Whatever
it is that you do your working life will most likely have a rhythm to it. A
senior planning officer, for example, might have their week influenced by the monthly
committee cycle. A senior planning consultant, for further example, might have
their week influenced by the monthly fee forecast. My working week is typically influenced by what I get the most emails about, which does ebb and flow over time. The frequency and concentration of emails affords the opportunity to sniff out the ‘live issues’ affecting the
development industry at any given point in time.
I
have further taken to categorising these live issues into a 'Top 3', 'Top 5' and 'Top
10' so that if, for example, civil servants get 15 minutes with the Minister on a Monday morning they
might be encouraged to bring three things to his attention; if they get 30 minutes, five
things; if they get an hour, well you get the gist...
As
of right now my inbox is mostly occupied by the ability of builders to discharge foul drainage conditions, which, when you sit down and think about it, raises some fairly fundamental questions, not least of which is why we have allowed sewage overflows that are not being
enforced against to prevent the occupation of new homes.
As Joey Gardiner writes in his recent (paywalled*) piece for
Planning, “a combination of regulatory failure in the water industry, greater
public concern over river pollution and Labour’s housing growth drive appear to
be rapidly pushing the previously niche issue of foul-water treatment to the
top of the agenda for planners and developers. Councils in affected areas face
a stark choice – risk pollution or put incoming applications on hold.”
It
is an issue emblematic of systemic and regulatory failings over many years that
somehow only the planning system manages to expose and that somehow only the
planning system is expected to correct, and it has come to the fore now because
of an appeal decision in March dismissing the discharge of a foul drainage
condition to an outline permission for 38 dwellings in Wealden (Land at Old
Orchard House, Horebeech Lane, Horam TN21 9DZ (3343709)).
The basis of which are as follows:
- A condition requiring the approval of a foul water scheme was imposed at the outline stage because the statutory undertaker Southern Water (SW) at the time raised concerns about capacity. (DL7)
- SW’s stance had changed by the time the appellant sought to discharge the condition because enough capacity existed by then to deal with the minimal flows from this development. (DL13)
- As stated in the decision “SW is obliged by the Water Industry Act 1991 (the WIA) to accept flows and provide the necessary capacity to drain property within their area, with charges to provide any upgrades needed. Section 2 of the WIA has a general duty that the Secretary of State secures that the functions of the water and sewerage undertakers are properly carried out, in the manner which he or it considers is best calculated. If SW fails to make necessary upgrades to prevent foul sewerage discharge, then OFWAT has a duty to step in as the regulator.” (DL19)
The
issue was the degree to which SW is currently meeting those statutory duties:
- Rainwater ingress into the foul surface water system causes overflows beyond those permitted by the relevant water regulatory regime. The resultant overflows discharge combined flows including sewage. (DL8)
- Third party evidence showed overflow spilled occurred around 45 times a year, for hundreds of hours, causing local concerns. (DL9)
- SW “emphasises that discharges …are attributed to rainwater, not [development] growth, and the answer is to prevent rainwater getting into the sewer network.” (DL14)
- The Inspector accepted that the scheme would result in proportionally limited increases in inputs into the system, but given the system is already at times overwhelmed by rainfall considered this still was an adverse impact. (DL15)
- The Inspector noted the developer may be unable to resolve this, starkly noting “it may not be possible to persuade SW to resolve a problem it does not believe exists.” (DL30)
On policy, he found that since the NPPF (paragraph 201) is states
that LPAs should assume that other regulatory regimes will operate
effectively rather than must, he could depart as a matter of planning
judgment: “Framework
paragraph 201 states the focus of decisions should be on whether a development
is an acceptable use of land, rather than the control of processes or
emissions, where subject to separate pollution control regimes. Decisions
should assume the regimes will operate effectively. This is policy that regimes
‘should’ be relied upon, but not that they shall or must be relied upon. The
weight attributed to is a matter for the decision maker, so I do not agree, a LPA has no jurisdiction over the matter.” (DL18)
Overall
then, the Inspector considered it had not been demonstrated the proposed scheme
would not result in additional pollution. (DL31)
He
noted that such a decision conflicted with the directly applicable policy in the
NPPF, but took support from the overall objective of the NPPF paragraph 198)
that decisions should ensure new development is appropriate taking into account
the likely effects (including cumulative) of pollution on the natural
environment. (DL32)
To
recap then:
- The SW position was that there was capacity in the network.
