Appeal 6006897

The appeal is dismissed.

For avoidance of doubt and to identify which of the properties at [site address] are subject of this appeal the address is as it appears on the planning and appeal statements in support of the planning application.

The property was converted from an agricultural building to a holiday let in 1998 and benefits from an extant planning permission1. The appellants are now seeking to use the property as their main residence. The appellants have evidenced that the holiday let has, until recently, been used for 70% of the year with occupancy rates of up to 4 persons.

The main issue is whether the proposed change of use would have an effect on the integrity of the [name] and Moors Ramsar site.

The appeal site is within the catchment area of the [name]. These are a series of wetlands located in Somerset. The landscape includes rivers and wetlands, which are artificially drained, irrigated and modified to allow productive farming.

The Habitat Sites are protected by the Conservation of Habitats and Species Regulations 2017 (as amended) (“the Regulations”). In order for proposal to be acceptable, these Regulations require it to be demonstrated that it will have no likely significant effect on the [name], either alone or in combination with other proposals. If it cannot, measures must be proposed to remove the impact, for 1 Ref. 012451/002 example, a satisfactory scheme of mitigation (i.e. that can demonstrate the nutrient neutrality of the proposed development), or the proposal should be refused.

Currently, there are high nutrient inputs into the water environment of the [name] catchment with evidence that this is causing eutrophication of the [name]. These nutrient inputs are currently thought to arise predominantly from wastewater from existing housing and agricultural sources. This nutrient enrichment is contributing towards adverse impacts on the protected habitats and species within the [name].

Natural England advises that the addition of residential development within the catchment area of the [name] is likely to have a significant effect on them either alone or in combination with other proposals.

Adopting a precautionary principle and without mitigation, new residential development is likely to have a significant effect on the sensitive interest features of the [name], from increased nitrate and phosphate levels either alone or in combination with other proposals causing harm to nature conservation. It is necessary for me, as the competent authority for the purposes of the Regulations to conduct an appropriate assessment (“AA”) in relation to the effect of the development on the integrity of the [name].

The application is not supported by a Nutrient Neutrality Assessment and [name] (“NNAMS”) to quantify the level of phosphate generated by the proposed change of use. Whilst the property is already connected to the mains sewer, the appellants are aware that there are acceptable phosphate mitigation schemes available in the catchment. However, it is contended that it is unlikely that there would be an increase in phosphate discharge from the property.

It would not be appropriate to attach a planning condition seeking the purchase of credits. To carry out an AA there must be clear evidence of where, and how mitigation will be secured. This is to ensure that the proposed measures are sufficient, secured, deliverable and capable of being enforced. The competent authority must employ the precautionary principle to prevent harm to [name] and avoid granting a permission that cannot be lawfully implemented. In this instance, no specific scheme has been secured, leaving a significant gap in the information needed to confirm effective mitigation.

As the competent authority, I must be satisfied at the point of making my Decision that the proposal will not compromise the integrity of the [name]. Without empirical evidence indicating that there would be no net increase in phosphate discharge from the property, and / or confirmation of a defined source for phosphate credits, the level of scientific certainty demanded by the Regulations is not met.

For the above reasons, the proposal would adversely affect the integrity of the [name] and is therefore in conflict with Policies 5 and 8 of the Mendip District Local Plan Part 1: Strategy & Policies 2006-2029 (2014) and paragraph 182 of the National Planning Policy Framework (“the Framework”) which along with other matters requires that change of use proposals demonstrate that should they proceed it will not result in any adverse impact on the integrity of national and international wildlife and landscape designations.

The Council has not contended that it is currently unable to demonstrate a 5-year supply of housing land. Therefore, paragraph 11 d) of the Framework is engaged. Irrespective of this the application of policies in the Framework as far as they protect habitat sites provide a strong reason for refusing the development proposed. This is reiterated in paragraph 195 of the Framework and as such, the proposal would not benefit from the presumption in favour of sustainable development set out in the Framework.

Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires that decisions on planning applications should be made in accordance with the development plan unless material considerations indicate otherwise.

I am unable to conclude that the development would not add to the unfavourable phosphate levels within the [name]. The harm associated with these matters and conflict with the development plan and similar aims of the Framework, attract substantial weight.

Consequently, in the circumstances of this case, the material considerations do not justify a decision other than in accordance with the development plan taken as a whole.

For the above reasons, I conclude that the appeal should be dismissed.