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The recent case of Ward v Secretary of State for Housing, Communities and Local Government [2024] has highlighted that only lawful developments will be exempt from the requirement to demonstrate water neutrality.
The case
The case began with a planning application submitted in 2018 for a dwelling and stable block on agricultural land in Horsham.
The application was refused in 2019 on the grounds that the proposed development was unsustainable. The refusal was appealed to the Planning Inspectorate, however, due to delays caused by the pandemic, the appeal decision was severely delayed, with the appeal not being heard until 2022.
Two things happened during the extended delay. In December 2020 the landowner had moved onto the land and was living in a caravan. Then in September 2021 Natural England issued water neutrality guidance for the catchment in which the land was located for conservation reasons.
That guidance advised that new developments would need to demonstrate water neutrality. Water neutrality is achieved where the use of water in the supply zone before the development is equal to or less than after the development.
The Applicants submitted a Water Neutrality Statement stating that their occupation of the site prior to the publication of the Natural England guidance removed the need for an appropriate assessment because the development would simply maintain the status quo with regards to water consumption.
Appeal to inspector
At the appeal hearing in 2022 the Natural England guidance was a material consideration to be considered by the Inspector. Due to the relative timing of the Appellant moving on to the site and the issue of the Natural England guidance, the Appellant argued that the guidance did not apply to their appeal.
In contrast, Natural England argued that unless the Appellant could demonstrate that their occupancy of the land was either (1) lawful because it had the benefit of a planning permission or (2) their water consumption was otherwise accounted for, the development described in the appeal must achieve water neutrality.
The Inspector followed the Natural England guidance and concluded that the Appellant’s occupation of the land was unlawful, so their water consumption was not otherwise accounted for. The Appeal was refused on, among other things, water neutrality grounds. Appeal to the High Court.
The Inspector’s decision was challenged in the High Court. The court upheld the decision of the Inspector’s decision, concluding the Inspector had dealt correctly with the arguments on water neutrality.
What this case means
The Ward case confirms that when a water neutrality mitigation strategy is being proposed, only the consumption from existing lawful developments can be taken into account.
For proposed developments on land in catchments where Natural England has issued water neutrality guidance, an applicant needs an effective water neutrality mitigation strategy, and a water neutrality mitigation strategy will not be effective if it relies on a reduction of water consumption arising from an unlawful development located elsewhere in the catchment.
Should you wish to discuss any of the issues raised in this article, please contact Fergus Charlton.
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