MM25

In summary, the changes set out in the Main Modifications serve to increase the effectiveness and consequent soundness of the Local Plan.

Anglian Water notes the increase in housing numbers overall, the increased focus on urban Colchester to deliver more new homes and the deletion of one of the Garden Communities from the Plan. I have reviewed Anglian Water’s previous comments and also note that Anglian Water did not enter into a Statement of Common Ground with the Council. I note that no changes are proposed in relation to the Copford and Langham developments in connection with their wastewater infrastructure requirements.

Anglian Water broadly supports the Main Modifications. In addition to the retention of text covering wastewater infrastructure and environmental policy and the monitoring of policy in decisions and outcomes we specifically support the following changes:

ENV1
13.8. The inclusion of the requirement for 10% biodiversity net gain and its addition to Policy ENV1.
13.X. The clarification that in making decisions the Council will seek to encourage development proposals which improve the quality of the water environment.
Policy ENV1. Inclusion of the reference to the Anglian River Basin Management Plan.
ENV3 & CC1 -
Policy ENV3. Additional support for green infrastructure measures to protect and enhance water bodies as this supports the existing SuDS policies.
13.49, 13.50 AM23 and Policy CC1. Specific targets for increasing tree canopy cover as this nature based solutions are one element of Anglian Water’s own pathway to get to net zero by 2030.
PP1
Policy PP1. Clarification that proposals must also demonstrate adequate water supply network enhancements.
SC1
14.X. The inclusion of the ABRO site. Please see Anglian Water’s comments dated 27 October 2021.
SC2
14.60. The inclusion of the requirement that proposals for the Middlewick Ranges site make contributions towards the costs of delivering flood defence and management solutions in view of its location in the Critical Drainage Area.
SS2
14.137. Clarification through deletion that enhancements to wastewater treatment and sewerage infrastructure are not needed in Boxted to serve the Hill Farm development.
SS12c
14.206. Confirmation that all criteria must be meet by development proposals including adequate wastewater treatment and sewage infrastructure capacity.
DM11
15.49. Confirmation that sites will be required to have water and sewage infrastructure and be connected to the mains sewer system.
DM13
15.66. Inclusion of water efficiency as one of the ways in which the existing housing stock when it is extended or altered can help to address climate change given that water and wastewater provision uses energy
DM23
15.139. The update to the position on Critical Drainage Areas identified by ECC and the consequent need to ensure that surface water flooding is considered in developments in and near these locations including the use of SuDS to deliver betterment for the existing and new communities.
DM25
15.149 and 15.150. Full reference to the Water Cycle Study. 15.151. Inclusion of the reference on higher water efficiency standards and the consequent importance of Building Regulations for water body quality.

