Nutrient neutrality & prior approvals
You can undertake certain types of development without needing to apply for planning permission. These are called "permitted development rights".
Permitted development rights, are set out in the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended).
Most permitted development rights are subject to conditions and limitations. One such condition on certain classes of permitted development is the need to apply to the Local Planning Authority for its 'Prior Approval'; or to determine if its 'Prior Approval' will be required.
Permitted development rights and the prior approval process do not override the requirement to comply with other permission, regulation or consent regimes. Consequently, it is important to note that classes of permitted development that are subject to the prior approval process must still comply with the Advice issued by Natural England in relation to Stodmarsh European Designated Sites. The Natural England Advice continues to apply to all development providing overnight accommodation.
What classes of permitted development are affected by the Prior Approval process?
The following classes in Schedule 2 Part 3 (Changes of use) are affected:
- Class L – small HMOs to dwellinghouses and vice versa
- Class M – certain uses to dwellinghouses
- Class MA – commercial, business and service uses to dwellinghouses
- Class N – specified sui generis uses to dwellinghouses
- Class O – offices to dwellinghouses
- Class P – storage or distribution centre to dwellinghouses
- Class PA – premises in light industrial use to dwellinghouses
- Class Q – agricultural building to dwellingshouses
View the General Permitted Development Order 2015 (as amended)
The Council has adopted the following process for assessing nutrient neutrality in prior approvals.
Process
Step 1. The developer applies to the Local Planning Authority for a determination as to whether the prior approval of the authority will be required.
Step 2. The developer must provide the information required in accordance with the relevant class in the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended). The developer will not be required to address the issue of nutrient neutrality at this stage.
Step 3. The Local Planning Authority will determine the application in accordance with the requirements set out in the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended).
Step 4. If the Local Planning Authority determine that prior approval is given or prior approval is not required a decision notice will be issued stating this. The decision notice will include the following informative:
The applicant is advised that this development is deemed to have a likely significant effect on the Stodmarsh Lakes.
Stodmarsh Lakes are European Designated sites comprising a Special Protection Area (SPA), Ramsar site, Special area of Conservation (SAC), and a Site of Special Scientific Interest (SSSI). Parts are also a National Nature Reserve (NNR).
In accordance with Article 3(1) of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) the permitted development cannot lawfully commence until an application under regulation 77 of the Conservation of Habitats and Species Regulations has been submitted to and approved in writing by the Local Planning Authority. Failure to gain approval under Regulation 77 of the Habitats Regulations prior to commencement of the development will render the development unlawful.
Work cannot commence on site, until a Regulation 77 assessment is approved by the Local Planning Authority.
What is a Regulation 77 assessment? Why is it needed?
A Regulation 77 assessment is an assessment conducted by the Local Planning Authority, in accordance with Regulation 77 of the Conservation of Habitats and Species Regulations 2017 (as amended).
The purpose of the assessment is to determine whether the permitted development has a significant impact on the integrity of the Stodmarsh Lakes. Regulation 77 assessments are required for any permitted development providing overnight accommodation within the Stour catchment and/or discharging foul water into the Stour catchment.
By submitting a Regulation 77 application to the Council this allows the Local Planning Authority (LPA) to assess the implications of the proposed development on the Stodmarsh Lakes protected site.
In accordance with Article 3(1) of the GPDO the permitted development cannot be lawfully commenced until an application under regulation 77 of the Conservation of Habitats and Species Regulations has been submitted to and approved in writing by the Local Planning Authority. Failure to gain approval under Regulation 77 of the Habitats Regulations prior to commencement of the development will render the development unlawful.
Process - Part 2
Step 5. Prior to the commencement of development on site the developer must prepare a nutrient assessment and include details of any mitigation required.
View our webpage on nutrient neutrality information for developers for more information.
Step 6. Prior to the commencement of development on site the developer must submit an application to the Local Planning Authority in accordance with Regulation 77 of the Conservation of Habitats and Species Regulations. The application must be accompanied by the nutrient assessment referenced in Step 5 above.
Step 7. The Local Planning Authority will determine the Regulation 77 assessment in accordance with the legislative requirements.
Step 8. Following receipt of approval under Regulation 77 works can commence on site.
How to submit a Regulation 77 assessment?
To submit a Regulation 77 assessment, you will need to download and fill in the application form below.
Download the Stodmarsh Regulation 77 application form [docx] 300KB
As part of your submission you should include the nutrient calculations and details of the mitigation required to demonstrate nutrient neutrality. For schemes waiting for the borough mitigation strategy, applicants are advised to wait until such time as borough mitigation is available. Without such information, the Local Planning Authority will be unable to undertake an Appropriate Assessment and conclude whether the development achieves nutrient neutrality.
Please send your form and any accompanying information to planning.help@ashford.gov.uk.