- The local pumping station and sewage works are overwhelmed by extreme rain events, and the overflows include sewage pollution. Whilst seemingly beyond the level of discharge permitted, SW has no plans to invest to resolve this, and the EA is not taking any direct enforcement action.
- The Inspector chose not to follow the policy in NPPF because he thought the regulatory regime was not preventing pollution.
“This could be the next nutrient neutrality,” Mark Gay of
Terra Strategic told Joey Gardiner, but unlike nutrient neutrality, an issue only in Special Protection Areas, waste water has the potential to constrain development everywhere..
Joey’s piece states that Anglian Water’s latest five-year
regulatory settlement, for example, does not provide it with enough money to invest in waste
water treatment capacity, leaving it able to support only 175,000 of the
300,000 homes needed in its jurisdiction by 2030.
Stacey Robins, Head of Planning & Environmental Services at Wealden, told Joey that applications for “a couple of
thousand units” are currently held up by Grampian conditions in Wealden with a
small number having been discharged where applicants have developed other
solutions to deal with the waste. In addition, Stacey said other councils in
the 20-strong SW stakeholder group are beginning to apply the same approach. “The
ripples from this are going out and out”, he said.
I spoke to a planning solicitor based in East Anglia today who referred
to a client in that part of the world having over 1000 homes delayed by this issue. That solicitor also made the point that in affected areas (as with nutrient neutrality) it is an obstacle to even contemplating the submission of planning applications because why would one spend, say, £500,000 on securing consent to build homes that cannot be occupied?
The legal basis of all of this** is set out in this Gowling blog, but basically, as is stated, "by objecting to planning applications on the basis of
insufficient foul water capacity, sewerage undertakers are effectively
admitting to being in breach of their forward planning duty under section 94(1)
of the Water Industry Act, but neither the LPA nor the developer has any direct
legal recourse in respect of that breach."
As Joey writes at the end of his piece, “it seems unlikely
that any solution will be found without the Government deciding to grip the
issue” and hopefully his piece convinces the Government to do just that. What though can and should be done if it does?
Whilst by all accounts it would be unusual to do so, OFWAT
must surely reopen it’s regulatory determination for 2025-30 and review how it
facilitates its growth duty more generally.
Doing so might allow the NPPF to be amended such that LPAs must
assume that other regulatory regimes will operate effectively, removing the
need for Grampian conditions, a message that could be reinforced by way of a
Written Ministerial Statement.
Whilst all of that is being worked through the sewage
undertakers could be compelled to review holding objections to set out explicitly
when the treatment plans in question will be upgraded and the actual risk of actual
harm generated by new development in the meantime, which could then be taken
into account by decision-makers in the planning balance.
If you are reading this and can help to either shine a light on
the scale of the problem or help to develop practical ways of working through
it then do please let me know.
Even if you cannot then I encourage you to imagine that you have
a housebuilding business the future of which hangs upon completing a
development that has now been delayed for an unspecified period, and then reading that "millions of
tonnes of treated sewage sludge is spread on farmland across the UK every year
despite containing forever chemicals, microplastics and toxic waste because of outdated
regulations that experts agree are not fit for purpose."
Something stinks…
*Do please let me know if you would like a copy.
**I obviously focussed on residential development in this blog, but the issue affects commercial development to arguably a greater degree because such development does not benefit from the same statutory connection rights.
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