Colchester City Council Preferred Options Local Plan Regulation 18 Consultation 2025

Strategic Policy ST2 sets out the Council's approach to ensuring that all proposals look to conserve and enhance the natural and historic environment of Colchester.
The draft policy states that:
"All proposals must conserve and enhance Colchester’s natural and historic environment, including the protection and enhancement of sites of international, national, regional, and local importance".
The wording “All proposals must conserve and enhance…” implies that every development, regardless of scale and location, is required to actively enhance the natural and historic environment. However, national guidance within the NPPF does not apply the same absolute duty on all development to enhance the environment, particularly where opportunities may be limited. Applying “must” to all proposals is therefore overly restrictive and could overreach for minor development or non-sensitive sites.
A more proportionate and flexible approach would be: "Proposals should conserve and, where appropriate, enhance Colchester’s natural and historic environment, taking account of the significance of assets at international, national, regional, and local levels." This better aligns with the language of the NPPF.

Draft Policy ST4 appears to be broadly aligned with the NPPF and its objectives to protect and enhance the natural environment, recognise the intrinsic character and beauty of the countryside, and safeguard valued landscapes.
However, in relation to the promotion of sustainable development, the NPPF is clear that the planning system should pursue sustainable development by balancing environmental, social and economic objectives (paragraph 8). As currently drafted, the policy places a strong emphasis on protection, with limited explicit recognition of achieving balanced outcomes, such as the economic and social benefits arising from well-designed development that responds positively to landscape character. It is therefore recommended that consideration is given to including wording which supports proposals that demonstrably achieve sustainable development and deliver positive contributions to landscape character, biodiversity and community needs, consistent with the NPPF’s overarching presumption in favour of sustainable development.
The final two sentences of the last paragraph appear to duplicate policy controls that are addressed elsewhere in the development plan, notably in relation to the historic environment, biodiversity and sustainable transport. This risks unnecessary duplication of policy requirements, contrary to the tests set out in paragraph 16 of the NPPF. Good practice would be to cross-reference the relevant policies rather than replicate their provisions, thereby avoiding duplication and ensuring clarity, consistency and effective plan implementation.

Draft Policy ST7 as worded places a heavy burden on developers. The policy requires all development, without exception, to demonstrate sufficient infrastructure capacity or deliver it. The NPPF (paragraph 58-59) requires planning obligations to be necessary, directly related, and proportionate to the development. The current wording is overly rigid, exceeding the NPPF tests. This creates a risk that otherwise sustainable development could be unreasonably withheld if full mitigation cannot be delivered at the point of permission, even when contributions are proportionate to the impact.
The wording of the draft policy lacks proportionality and flexibility. The policy applies to all development proposals, including minor or low-impact schemes, without differentiating the scale or significance of contributions. NPPG guidance encourages that obligations are proportionate to the impact of development. A blanket requirement for all development may fail the proportionality test.
The policy states that:
"Permission will only be granted if it can be demonstrated that there is sufficient and appropriate infrastructure capacity to support the development or that such capacity will be delivered by the proposal. Development must only be permitted if there is sufficient infrastructure capacity or it will be delivered by the proposal".
This is a rigid 'pre-approval' approach. National policy allows for contributions secured via planning obligations to mitigate impacts. Developers could argue that requiring all infrastructure to be in place before permission is disproportionate and not consistent with NPPF paragraphs 58–59.
The policy states that:
"New streets should seek to be built to adoptable design standards in adherence with current guidance and standards. Where streets are not built to an adoptable standard, there must be a substantive place making benefit".
Notwithstanding that this matter would appear to sit better within the 'Place and Connectivity' policies, the wording 'Substantive' is subjective. Without clear guidance or measurable criteria, this could be used to unreasonably withhold approval, conflicting with NPPF paragraph 16 (clarity) and the need for predictability in planning decisions.
The policy allows the Council to implement CIL and retain Section 106 where applicable. While this aligns with national guidance, it does not clarify how conflicts between CIL and S106 will be resolved. This could introduce uncertainty for developers, particularly for phased or large-scale developments, and could create confusion and duplication, potentially conflicting with paragraph 16 of the NPPF, which requires policies to be clear, internally consistent, and unambiguous.

