Legal Advice
The Council has sought legal advice from Counsel on some key issues.
This advice sets out that ‘pre-commencement’ conditions relating to affected developments within the catchment area, cannot be discharged until an Habitats Regulations Assessment has been undertaken.
This advice covers whether, or not, it is legally possible for Somerset Council to treat past improvements to wastewater treatment by Wessex Water as mitigation for future housing development within the catchment area of the Somerset Levels and Moors.
Somerset Nutrient Neutrality Legal Opinion March 2025
At the Strategic Planning Committee meeting on 17 March 2025, Councillors were informed that a legal opinion had been commissioned. The opinion sought to clarify the extent to which Wessex Water’s investment, in wastewater treatment work upgrades, can be relied upon as mitigation for the purposes of undertaking an ‘appropriate assessment’ under the Habitat Regulations.
Officers are working through the next steps and collating the evidence required, as advised in the opinion. At the current time it remains necessary for impacted developments to demonstrate nutrient neutrality and secure the required phosphate mitigation, in order to secure planning permission.
Prior Approvals and Regulation 77
Natural England in conjunction with the Somerset Planning Authorities has reviewed the role of the Regulation 77 submission. This has been done as a measure to secure nutrient neutrality mitigation by way of the application of a Habitat Regulations Assessment.
The guidance upon the relationship between “permitted development”, the development approved by the Town and Country Planning (General Permitted Development) Order 2015 (as amended) and biodiversity is dealt with by ODPM Circular 06/2005 / Defra Circular 01/2005 “Biodiversity and geological conservation – statutory obligations and their impact within the planning system.”
The Circular applies to candidate Special Areas of Conservation, Special Areas of Conservation, and Special Protection Areas as a matter of law, and to Ramsar sites and potential Special Protection Areas as a matter of policy.
Paragraph 5 of the circular confirms that:
“As a matter of policy, the Government has chosen to apply the procedures described below, unless otherwise specified, in respect of Ramsar sites and potential SPA’s (pSPA’s), even though these are not European sites as a matter of law. This will assist the UK Government in fully meeting its obligations under the Birds Directive and Ramsar Convention.”
However, in relation to permitted development, Paragraph 43 goes on to state:
“Regulation 60 imposes controls on all permissions granted under the GPDO to ensure that any permitted development is not in breach of the terms of Article 6 of the Habitats Directive. This regulation prevents any development which is likely significantly to affect a European site, alone or in combination with other plans or projects, and is not directly connected with or necessary to the management of the site, from commencing unless the local planning authority has ascertained, after consulting English Nature, that such development would not adversely affect the integrity of the site. It should be emphasised that the condition does not automatically withdraw permitted development rights for such developments, but instead requires them to be subject to a prior approval process. This regulation does not apply to pSPA’s and Ramsar sites as a matter of policy.”
Regulation 60 of the Conservation (Natural Habitats & c) Regulations 1994 (and its requirement for further submissions under Regulation 62) referred to in the Circular has been replaced by Regulations 75 and 77 of The Conservation of Habitats and Species Regulations 2017.
Having taken advice on the matter the Planning Authorities position is that there is no requirement to assess the Likely Significant Effects of development approved under the General Permitted Development Order upon the Somerset Levels and Moors Ramsar site. Therefore, submissions under Regulation 77 will not be sought as part of any decision notice. There will also be no requirement for prior approvals within the risk area to be subject to a Habitats Regulation Assessment.
The River Axe comprises a Special Area of Conservation. Any development approved under the provisions of the Town & Country Planning (General Permitted Development) Order 2015 (As amended) is the subject of Habitats Regulations Assessment by way of a Regulation 77 Application.