POLICY SC2 MIDDLWICK RANGES
In its letter to the CBC Local Plan Examination in April 2021, specifically in respect of Middlewick, Colchester Natural History Society (CNHS) wrote: “Britain is reportedly the worst of the G7 nations for protecting flora and fauna. It is reported that 40% of species have declined in Britain in the past 50 years. This coincides with an estimated 90+% loss of wildflower meadows since the 1940’s”.
CNHS is deeply concerned that Middlewick will add to those statistics despite the Modifications sought.
LOCAL PLAN POLICIES
Assuming the inspector’s ‘Main Modifications’ to be incorporated into CBC’s Local Plan, Policy ENV1 part C. Biodiversity and geodiversity would now read:
“Development proposals where the principal objective is to conserve or enhance biodiversity and geodiversity interests will be supported in principle. For all proposals, development will only be supported where it:
(i) Is supported with appropriate ecological surveys where necessary; (it is clear that the Modifications imply that allocation to housing on Middlewick did not comply with this) and
(ii) Where there is reason to suspect the presence of a protected species (and impact to), or Species/Habitats of Principal Importance, applications should be accompanied by an ecological survey assessing their presence and, if present, the proposal must be sensitive to, and make provision for their needs and demonstrate the mitigation hierarchy has been followed; (it is clear that the Modifications seek complete, effective ecological surveys that demonstrate achievable mitigation, but see (iii) below) and
(iii) Will conserve or enhance the biodiversity value of green land and brownfield sites and minimise fragmentation of habitats; (it was overwhelmingly demonstrated at Examination that proposed acid grassland mitigation is simply not achievable within the required timescales, nor indeed in the lifetime of the new Local Plan) and
(iv) Maximises opportunities for the preservation, restoration, enhancement, and connection of natural habitats in accordance with the UK and Essex Biodiversity Action Plans or future replacements; (not achievable, see point at (iii) above) and
(v) Incorporate beneficial biodiversity conservation features, measurable biodiversity net gain of at least 10% in line with the principles outlined in the Natural England Biodiversity Metric, and habitat creation, where appropriate. (The acid grassland habitat cannot be achieved in the Local Plan lifetime so the biodiversity net gain criteria will not be met)
Proposals for development that would cause significant direct or indirect adverse harm to nationally designated sites or other designated areas, protected species, Habitats and Species of Principal Importance will not be permitted unless:
(i) They cannot be located on alternative sites that would cause less harm; (this was not demonstrated in the case of Middlewick’s acid grassland) and
(ii) The benefits of the development clearly outweigh the impacts on the features of the site and the wider network of natural habitats; (the benefits of the development are not clear as CBC over-achieved its previous building target and Middlewick did not feature in its Preferred Options to achieve new targets, and impacts on the site and wider network of natural habitats were not adequately surveyed or assessed by CBC) and
(iii) Satisfactory biodiversity net gain, mitigation, or as a last resort, compensation measures, are provided. (See point made at (v) above, biodiversity net gain is not achievable).
Part D, Irreplaceable habitats
“Proposals that would result in the loss of irreplaceable habitats such as …. will not be permitted unless there are wholly exceptional reasons and a suitable compensation strategy, to the satisfaction of the local planning authority, exists.”
Following the Inspector’s Main Modifications, the Policy ENV1 has the clear intention of protecting sensitive sites of important biodiversity value such as Middlewick. Whereas the Policy seeks the production of a full ecology survey by a competent organisation, that was not the case at Examination, this does not overcome the fundamental issue.
The key factor is the rare acid grassland area. Qualified and experienced organisations were able to demonstrate at Examination that the suggestion that the acid grassland could be replicated elsewhere within 10 years was critically misinformed. As a consequence, it is reasonable to conclude that Middlewick will always fail Policy ENV1.
If CBC were to accept that Policy ENV1 is ignored, then the Borough will lose an ‘Irreplaceable habitat’ and the biodiversity it supports.
NATIONAL PLANNING POLICY FRAMEWORK (NPPF)
It is not the case that CBC’s Policy ENV1 is the only matter that must be met. There is the question of the overarching NPPF. The July 2021 NPPF has paragraphs covering habitats and biodiversity as follows.
179. To protect and enhance biodiversity and geodiversity, plans should:
a) Identify, map and safeguard components of local wildlife-rich habitats and wider ecological networks, including the hierarchy of international, national and locally designated sites of importance for biodiversity; wildlife corridors and steppingstones that connect them; and areas identified by national and local partnerships for habitat management, enhancement, restoration or creation. (Middlewick is a key element in an extensive network of sites with high biodiversity (e.g., its relationship to Birch Brook and the Roman River Valley, as well as the Colne Estuary and adjacent SSSIs). Allocation of housing to Middlewick clearly contravenes this policy).
b) promote the conservation, restoration and enhancement of priority habitats, ecological networks and the protection and recovery of priority species; and identify and pursue opportunities for securing measurable net gains for biodiversity. (Middlewick acid grassland qualifies for protection under this policy and cannot be replicated in the necessary timespan to achieve biodiversity net gain)
180. When determining planning applications, local planning authorities should apply the following principles:
a) if significant harm to biodiversity resulting from development cannot be avoided (through locating on an alternative site with less harmful impacts), adequately mitigated, or as a last resort, compensated for, then planning permission should be refused. (See points at 179 a) and b) above, “planning permission should be refused” for Middlewick)
c) development resulting in the loss or deterioration of irreplaceable habitats… (Middlwick acid grassland) … should be refused, unless there are wholly exceptional reasons, and a suitable compensation strategy exists. (See above, the benefits of development in this case are not clear given that CBC more than met previous housing targets and did not include Middlewick as a necessary site in its preferred options)
182. The presumption in favour of sustainable development does not apply where the plan or project is likely to have a significant effect on a habitats site (either alone or in combination with other plans or projects) unless an appropriate assessment has concluded that the plan or project will not adversely affect the integrity of the habitats site. (The presumption cannot apply in the case of Middlewick as it has been clearly demonstrated at Examination that an “appropriate assessment” would not find in favour of development.)
SUMMARY
It is clear that in respect of Middlewick, specifically the acid grassland, neither CBC Policy ENV1 nor key components of ‘habitats and biodiversity’ in the NPPF can be met.
Under Main Modification (MM) 37 the Inspector states “The Ecological Evidence Report confirms that the habitats within the site are of high biodiversity value, including 53 Ha of acid grassland…therefore full ecological assessments will need to be undertaken…for all Protected Species and Species of Principal Importance during the appropriate survey season. The Council will also be seeking a minimum 10% biodiversity net gain on the development site... “
Taken together, the constraints on any development required by Main Modifications 37 to 47, Amount to such a powerful acknowledgement of the importance and vulnerability of Middlewick that it is difficult to see how its inclusion in the Plan for housing could have been judged safe. Not only have the required surveys and other procedures not been carried out satisfactorily by CBC prior to allocation, but also evidence from competent independent ecologists and environmental organisations has demonstrated the failure of the MoD’s report to provide practically feasible mitigation or compensation for biodiversity loss on the site.
Given that any developer, or combination of organisations brought together to provide a ‘masterplan’ for the site, would have to surmount such a formidable array of constraints, including a 30-year legal obligation to maintain biodiversity gain, the time, energy, financial resources that would have to be devoted to the task would be both prohibitive and nugatory. Any properly conducted and independently assessed process would certainly lead to rejection.
The danger of allowing the allocations to persist, while leaving actual development decisions to CBC planners is not only the waste of scarce developer and council resources, but also that it leaves the status of the site ‘in limbo’. Whatever formal requirements are made, lack of effective oversight is almost certain to lead to deterioration on the site, loss of biodiversity and ‘planning blight’. In the end it would become vulnerable to development based on greatly weakened ecological status, and the loss of what Essex Field Club specialists regard as the most important site for biodiversity in the whole of the borough.
CNHS respectfully suggests that in respect of Middlewick the Local Plan cannot be regarded as ‘safe’ and therefore the Modifications should require Middlewick to be removed altogether from the Local Plan housing allocations.
If the inspector is not minded to follow this recommendation, then we would draw on MM45, last sentence, and MM 47, final sentence. These both imply that mitigation, on or off-site, should be ‘provided and fully functional’ before any development takes place.
This is an appropriate and necessary condition, given the highly contested nature of the proposed mitigation for the Middlewick acid grassland.
We suggest, as a further addition to MM47:
‘Such habitat should be subject to assessment by independent and competent ecological experts, with clear recognition that no development will be allowed until their judgment is that recovery of species diversity, including protected species, has recovered and 10% BNG has been achieved
Comments on MM24 and MM25 on canopy cover:
The text of these modifications 1. reports, but does not include the third element in the cited canopy-cover study: ‘targets and strategies for increasing tree cover should be set according to the species, size and age composition of the existing urban forest, based upon a ward/district level and land-use assessment’
Current CBC targets are based upon an arbitrary ratio to the population, without preliminary land-use assessments.
We propose inclusion of the cited extract from the Canopy-cover study, with the following addition:
Any planting on public green spaces should be allowed only following survey by a competent ecological organisation to ensure that the planting will not cause harm to existing biodiversity on the site. Proper consultation with local residents should also be a prior condition.
Further, since elsewhere well-documented serious damage to biodiversity has been inflicted by ‘wrong trees in the wrong place’ policies, the paragraph in MM24 beginning ‘A canopy cover assessment will be required…’ should be revised, deleting ‘and deliver biodiversity net gain’. This clause should be replaced by: ‘and be subject to ecological surveys to ensure that there are no adverse consequences for biodiversity’.

See attachment for full representation

Delete paragraph and replace with: The Council will expect landscape assessments submitted with major planning applications to explore opportunities to increase the potential tree canopy coverage, in line with Government policy, whilst taking into account a site’s characteristics.

See Attachment for full representations