Draft policy EN1's blanket wording that development proposals with any adverse effects on the integrity of habitats sites or SSSIs 'will not be supported' fails to reflect the mitigation-led approach of the Habitats Regulations and the language and balanced policy tests within the NPPF (paragraph 193). The policy should allow for impacts to be appropriately avoided or mitigated, rather than applying an absolute prohibition.
The automatic requirement for financial contributions from all qualifying residential development within the Zones of Influence does not explicitly apply the statutory and NPPF tests of necessity, proportionality and direct relationship. This creates a risk of unlawful or disproportionate obligations, contrary to national policy and the NPPG.
The reliance on the Essex Coast RAMS and any future updates introduces uncertainty, as these documents are not part of the statutory development plan and may change without formal examination. This undermines clarity and effectiveness, contrary to paragraph 16 of the NPPF.
It is therefore recommended that the policy is amended to introduce appropriate flexibility, explicitly apply the statutory tests for planning obligations, limit reliance on external documents, and remove or soften overly prescriptive operational requirements, in order to ensure compliance with paragraphs 16 and 36 of the NPPF.

While the objective of securing BNG is supported, policy EN2 as drafted is overly prescriptive, inflexible and does not fully align with national policy or the statutory BNG framework.
The policy states that:
"All development proposals must deliver a minimum of 10% biodiversity net gain (BNG) in accordance with legislation".
The draft policy's blanket wording fails to acknowledge the exemptions to BNG requirement for certain types of development, as set out within The Biodiversity Gain Requirements (Exemptions) Regulations 2024 and further guidance within the NPPG. The policy should therefore be refined to make appropriate provision for exemptions allowed under current regulations and guidance.
The requirement that 'all opportunities must be taken to maximise the delivery of onsite BNG', with off-site delivery only acceptable where on-site provision cannot be achieved, goes beyond legislative requirements and undermines the flexibility intentionally built into the national BNG regime. This risks constraining site design, deliverability and viability without clear justification.
The restriction of off-site BNG units to a limited number of Council-preferred sites, is inappropriate. This approach risks legal uncertainty, reduces market choice, and may artificially inflate costs, contrary to the NPPF’s requirement for effective and deliverable policies.
The policy also places undue reliance on external documents that are not part of the statutory development plan and may change without examination, undermining clarity and certainty, contrary to paragraph 16 of the NPPF.
In addition, key wording such as 'all opportunities must be taken' and 'best gains for biodiversity' lacks precision and introduces unnecessary ambiguity.

Policy EN3 as drafted is overly prescriptive, inflexible, and lacks proportionality, particularly in its application to all development regardless of scale or ecological sensitivity, contrary to the tests set out at paragraph 16 of the NPPF.
The requirement for extensive surveys, detailed mitigation plans, pre-determination submission of all ecological information, and adherence to operational measures such as Construction Environmental Management Plans and Ecological Clerks of Works imposes a high administrative burden and may undermine deliverability. The policy also duplicates statutory requirements and national guidance, creating unnecessary complexity.
The policy allows the Council to require developers to reimburse its review of ecological reports. This could be viewed as a financial barrier or double charging, raising proportionality concerns under NPPF paragraph 58 and the CIL/Section 106 tests (Regulation 122). Lack of detail on how charges are calculated or capped creates further uncertainty.
The rigid application of the mitigation hierarchy, detailed habitat enhancement prescriptions, and obligations for reimbursement of Council ecological review would conflict with NPPF and NPPG guidance on proportionality, clarity, and effectiveness.
It is therefore requested that the policy is amended to:
• Introduce proportionality in survey and mitigation requirements relative to the scale and ecological impact of development.
• Provide flexibility in the timing and scope of ecological submissions, particularly for outline and phased applications.
• Allow flexibility in the application of the mitigation hierarchy and habitat enhancement measures.
• Ensure reimbursement or review requirements are transparent, proportionate, and justified.
• Streamline policy wording to focus on strategic objectives, reducing unnecessary procedural detail.
These changes would ensure the policy aligns with paragraphs 16, 36 and 58 of the NPPF, national guidance on biodiversity, and supports deliverable, sustainable development.

