Background documents

Thank you for your consultation on the above dated 28 June 2018 which was received by Natural England on the same date.

Natural England is a non-departmental public body. Our statutory purpose is to ensure that the natural environment is conserved, enhanced, and managed for the benefit of present and future generations, thereby contributing to sustainable development.

We welcome the opportunity to comment on the initial consultation of the Minerals and Waste Local Plan Review (M&WLPR) prepared by your authority, and have submitted comments on specific policies and proposed site allocations through the on-line consultation process. In this letter we have some general comments to make about the following M&WLPR documents:
* main M&WLPR initial consultation document, dated May 2018;
* Initial Sustainability Appraisal of the M&WLPR, dated May 2018; and
* Draft Habitats Regulations Assessment of M&WLPR, dated May 2018.

Comments on the consultation
Norfolk County Council is to be congratulated on the quality of the consultation documents that have been produced. Natural England considers that the M&WLPR undertaken to date has been detailed, comprehensive and written in accordance with the then current legislation and policy. Norfolk County Council has a good overall picture of what is required to protect and safeguard our natural environment whilst fulfilling its role as the county's minerals and waste authority.

However, since these consultation documents were produced in May 2018, the planning and legislative landscape has altered with the revised National Planning Policy Framework (NPPF) published; and a recent judgement from the European Court of Justice which clarified the use of mitigation measures in Habitats Regulations Assessments (HRAs). As a result, the documents listed above will need to be revised to reflect these changes. We provide more detailed comments on these specific matters below and in attached annexes.

National Planning Policy Framework (NPPF)
The revised National Planning Policy Framework (NPPF) was published on 24 July 2018. Updated Planning Practice Guidance (PPG) has also been issued by MHCLG to support various aspects of the NPPF. We recommend that the initial consultation documents are revised to reflect any relevant changes. Some key points from the updated NPPF that are relevant here include:
*Sets out a definitive list of environmental assets which may provide a strong reason to restrict development (including National Parks, Areas of Outstanding Natural Beauty (AONBs), European sites, Sites of Special Scientific Interest (SSSIs) and irreplaceable habitats)
* Provides stronger protection for ancient woodland, ancient and veteran trees with development to be "wholly exceptional"
*Includes strengthened policies on biodiversity net gain and encouraging opportunities to achieve net environmental gains
*Identifies green infrastructure as a strategic policy area
*Clarifies that the scale and extent of development within National Parks and AONBs should be limited.

Protected landscapes
Several allocations are either within protected landscapes or lie close to their boundaries or 'settings' which means that the highest sensitivity must be afforded to the landscape. It would be advisable to include a specific policy for protected landscapes within the Plan to reflect their protection as both the Norfolk Coast AONB and The Broads, which has the equivalent status of a national park, mat be impacted by minerals development. Any proposal which may affect a protected landscape or its setting should be subject at application stage to a Landscape and Visual Impact Assessment (LVIA) for all stages of the operation.

The LVIA should consider how a proposal may impact the statutory purposes for which a protected landscape is designated, including impacts on landscape character and tranquillity, together with full details of mitigation and restoration. All restoration measures proposed will need to be in keeping with the local landscape character. Consideration should be given to each landscape character's sensitivity and its capacity to accommodate the proposed development. The requirement for a LVIA and mitigation measures should be identified in the Plan for each relevant allocation.

Further information needs to be provided for these allocations which demonstrates that impacts to protected landscape features have been avoided where possible, and mitigation measures put in place for those impacts which cannot be avoided, and a programme of monitoring agreed to ensure the measures are effective. The views of the relevant organisation for each protected landscape need to be taken into account fully on these proposed allocations.

Designated sites
The assessment of a proposal on nearby designated sites, including SSSIs, must include a consideration of likely changes to hydrology and increased disturbance of sensitive species from noise, lighting, vibration etc. Suitable mitigation might include avoidance of the breeding season, provision of screening etc. If there is any landfilling with material other than inert waste, the impact of attracting gulls and corvids into the area will also need to be considered. The impact assessment should provide evidence that there will be no adverse effects on the nationally and internationally designated features from dust blow, changes to hydrology etc. The requirement to include this information at application stage should be made clear in each relevant allocation.

Restoration
Natural England expects that all minerals and waste developments should achieve a net gain for nature primarily through the creation or enhancement of Priority Habitats and linkages to local ecological networks. Where possible, schemes should clearly demonstrate how they can deliver connections with strategic green infrastructure (GI) corridors and known ecological networks, in order to achieve biodiversity net gain; and avoid severing these where it is feasible to do so. We advise that, in general, a restoration scheme should contain the following:
i. restoration objectives which clearly describe how the scheme contributes to net gain for geodiversity and/or biodiversity, within a recognisable landscape context;
ii. direct ecological links to any existing habitats, green infrastructure networks etc;
iii. access links to Public Rights of Way and national trails, where appropriate.

