Further clarification on offsetting agricultural land to mitigate against increased nitrogen from wastewater from new housing in the Solent has been provided in a recent appeal decision which can be viewed here.

Adams Hendry assisted Fareham Borough Council in defending the appeal.

An advice note by Natural England “Achieving Nutrient Neutrality for New Development in the Solent Region” June 2020 sets out a methodology and measures to avoid and mitigate against likely effects on European Nature Conservation Sites in the Solent.

Natural England’s guidance covers the off-setting of additional nitrogen that would be generated by the development by taking agricultural land out of production in perpetuity. The Natural England guidance considers that evidence of past agricultural use covering a ten year period can be relied upon to mitigate against the increase in nitrogen.

The appeal proposal for 100 houses in Warsash, Fareham proposed to offset the assessed horticultural use of the appeal site and additional agricultural land out of production at another location within the Solent catchment in Stubbington, in order to mitigate the increase in nitrogen from the new housing.

The Inspector considered the matter in more detail, looking at the extent to which various parts of the appeal site had been in recent agricultural use, rather than considering the appeal site as a whole for the last ten years, as is advocated in Natural England’s guidance.

The Inspector concluded,

 “ active agricultural use of the site accounts for only a small fraction of its overall area, and this is also likely to reflect the situation in the recent past.”

A Statutory Declaration had been provided to support the past use of the site for growing strawberries, vegetables and Christmas trees, but this was also not considered sufficiently precise to demonstrate the proportion of the site the activities took place on and their duration. Aerial photographs showing fruit and vegetable growing only related to parts of the site. The Inspector stated,

“This evidence does not therefore form a sound basis upon which to classify the whole site area as falling within a particular category of agricultural use.”

The prospects of the site returning to horticultural use were also considered doubtful due to the considerable investment required to bring the site back into cultivation and that the site is also identified as a draft housing allocation within Fareham’s emerging Local Plan.

Finally a clause in the S106 agreement potentially allowed for future development of the offsetting land, which the Inspector considered conflicted with the need to secure the mitigation land in perpetuity.

Andrew Burgess, a Senior Consultant for Adams Hendry commented,

“This appeal decision advances the approach to be taken when assessing the agricultural use of land proposed for offsetting. It is clearly important to take a robust approach that considers the parts of the site currently in active agricultural use and the prospects of a development site realistically returning to agriculture. Relying on the past agricultural use of an entire site in the last 10 years, which has been disused, is proven by this decision to not be a reasonable approach to mitigating the effects of increased nitrogen in the wastewater of new housing.”

For further information please contact j.parker@adamshendry.co.uk or e.barnett@adamshendry.co.uk