in April 2021 saw the “Land at Duckmoor” development refused, with the subsequent successful appeal needing to overcome the effect of the development on protected sites and, in particular, whether the scheme could demonstrate ‘water neutrality’.

Natural England released a position statement in September 2021, which advised that within the Sussex North Water Supply Zone, where the proposed development was based, it “cannot be concluded that existing water abstraction within this zone was not having an adverse effect on the integrity” of the above-mentioned sites.

Given the unfavourable condition of the protected sites, Natural England required that any proposed development in the Supply Zone must demonstrate water neutrality, which could be achieved by minimizing water usage in the new build and mitigating the remaining impacts off-site.

In this case, the proposal was to use water saving fixtures and fittings, water efficient utilities and rain-harvesting tanks for each dwelling for toilet flushing and washing machines which would save an average of 6,000 litres per day across the development. However, further mitigation in the region of 10,000 to 11,000 litres of water per day would be needed to meet water neutrality.

A nearby dairy farm comprised a water-intensive enterprise with an average of 690 cows and was reportedly using an average of 42,000 litres of water a day. The owner of the farm has submitted plans under a separate application for the erection of a new building and a 473,000-litre water collection tank with the aim of harvesting rain water which would reduce the farm’s mains water consumption.

To secure the benefit of these works as mitigation for the residential development, the following was required:

  • Evidence of the claimed reduction in water usage resulting from the proposed works;
  • Compliance with Natural England’s guidance, including a ‘precautionary buffer’ of at least 20% (2,794 litres per day);
  • Completion of a s106 agreement executed by the dairy farm owner as well as the developer of the residential site;
  • Imposition of a planning condition on the residential development stating that it could only be started once the specified works at the farm had been granted planning permission.

The unique circumstances, with the farmer providing the solution to the environmental challenge faced by the developer, saw the unexpected success for the appeal, with the new development being demonstrated to meet the requirements of water neutrality, mitigating the water usage of the proposed site, thereby avoiding any adverse impacts.

Harvey Davies from the Agriculture team at Thrings Solicitors, specialising in planning and environmental issues and himself a farmer, said: “Water neutrality has proven to be, like nutrient neutrality, a very difficult challenge for residential developers as a result of the Habitats Regulations. However, once again, it is a farmer who is providing the innovative solution to unlock development.

“It also highlights the importance of understanding value of your natural capital. In this case, some adaptations to the farming system to make better use of rainwater have unlocked a very valuable local development. This demonstrates how landowners can generate far more lucrative returns on their natural capital from these emerging private markets than they might expect from government schemes such as the SFI and Countryside Stewardship.”

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