Significant update relating to phosphates in Somerset and Permitted Development Right applications.

A review of Natural England guidance about the determination of permitted development rights may impact those whose plans have stalled since initial guidance was published.  

“The initial guidance followed the European Court of Justice ruling, in a case known as Dutch N, concerning nitrogen and phosphates used in fertilisers for farming. The ruling places limits on them to prevent the pollution of the wider environment,” explains Nicola Quick, an associate and planning specialist in Carter Jonas’ South West Rural team. 

Following the decision, in August 2020 Natural England advised Somerset Local Planning Authorities (SLPA) that, due to the unfavourable conditions of the Somerset Levels and Moors Ramsar site, before determining a planning application that may give rise to additional phosphates within the catchment, competent authorities should undertake a Habitats Regulations Assessment (HRA), to ensure the project was nutrient neutral. For permitted development right applications, this meant making a subsequent Regulation 77 application to deal with phosphates.  

However, Natural England and SLPA have both now confirmed that, in the majority of cases in Somerset, permitted development rights applications are no longer required to make a subsequent Regulation 77 application. 

Both bodies have concluded that, apart from in limited circumstances, the ruling does not apply to Ramsar sites, but only to Special Areas of Conservation (SAC) or Special Protection Areas (SPA). Significantly, Somerset is the only place in England where the phosphate issue relates to Ramsar sites.  

“Until now, it had been thought that the guidance was applicable to Ramsar sites and was all-encompassing, applying to full planning applications and permitted development right applications. In relation to the latter, applicants have been required to make separate, additional Regulation 77 applications, causing delays and additional cost to an application. For example, this requirement has impacted Class Q applications allowing an agricultural building to be converted to a dwelling/s. 

“This review could have a significant bearing on many prior notification applications in the region. We advise anyone who has recently had a permitted development right application determined, or is making or considering future applications, to seek specialist advice, to see how their projects might be impacted by the revised guidance.”