Developments Within the Catchment Area of the River Mease Special Area of Conservation

Lastest Information:

River Mease - Statement (PDF Document, 0.1 Mb)

River Mease Water Quality (Phosphate) Management Plan (PDF Document, 0.6 Mb)

River Mease - Appendix 1 - Diffuse Water Pollution Plan (PDF Document, 1.2 Mb)

River Mease Water Quality (Phosphate) Management Plan Appendices (PDF Document, 0.5 Mb)

River Mease Water Quality (Phosphate) Management Plan Appendices (PDF Document, 0.5 Mb)

River Mease - Press Release

The River Mease Special Area of Conservation is a European designation, part of which falls within the administrative district of North West Leicestershire (see River Mease SAC Catchment Area (PDF Document, 0.2 Mb)). Special Areas of Conservation (SACs) are strictly protected sites designated under the EC Habitats Directive and the designation includes the River Mease and its tributaries. This SAC is also a site of Special Scientific Interest (SSSI).

River Mease Special Area of Conservation is classified on the basis of : -

- floating formations of water crowfoot (Ranunculus) of plain and sub-mountainous rivers;
- populations of bullhead (Cottus gobio)
- populations of spined loach (Cobitis taenia)
- populations of white-clawed crayfish (Austropotamobius pallipes);

and the river and adjoining land as habitat for:
- populations of otter (Lutra lutra)

Further information on the background to the SAC designation can be found on the Joint Nature Conservation Committee website at:-
www.jncc.gov.uk/protectedsites/SACselection/sac.asp?EUCode=UK0030258

Further information on the background to the SSSI designation can be found on the Natural England website at:-
www.english-nature.org.uk/special/sssi/unitlist.cfm?sssi_id=2000416

Where development is proposed within the SAC designation in its administrative area, the District Council as the competent authority under the EC Habitats Directive is required to prepare an Appropriate Assessment to assess the impact on the integrity of the European site. Part I B of ODPM Circular 06/2005 Biodiversity and Geological Conservation - Statutory Obligations and their Impact within the Planning System describes the procedure for the consideration of plans and projects likely to affect European and Ramsar sites. The procedure is summarised in the flow chart in Figure 1 of ODPM Circular 06/2005 .

In order to prepare the necessary Appropriate Assessment the District Council requires (Under Regulation 48(2) of the Conservation (Natural Habitats & C) Regulations 1994) that in relation to any development within the River Mease Special Area of Conservation Designation, that all applications are accompanied by a report demonstrating that the proposed development would have no adverse impact on the integrity alone of the River Mease SAC or in combination with other proposals. Any applicant is likely to need to appoint expertise in ecology, drainage, water quality and or hydrology to assist in the preparation of such a report.

The scope of the report should address the following matters:

- Water Quality (in relation to the relevant targets in the sites conservation objectives)
- Water Volumes (in relation to the relevant targets in the sites conservation objectives)

In relation to these matters Natural England point out that recently new information has come to light regarding the factors affecting the ecological health of the River Mease SAC. As a result of analysis undertaken by the Environment Agency it is understood that the Sewage Water Treatment Works in the Mease Catchment do not have the technology required to treat water to a level sufficient to ensure that new discharge does not contribute to the current elevated (above 0.06 mg/l) levels of Phosphate in the River Mease. Essentially, therefore, unless an applicant can demonstrate no adverse impact on the River Mease Special Area of Conservation, an application is likely to be refused.

Accordingly, prior to the submission of a formal application you are advised to discuss your proposals with the relevant contacts at Natural England and the Environment Agency as follows :-

Natural England
Block 7
Government Buildings
Chalfont Drive
Nottingham
NG8 3SN

Email: eastmidlands@naturalengland.org.uk

Tel No: 0300 060 6000

Geoff Platts
Environment Agency
Trentside Offices
Scarrington Road
West Bridgford
Nottingham
NG2 5FA

Email: geoff.platts@Environment-Agency.gov.uk

Tel No: 0115 846 3622

Applicants are also strongly advised to discuss potential applications in the River Mease catchment area with the District Council before submitting a planning application. Please call 01530 454665 or 01530 454666 in the first instance.

Information correct as at 11 December 2009

LEGAL OPINION

In relation to the above information, the District Council has now received legal opinion from David Elvin QC relating to the determination of planning applications where the development would affect a designated special area of conservation under the Habitat Directive 92/43/EEC.

