In January 2021, Natural Resources Wales (NRW) introduced new tougher targets and guidance for phosphate pollution in riverine Special Areas of Conservation (SACs) across Wales. The new targets vary according to river characteristic, with maximum allowable concentrations of soluble reactive phosphorus ranging from 10-60 µg l-1. The majority of previous phosphorus targets were in the range of 20-100 µg l-1.
Phosphates are naturally occurring minerals found in human and animal waste. They are vital for plant growth – hence used in crop fertilisers – but at high concentrations in water bodies phosphates can cause dramatic growth of algae. This leads to depleted oxygen levels in the water which can be detrimental to aquatic plant and animal life. The new phosphate targets seek to alleviate these pressures on Wales’ river systems.
As a result of the new targets, it has become necessary to identify ways in which to ensure that new residential developments do not increase the nutrient load on SACs following discharge from a sewage treatment work. This has resulted in many local planning authorities (LPAs) being unable to determine planning applications for residential development in the riverine SAC catchment areas and Local Development Plan (LDP) preparations are also being stalled or delayed. The consequence of this is that housing delivery in parts of Wales has been adversely affected.
Against this context, the purpose of this blog is to provide an overview of the issue from a planning perspective and to consider the ways in which the impact of the phosphate targets on housing delivery in affected areas can be reduced.
The extent of the issue
There are nine Riverine SACs in Wales – Cleddau, Eden, Gwyfrai, Teifi, Tywi, Glaslyn, Dee, Usk and Wye – which can be viewed at DataWalesMap. These SACs are designated to conserve various habitats and species, including rare and threatened species. NRW’s ‘Compliance Assessment of Welsh River SACs against Phosphorus Targets, details that 61% of water bodies tested within the riverine SACs failed to meet their phosphorus targets. In areas where current levels are problematic, for example the River Usk SAC where 88% of water bodies failed to meet their phosphate targets, then there is likely to be greater resistance to residential development.
The map below shows which LPAs have a Riverine SAC within their area. Of the 22 LPAs in Wales (25 including National Park Authorities (NPAs)), 12 LPAs (14 including NPAs) are affected by the new phosphate targets. These account for 84.1% of Wales by area and 44.7% of the Welsh population.
Lichfields Commentary: Why are the phosphate targets causing housing delivery to slow?
As set out above, the NRW targets means that proposals for residential development within Riverine SAC areas must now demonstrate it will not contribute to increased phosphate levels within the SAC (i.e. they must be phosphate neutral or negative when compared to nutrient levels associated with the current use of the land). Whether the site is allocated for development in the LPA’s Local Plan is irrelevant.
Guidance issued to LPAs by NRW states that every development should be considered on a case by case basis and developments should first be screened to determine whether they are likely to have a significant effect on phosphate levels. Developments that do not increase the volume of foul waste water, reduce the phosphorus load of water or decrease the volume of wastewater produced can be screened out – but very few developments are likely to meet these criteria. A fundamental issue arising is how to assess the nutrient load associated with development. NRW has not provided a calculator that can be used by developers and LPAs to calculate the level of phosphates developments will generate. This unhelpfully means that it is not currently possible to assess whether proposals would contribute to increased phosphate levels and thereby meet the targets that NRW has established.
Until developers and LPAs are able to quantitatively assess and provide mitigation for phosphates levels, many LPAs are not able to determine planning applications for housing in riverine SAC areas. This is especially true where housing and other developments propose to connect to an existing wastewater treatment works as even if these treatment works do have phosphate stripping facilities, it cannot be assumed that this will be sufficient to guarantee phosphate neutrality.
There are even longer-term implications of the targets, including significant delays in LDP preparations. For example, in January 2022 Pembrokeshire County Council announced delays to the LDP timetable including a return to the Deposit Plan stage because the LPA does not know which candidate sites located within Riverine SACs can be retained in the Plan. The new timetable for the LDP is still uncertain as it is dependent on the outcomes of research that itself cannot take place until further guidance for measuring and mitigating the impact of phosphates levels is available.
This is not a problem that is unique to Pembrokeshire; the emerging Flintshire LDP and Wrexham LDP, which are both at latter stages (examination) are also experiencing substantial delays, with Inspectors stating that the new phosphate targets had cast considerable doubts of the viability of housing sites included in the emerging LDPs,.
As Welsh Government is highly focussed on LDP-led development and LDPs are being delayed due to the lack of guidance surrounding the new phosphate targets, the delivery of allocated sites will also be delayed. In the meantime, the abolition of the Five-Year Land Supply policy in Wales (see Lichfields blog: TAN 1 – Gone but not forgotten) means that there are no real means by which to encourage or force LPAs to maintain housing supply in advance of LDP reviews and adoption.
What needs to happen now?
Moving forward, LPAs and developers need to have a way of calculating phosphate levels of proposed developments. Carmarthenshire has just published a calculator and there is a discussion about developing an all Wales calculator. Whilst this has the potential to allow for a meaningful quantification of impacts and for planning applications to move forward, any calculations of phosphate additions or reductions into the SACs need to focus on the actual change in local population arising from new development. For example, the Natural England Nutrient Calculator applies an additional occupancy rate per dwelling of 2.4 people. This figure assumes that all new occupiers of new homes will be new to the area – i.e. that 100 new homes will increase the population by 240 people, and generate a consequential increase in nutrient output.
In reality, however, a significant proportion of residents of new homes are local to the area and will not increase the nutrient load: many people move homes within an area and existing households split, for example as grown-up children move out and form new households. A static population still creates the need for new homes and there should not be a requirement to mitigate new homes arising from existing residents as there will be no increase in phosphate loads.
