Prior Approvals and Regulation 77
As the River Lambourn comprises a Special Area of Conservation (SAC), any development approved under the provisions of the Town and Country Planning (General Permitted Development) Order 2015 (as amended) is the subject of Habitats Regulations Assessment by way of a Regulation 77 Application.
River Lambourn Special Area of Conservation Nutrient Neutrality is an issue for West Berkshire in relation to two catchments, the River Lambourn and the River Winterbourn.
In relation to Special Area of Conservation catchments applications, determined under the Town and Country Planning (General Permitted Development) Order 2015 (As amended) (the GPRDO), any development is required to address the issue of Nutrient Neutrality by way of Regulation 77 of the Conservation of Habitats and Species Regulations.
Where the planning authority has issued approval for developments presented under a "Prior Approval" route, available under the GPDO, the planning authority is required to consider whether the development is likely to have an adverse effect upon the integrity of the SAC site. If it concludes that an adverse effect may occur, Article 3(1) of the GPDO imposes a pre-commencement condition on all development that is permitted by the GPDO and would affect a European protected habitat.
The permitted development cannot be lawfully commenced until an application under Regulation 77 of the Conservation of Habitats and Species Regulations has been made and approved by the Local Planning Authority. The purpose of this application will be for the Local Planning Authority, along with the appropriate nature conservation body, to make an appropriate assessment of the implications for the protected site. The Local Planning Authority can only approve the application if it is positive that it will not adversely affect the integrity of the site.
A prior notification application can therefore be approved without the above assessment taking place, although the commencement cannot lawfully take place until the separate application under Regulation 77 is approved.
Regulation 77 does not provide a power to impose conditions on the grant of approval. Accordingly, if the assessment of the impact on the protected site requires mitigation to be secured, such mitigation would need to be secured through a Section 106 planning obligation.
Where applicants are able to acquire credits, forming a part of an approved mitigation scheme delivered by a third party, the Regulation 77 application will need to be accompanied by a Section 106 Undertaking. The Section 106 Undertaking needs to confirm the level of credit required to mitigate the particular proposal, as well as confirmation that a credit forming part of an approved mitigation scheme has been acquired.
Where applicants propose to provide their own mitigation, the Section 106 Undertaking will need to present a detailed mitigation plan. This plan must include measures to provide for ongoing management for the life of the project, as well as confirmation of the method of delivery, including whether or not planning permission is required for the mitigation project.
Regulation 77 applications must be accompanied by a £30 application fee.
The Regulation 77 application will allow the planning authority, in conjunction with Natural England, to undertake the Habitat Regulations Assessment necessary to enable the development to commence.