The background and summary of advice and conclusions received from David Elvin QC are highlighted below. The full opinion can be viewed River Mease - Opinion of David Elvin QC (PDF Document, 0.5 Mb).

"Introduction
1. I am asked to advise North West Leicestershire District Council ("the Council") on a series of issues arising with regard to Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora of 21 May 1992 ("the Habitats Directive") and the UK transposing regulations, the Conservation (Natural Habitats &c.) Regulations 1994 ("the Habitats Regulations").

Background
2. I am instructed that the Council's Ashby Area Development Control team has outstanding undetermined major and minor planning applications (including large housing and retail schemes) which have objections from the Environment Agency and Natural England, including applications which have been determined but no decision notice has been issued (e.g. as no S106 has been completed), s. 73 applications, and applications where there are claimed to be "fallback" positions.

3. The foul drainage for existing and proposed future development in Ashby is to the Packington Sewage Treatment Works ("PSTW") owned and operated by Severn Trent Water Ltd, which in turn discharges into the River Mease via a tributary the Giliwiskaw Brook, which are designated a Special Area of Conservation ("SAC") and SSSI which was designated a "European Site" for the purposes of the Habitats Regulations in 2004 or 2005. The internationally important interest features of the River Mease SAC are the habitat itself and the presence of spined loach and bull head fish, white clawed crayfish and otter, the fish species being the two primary notification features of the SAC.

4. I am instructed that the River Mease SAC is currently in an "unfavourable" condition, primarily, due to poor water quality arising from discharges and other sources. Essentially the river is at saturation point in terms of the amount of treated effluent it already receives, and is currently failing its water quality targets for phosphate. Of particular importance are the very high levels of ortho-phosphate in the river and the Gilwiskaw Brook. Elevated levels of phosphates in the river are harmful because it encourages the growth of algae which can reduce the dissolved oxygen content in the river. Current evidence from the EA is that by far the greatest contribution to ortho-phosphate loads in the Gilwiskaw Brook is from the PSTW although there are other sources, particularly from agriculture.

5. As a result of difficulties which have arisen with regard to the impact of the application/proposals mentioned above on the SAC, there is pressure from competing housing and retail developers for the Council to clarify its position on the Habitats and SAC issues.

6. I shall deal in a separate opinion with the specific claim by one developer claims to have favourable advice from Leading Counsel that existing use rights are protected by having regard to the "fallback" position which does not require a full assessment (because of the fallback position) on impact in a subsequent application. For reasons I set out there and below, I do not agree with that view.

Issues
7. The issues I am asked to advise on at the present time are, in the context of the application of the Habitats Directive and Regulations, the following:
(1) the correct approach to take as a matter of law to a the following cases:
(a) planning application where a fallback position is claimed, or exists; and
(b) applications for the discharge of conditions, the approval of reserved matters or other multi-stage consents including whether they could amount in law to a "plan or project";
(c) applications for changes of use including cases where the change of use and/or operational development is claimed to reduce impact on the SAC (e.g. because it replaces existing more harmful development);
(d) applications involving qualitative planning and not quantitative improvements where no increased discharge to the SAC is anticipated;
(e) certificates of lawfulness

(2) the correct approach to take where there are a number of "smaller scale" applications which taken alone may result in an insignificant increase in discharge, but the cumulative or "in combination" effect will be significant;

(3) The Council's obligations under regs. 60 to 63 of the Habitats Regulations and the requirement for permitted development ("PO") rights granted by development order to be subject to the Habitat Regulations and an appropriate assessment.

8. For present purposes in the context of the first issue:
(1) I assume that the earlier fallback permission is one which could as a matter of planning law be regarded as a fallback, namely a valid and implementable permission for which there exist reasonable prospects of implementation if a later scheme were to be refused permission. If this were not the case then, of course, the basis of a fallback contention would not exist; and

(2) I am providing my opinion on the legal issues only and do not propose to comment on any likely impacts or adverse effects on the European site which might arise from any specific schemes or on the approach which might be taken to specific cases or groups of cases. Such matters can be covered in subsequent advice, as appropriate.

9. For completeness I first set out the legislative context and then turn to deal with the above issues. Although there is as yet no direct case authority (whether domestic or EU) on these issues, I consider that the analysis and response to the questions which I set out below to be firmly rooted in the environmental jurisprudence of the ECJ and the provisions, and legislative policy, of the Habitats Directive and Regulations.