The Natural England and Carmarthenshire calculators are therefore flawed in that they seek mitigation from homes required to meet the needs of the existing population. Lichfields consider that these calculators need to be revised so that mitigation is only sought from housing that meets the needs of net additional population. This is a calculation that can be readily made using population and household projections. Over-estimating the phosphate loads is detrimental to meeting essential housing needs as developers are having unnecessarily to demonstrate significant phosphate betterment and delivery of mitigation that is not required.
The resilience of river ecosystems is of crucial importance to Wales’ future, but we need to absorb the implications of the new targets now and find a way through to avoid a massive under-delivery of housing. A failure to do this could have significant impacts in terms of meeting the need of existing and newly forming households and will also have adverse economic implications. At a time when the economy is trying to bounce back from the shock of COVID and house prices have reached an all-time high we simply cannot afford to let this issue result in a long term reduction in housebuilding rates.
 compliance-assessment-of-welsh-sacs-against-phosphorus-targets-final-v10.pdf (cyfoethnaturiol.cymru)
 compliance-assessment-of-welsh-sacs-against-phosphorus-targets-final-v10.pdf (cyfoethnaturiol.cymru)
 Lichfields’ analysis
 Natural Resources Wales / Advice to planning authorities for planning applications affecting phosphorus sensitive river Special Areas of Conservation
 Pembrokeshire County Council Local Development Plan Review LDP2 Timetable and Process Update 12/01/2022
 Based on the national average figure taken from the 2011 Census
The Welsh Government’s Chief Planner issued a letter on 30 March 2021 setting out that a number of temporary permitted development rights (temporary PDR) were to come into force on 30 April 2021. These relate to temporary use of land, change of use of units in town centres, street furniture and awnings.
According to the Chief Planner, the purpose of the temporary PDR is:
To support the reopening of businesses and their efforts to create safe environments for the public to feel confident to return to the high street, hospitality and tourism sectors.
As a result of covid-19 and the need to social distance and ensure adequate ventilation for customers, a number of businesses, especially in the hospitality sector have had to move quickly to adapt their premises so that they can operate profitably and safely within the health guidelines. This has included additional outside seating areas, covered areas, pop up counters and pop up shops.
The Chief Planner’s letter is therefore timely and notes that the temporary PDR provide a co-ordinated approach with Welsh Government grant funding that has been made available to the private sector to adapt property and the public realm at this time. The changes also coincide with the easing of lockdown in Wales with outdoor hospitality premises allowed to open from 26 April 2021.
Subject to restrictions and conditions, new Part 4A (Temporary Changes of Use) and amended Part 42 allows:
It is necessary that before proceeding with the development, the conditions, restrictions, and definitions that apply to these new permitted development rights are fully understood.
“We do not want the planning system to act as a barrier to recovery”
We welcome the recognition from the Welsh Government that there is a need for the planning system to be responsive, flexible and pragmatic to assist with the recovery from covid-19. In discussing Class A, Part 4A the letter explains that even if the temporary PDR cannot be utilised and a planning application is required then the Local Planning Authority should prioritise these applications. It states:
Authorities should seek to support businesses and organisations, where the planning impacts are acceptable, to maximise their potential to operate over the forthcoming spring/summer months as coronavirus COVID-19 control measures are relaxed. Short term permissions and conditions should be used to manage planning impacts which would be inappropriate on a permanent basis.
It is reassuring to hear the Chief Planner saying that the planning system should not act as a barrier to recovery and that businesses can proceed with these minor developments without the need to apply for planning permission and even if permission is required then these should be fast-tracked and considered pragmatically.
Town Centre Uses – A move towards diversity
With the rise of internet shopping, high rents and business rates and a failure to diversify, town centres were struggling even before the pandemic. The situation by now is much worse with town centre stalwarts such as Debenhams and Topshop the latest to go out of business leaving large voids.
Local Development Plan policies have historically sought to protect the change of use of A1 uses in town centres to other uses, especially in primary frontages. However, the Chief Planner’s letter highlights a change of direction by facilitating the temporary use of town centre units for alternative uses for a period of up to 6 months. This includes A1 uses in primary frontages which have for so long been protected from any change away from A1 retail use.The letter notes that if the alternative use proves successful then a planning application will be required to retain the use beyond 6 months. Where it has been demonstrated during the temporary period that the planning impacts are minimal, or where the impacts could be managed through conditions, sufficient weight should be given to the social, economic and broad regeneration benefits of retaining an alternative use.
It will be interesting to see what kind of temporary uses pop up in the town centre within the temporary period and whether these are retained in the long term.
Whilst all of this is helpful and should be welcomed, it must be noted that this is nowhere near the flexible system present in England where the use class order has recently been loosened dramatically with the introduction of Use Class E which encompasses the old A1 (Part), A2, A3, B1, D1 (Part) and D2 (Part) uses but with some restriction such as shops (less than 280 sqm) selling essential goods.
The Chief Planner’s letter notes that this is a solution for the short term, and we wonder therefore if a more flexible approach to town centre uses will become permanent in the future in order to safeguard the vitality and viability of town centres.
Lichfields Can Help
Whilst the above temporary PDR appear to be modest and simply tweaking around the edges, we do think that they will assist the hospitality sector and town centres in adapting their premises so that an expensive and lengthy planning application or planning enforcement can be avoided.
If you are unsure whether you are able to take advantage of the new permitted development rights, then we would be more than happy to discuss your situation and assist with a notification or planning application if required.