Policy EN5 as drafted is largely in conformity with the provisions and aims of the NPPF, however elements appear overly detailed and inflexible creating risks for deliverability, viability, and clarity.
The draft policy states:
"All new development should incorporate existing trees"
This statement is inflexible as it does not allow for circumstances whereby it may be impractical or unviable to retain existing trees. The policy should be amended to allow for existing trees to be removed and replaced where justified, to incorporate a degree of flexibility as appropriate.
Ambiguous terms such as “positive focal points” and “fair and balanced judgement” reduce clarity and increase the potential for inconsistent application.
The policy requires replacement trees 'as close as possible to the new development' and with management schemes, but does not allow:
• Off-site planting where local conditions are unsuitable, or
• Adaptation to site constraints.
NPPF guidance supports proportional, site-specific solutions rather than prescriptive blanket rules.
We also note POLP Policy GN4 (Tree Canopy Cover) also makes requirement in relation to the new and existing trees. To avoid duplication of policy control consideration should be given to combining policies EN5 and GN4, to ensure policies align with the test set out at paragraph 16 of the NPPF.

Draft Policy EN6 sets out the Council's approach to the historic environment, including in relation to designated and non-designated heritage assets, and states that:
"Development that will lead to substantial harm to or total loss of significance of a listed building, conservation area, historic park or garden or important archaeological remains, locally significant buildings, non-heritage assets (including the setting of heritage assets) will only be permitted in wholly exceptional circumstances where the harm or loss is necessary to achieve substantial public benefits that outweigh the harm or loss".
Whilst the aim to protect designated heritage assets aligns with the provisions of the NPPF, the requirement that development proposals resulting in substantial harm to, or total loss of, the significance of a designated heritage asset will only be permitted in 'wholly exceptional circumstances' is unduly onerous when assessed against the NPPF, specifically paragraph 214. This terminology is not used within the NPPF. Instead, paragraph 214 states that local planning authorities should refuse consent for such proposals unless it can be demonstrated that the substantial harm or total loss is necessary to achieve substantial public benefits that outweigh that harm or loss. Paragraph 214 also sets out specific criteria against which proposals that do not deliver substantial public benefits should be assessed. The NPPF does not require applicants to demonstrate the existence of wholly exceptional circumstances.
In order to align with the provisions of the NPPF , it is therefore recommended that the policy wording is amended to remove the requirement for proposals that would result in substantial harm to, or total loss of, the significance of a designated heritage asset to demonstrate 'wholly exceptional circumstances,' and instead reflect the tests and criteria set out in paragraph 214 of the NPPF.
It is also noted that the policy also states that:
‘In all cases there will be an expectation that any new development will enhance the historic environment or better reveal the significance of the heritage asset unless there are no identifiable opportunities available'.
Whilst the objective of protecting designated heritage assets is again consistent with the provisions of the of the NPPF the requirements that proposals ‘will’ enhance the significance of heritage assets is overly onerous when considered against the requirements of the NPPF (paragraph 203). This language and requirement is not contained in the NPPF, which states that plans should ‘take into account’ the ‘desirability’ of sustaining and enhancing heritage assets.
In order to align with the provisions of the NPPF, it is therefore recommended that the requirement that all proposals ‘will’ enhance the significance of the Council’s heritage assets is amended.