Summary of my advice and conclusions
10. I consider that an application for a new project (whether it is wholly new or a project amending or varying an earlier consent) should be subject to the assessments required under reg. 48 for a number of reasons:

(1) The "project" which requires assessment should not be artificially cut-down by reference to the earlier consent. The project to which reg. 48 refers must be the project for which consent is sought and which may only be granted if the requirements of reg. 48 are complied with; and/or

(2) Even if only the new aspect of the application were to be assessed, it would still fall to be assessed "in combination with" the project for which consent has already been granted and, to the extent that the combined effects would have an adverse effect on integrity, mitigation would have to address the "in combination" effects even if the earlier consent failed to do so; and

(3) Consent may only be granted if, based on objective evidence, there is no risk of significant effects or, if there is, that there is certainty that there will be no adverse effect on the integrity of the European Site. The decision maker must be "convinced" of such a conclusion before consent may be granted lawfully.

11. Further:
(1) In the case of applications for the discharge of conditions, the approval of reserved matters or other multi-stage consents the reasoning applied to EIA by the ECJ and HL in R (Barker) v. Bromley LBC Case C-290/03 and Commission v. UK Case C-508/03 [2006] Q.B. 764 and [2007] 1 A.C. 470 (House of Lords) is equally capable of applying to Habitats given the importance of the policy and the relationship between EIA and Habitats identified by the ECJ in Waddenzee. It is highly likely that the Habitats procedures will have to be applied to at least negative (and arguably all) conditions, and the approval of reserved matters if they have not been considered at the stage of the initial grant of permission or, as in Barker there has been a failure to consider some significant aspect of the effects of the project and this means the project has not been properly assessed. The critical difference is that whereas EIA is a process requiring the assessment of significant effects, the Habitats requirements dictate a negative outcome to an application if there is an adverse effect on integrity (absent the application of the derogation conditions).

(2) In the case of applications for changes of use including cases where the change of use and/or operational development is claimed to reduce impact on the SAC (e.g. because it replaces existing more harmful development) ­-
(a) The requirements of the Habitats Regulations and Directive apply and the question is whether either the screening test applies or, if it does, there is an adverse effect on integrity. It is a question of fact and judgment in each case whether the change of use proposed would fall within the terms of the provisions;
(b) Where it is said that the application will reduce the impact on the SAC then it is again a matter of fact and judgment whether the proposals will have such an effect. However, this does require the Council to consider whether the existing permitted or lawful use/development is realistically capable of being revived (or implemented) and whether there is a real prospect that it will be revived (or implemented). In other words, the Council must satisfy itself that there will in reality be a reduction in impact on the SAC. If the judgment on the facts is that the previous or permitted use is unlikely to be revived or implemented, the proper comparison for the Council will be between the current situation (with the impact of the site as it actually is at the date of the determination) and the impact of the application proposals.

(3) In the case of applications involving qualitative planning and not quantitative improvements where no increased discharge to the SAC is anticipated then, if as a matter of fact and judgment, the Council concludes either that there is likely to be no significant effect on the SAC or, if there is, then (following appropriate assessment) there will not be an adverse effect on integrity of the SAC, the application of the Directive and Regulations will not require the proposals to be refused.

(4) I do not consider that certificates of lawfulness fall within the requirements of the Habitats Regulations and Directive since it does not grant consent for any plan or project but merely recognises the acquisition of lawful use rights. However, there may be structural issues with regard to local planning authorities allowing lawful use rights to be acquired without taking enforcement action, as several cases have suggested.

(5) Where there are a number of "smaller scale" applications which taken alone may result in an insignificant increase in discharge, but the cumulative or "in combination" effect will be significant, the Council is obliged to have regard to the cumulative "in combination" effects as the Regulations and Directive require.

(6) The Council's obligations under regs. 60 to 63 of the Habitats Regulations subject PD to the requirements of art, 6(3) and (4) the Habitats Directive and the' trigger for such is the likelihood of significant effect under reg. 60 as under reg. 48 for planning applications, subject to notification of the appropriate nature conservation body. If there is determined or deemed there to be such a likelihood (see regs. 62 and 63(3)-(5)), then the implementation of PD rights are subject to appropriate assessment and to there being no adverse effect on integrity. Essentially, the provisions remove the rights to develop in accordance with the GPDO unless the procedure in regs. 60-63 is gone through and satisfied."