Mark Hand is Director of Wales, Northern Ireland, and Planning Aid England at the RTPI
Throughout May and June 2024, RTPI Cymru arranged a series of free lunchtime webinars from a range of speakers exploring solutions to, and learning from, the current issue of water quality in some of Wales’ most environmentally important rivers.
With thanks to our guest speakers:
- Barrie Davies MRTPI, Asbri Planning
- Ryan Norman, Dŵr Cymru Welsh Water
- Craig O’Connor MRTPI, Monmouthshire County Council
- Emmeline Brooks MRTPI and Harrison Moore MRTPI, Arup
- Annabel Graham Paul, Francis Taylor Building
- Helen Lucocq MRTPI, Bannau Brycheiniog National Park
- Gail Pearce-Taylor, West Wales Nutrient Management Board
What’s the Problem?
Human activity is releasing high levels of phosphorus into rivers via agricultural activity such as muck spreading and fertiliser use, treated sewage outflows from Wastewater Treatment Works (WwTW), untreated sewage from Combined Sewer Overflows (CSOs) or malfunctioning cesspits and septic tanks, and via highway drains.
Excessive phosphorus in rivers causes eutrophication: rapid growth of plant life in the watercourse which reduces oxygen levels below that needed by fish and other life, killing the river ecosystem.
Why is it a Planning Issue?
The 2019 Court of European Justice ruling on the Dutch Nitrogen case confirmed that the assessment of impact must be made for each plan or project via an Appropriate Assessment (AA) before giving consent. The concept of ‘nutrient neutrality’ seeks to ensure that new development proposals and water discharge permits cause no net increase in nutrients for the duration of the authorisation.
“There is an absolute bar on granting planning permission unless ‘nutrient neutrality’ is achieved, unless the development is in the Imperative Reasons of Overriding Public Interest (IROPI), there are no alternatives and compensatory measures are secured.”
Annabel Graham Paul, Francis Taylor Building
In June 2024, the case of CG Fry & Son Ltd v Secretary of State for Levelling Up & Communities and Anor [2024] EWCA Civ730 confirmed that the requirement for an AA applies to outline, reserved matters and discharge of conditions precedent decisions, even if the condition does not relate to drainage matters.
There are three ways new development can be ‘scoped out:
- The development is not a source of phosphates;
- There is no pathway for phosphorus from the development to enter a SAC river;
- Measures are secured to achieve ‘nutrient neutrality’.
Natural Resources Wales’s (NRW) review identified that five of Wales’ nine Special Area of Conservation (SAC) rivers were failing to meet targets: the Rivers Cleddau, Usk and Wye were experiencing widespread or severe failings, with 88% of the River Usk affected. Failings were confined to the lower reaches of the River Teifi and localised failings were affecting 38% of the River Dee.
The Initial Impact
NRW communicated these issues to the affected Local Planning Authorities in January 2021, resulting in an immediate halt on decisions on all planning applications while everyone got to grips with the scale of the problem and how to address it.
Planning Officers had no prior understanding of the cause or extent of the problem, the implications, the timescales or the solutions. Consequently, they were unable to advise applicants and agents, Elected Members or other stakeholders on how to address the problem or how long it would take. Similarly, NRW Officers were unable to provide advice initially.
There was an immediate impact on LPA workload, with delays in decision-making and extra work liaising with other parties to establish governance arrangements, identify solutions, brief Elected Members and update stakeholders, undertake Habitat Regulations Assessments, and understand the implications for emerging Local Development Plans (LDPs).
While most stakeholders acknowledge that the delays in decision-making were for good reason (environmental protection), there was a significant economic cost and risk to parties who had borrowed money to finance projects.
Solutions-based collaboration
This crisis resulted in exemplary collaborative working between Local Planning Authorities (LPAs), Dŵr Cymru Welsh Water (DCWW), Natural Resources Wales, Council Ecology Officers, planning consultancies and developers. Although it took time to reach the solutions now identified, everyone was working at pace to work through a number of challenges.
“Significant affordable housing need means it simply isn’t acceptable to sit and wait for solutions to appear.”
Barrie Davies, Asbri Planning
Information sharing ensured evidenced-based decision-making, consistent approaches and sharing of solutions. NRW provided LPAs with mapping to pinpoint the affected river catchments. DCWW provided mapping of the areas served by different Wastewater Treatment Works (WwTW) and the location of their discharge points to further understand which areas were within scope.
The First Minister called Phosphate Summits in Summer 2022, Spring 2023 and Winter 2023. Following the first Summit, the Welsh Government provided funding towards Nutrient Management Boards, which were tasked with producing Nutrient Management Plans by March 2025.
DCWW published its Source Apportionment GIS (SAGIS) evidence in February 2023, providing detailed evidence of the cause of pollution in different stretches of the rivers.
DCWW’s action plan includes £100m investment (£40m to reduce CSOs and £60m to upgrade WwTWs). NRW is due to complete permit reviews this Summer.
In March 2023, WG published a “Failing SAC River Catchment Action Plan” setting out eight actions to support the delivery of affordable homes:
The future
The ability of planners throughout the sector (LPAs, NRW, DCWW, consultants, developers, HBF) to collaborate to seek solutions has been key to facilitating development proposals.
Despite the significant successes to date in ensuring that much-needed new development can proceed without harming the river SACs, a number of key challenges remain:
- Resource-stretched LPAs and expert advisors (such as ecology officers and NRW) have significant extra work in assessing additional information and undertaking Habitat Regulations Appraisals;
- There is a lack of certainty over the funding for the West Wales NMB beyond March 2025;
- The phosphate issue has highlighted longstanding under-investment in drainage infrastructure, the number of authorised and unauthorised CSO events throughout the UK and concerns about regulation of farming practices to date.
More significantly, nutrient neutrality alone will not improve the condition of our rivers. We need to move from the essential short-term measures to a long-term restorative process.
“Phosphorus in the watercourses is a bit like flooding and climate change. It’s a point at which something as abstract as the nature emergency becomes tangible as an emergency in the everyday. It’s a sign that ecological systems are out of balance and reaching a dangerous tipping point…we’re using an essential resource at a totally unsustainable and damaging rate and threatening ecosystem integrity as well as damaging our own health and wellbeing. Like climate change, we are the unwitting architects.”
Helen Lucocq, Bannau Brycheiniog National Park Authority
The long-term solution lies not in dealing solely with the symptoms of the problem, but in dealing with the causes.
The webinars can be viewed here.