Draft Policy EN7 sets out the Council's approach to conserving and enhancing the historic environment, specifically in relation archaeological sites or areas, and states that:
"All development proposals that may affect archaeological sites or areas of archaeological potential must include a desktop study and, where necessary, an archaeological field evaluation to assess the impact on below-ground heritage assets".
Whilst the aim to protect designated heritage assets aligns with the provisions of the NPPF the requirements that proposals ‘must’ include is overly onerous when considered against the requirements of the NPPF (Dec. 2024, paragraph 207). This language is not contained in the NPPF, which states that 'local planning authorities should require developers to submit an appropriate desk-based assessment and, where necessary, a field evaluation'.
In order to align with the provisions of the NPPF, it is therefore recommended that the requirement that all proposals ‘must’ include a desktop study is amended accordingly.
The Policy further states that:
"A written scheme of investigation (WSI) will be required to outline the methodology for archaeological investigation, excavation, or preservation in situ, as appropriate".
This statement appears to assume that archaeological investigation will be required in all instances. However, the NPPF (paragraph 207) advises that the level of information submitted with an application should be proportionate to the importance of the heritage assets and no more than is sufficient to understand the potential impacts of a proposal on their significance. Accordingly, the policy wording should incorporate appropriate flexibility to avoid imposing unnecessary investigation where an initial desk-based assessment does not identify a reasonable likelihood of archaeological remains.
We note the alternative to include Archaeology within the Conserving and Enhancing the Historic Environment policy (EN6), we see no reason why such an approach should be discounted.

Policy EN8 seeks to avoid new development within areas of flood risk in accordance with the national policy guidance. It is noted that this general approach continues that of adopted Local Plan Policy DM23 and largely aligns with the NPPF. However, the policy appears unnecessarily wordy and overly onerous in parts without justification for such.
The policy states that planning permission will only be granted where it is demonstrated that a site will remain safe from all types of flooding throughout the lifetime of the development. This wording is not consistent with national guidance in the NPPF (Dec. 2024, paragraph 170). The NPPF requires applicants to demonstrate that development within areas of higher flood risk will be appropriately flood-resilient and safe, but it does not require an absolute guarantee of safety from all flood sources in all circumstances over the lifetime of a development. Assessments of flood risk should be proportionate and evidence-based with mitigation secured where justified.
As drafted, the policy could be interpreted as imposing a zero-risk requirement, which is neither realistic nor supported by national policy. To ensure alignment with the NPPF, it is therefore recommended that the wording is amended to reflect the national test of ensuring development is safe for its lifetime without increasing flood risk elsewhere, rather than requiring absolute safety from all sources.
The policy states that:
"Where sites are at risk of groundwater flooding, construction phase groundwater monitoring during periods of high groundwater (October – March) should be included in the Flood Risk Assessment to inform the design and any mitigation measures, unless adequate justification can be provided by the applicant to exempt the proposed development from this requirement".
While the need to assess groundwater risk in certain circumstances is recognised, it is not realistic to require construction phase groundwater monitoring to be included within a Flood Risk Assessment submitted at the planning application stage, as monitoring can only be undertaken during the construction phase. We therefore recommend that the proposed policy wording be amended either to remove the reference to requiring construction-phase groundwater monitoring, or reworded as follows:
"Where sites are identified to be at risk of groundwater flooding, the Flood Risk Assessment submitted with the planning application should identify and assess the potential for groundwater impacts and, where appropriate, include a proposed construction-phase groundwater monitoring scheme to inform any required mitigation measures".
The policy further states that:
"Development must conserve and enhance the natural flood storage value of the water environment, including watercourse corridors and catchments".
The wording must conserve and enhance is considered overly onerous and not consistent the language used in the NPPF. There may be circumstances where it may not be possible to enhance the water environment. A more proportionate and flexible approach would be: 'Development proposals must conserve and, where possible, enhance the natural flood storage value of the water environment…'. This better aligns with the language of the NPPF.