Quality GI, delivered in a coherent manner across all the districts, is an essential requirement to meet the needs of the expanding population, and to ensure that sites designated for wildlife do not suffer adversely from increased recreational activities, including dog walking. There may be scope to include provision for this in mineral allocations.

Agri-environment schemes
Minerals sites may be under existing Higher Level Stewardship agreements before minerals are extracted and may be returned to agricultural use following landfilling. We advise early contact by agreement holders with Natural England to discuss individual cases so that any payments can be amended accordingly.

Local Sites
We trust that consultation is being undertaken with relevant parties in relation to Local Sites of geodiversity and biodiversity interest.

Soils
The M&WLPR should give appropriate weight to the roles performed by the area's soils. These should be valued as a finite multi-functional resource which underpins our well-being and prosperity. Decisions about minerals development and restoration should take full account of the impact on soils, their intrinsic character and the sustainability of the many ecosystem services they deliver. Plan policies should therefore take account of the impact on land and soil resources and the wide range of vital functions (ecosystem services) they provide in line with the NPPF.
Where minerals underlie the best and most versatile agricultural land (Grades 1, 2 and 3a in the Defra Agricultural Land Classification (ALC) (system) it is particularly important that restoration and aftercare preserve the long-term potential of the land as a national, high quality resource. Where alternative after-uses (such as forestry and some forms of amenity, including nature conservation) are proposed on the best and most versatile agricultural land, the methods used in restoration and aftercare should enable the land to retain its longer-term capability, thus remaining a high quality resource for the future.

Comments on proposed minerals allocations
We have submitted our comments on specific allocations electronically online. Where we have not commented on a proposed site, you may assume that we have no comment to make. This does not mean, however, that there are no impacts for biodiversity or landscape.

We would be happy to comment further should the need arise but if in the meantime you have any queries please do not hesitate to contact us.

Annex 1: Natural England's comments on the Draft Habitats Regulations Assessment of the M&WLPR, dated May 2018
A recent judgment from the Court of Justice of the European Union (Case C-323/17 People Over Wind v Coillte Teoranta) has provided authoritative interpretation relating to the use of mitigation measures at the screening stage of a Habitats Regulations Assessment (HRA). The judgment concluded that it is not appropriate, at the screening stage, to take account of measures intended to avoid or reduce the harmful effects of the plan or project on a European site. However, when determining whether the plan or project will have an adverse effect on the integrity of the European site at appropriate assessment, a competent authority may take account of those avoidance and mitigation measures.

The Local Planning Authority, as competent authority for the Minerals and Waste Local Plan , should consider this judgment when undertaking the HRA screening under the Conservation of Habitats and Species Regulations 2017 and may wish to take its own legal advice on the implications of the judgment.

This means that for any sites where avoidance and mitigation measures have been identified to protect designated Natura 2000 sites such as Special Areas of Conservation (SACs), Special Areas of Protection (SPAs) or Ramsar sites, the sites should not be screened out for likely significant effect but carried forward to Appropriate Assessment, at which point any mitigation measures, eg not de-watering, conditions to control dust or lighting etc, can be assessed in detail and taken into account.

Our specific comments on various individual allocations included in the initial consultation are intended to reflect this ruling. That is, where measures have been identified specifically to protect a Natura 2000 site, then these allocations should be screened in to Appropriate Assessment. At this stage the effectiveness of any proposed avoidance and mitigation measures and all the evidence should be examined to reach a conclusion of likely significant effect, either alone or in combination with other plans or projects, and to ascertain whether an adverse effect on the integrity of the site can be ruled out.

Note that any proposal which may affect a Natura 2000 designated site must go through a project-level HRA in addition to this strategic plan-level HRA. This should be identified for each relevant allocation and reflected in the policy wording, including what avoidance and mitigation measures would be necessary. This can be at a 'high' level, e.g. work would take place outside the bird breeding season to avoid disturbance to nesting birds. However, more detail would be expected in the HRA at planning application stage.

The future conclusions and recommendations of the HRA will need to be incorporated into later revisions of the Sustainability Appraisal (SA) report, and be reflected in the allocations and policies of the M&WLPR.

Annex 2: Natural England's comments on the Interim Sustainability Appraisal (SA)
of the M&WLPR, dated May 2018
Natural England is satisfied that the SA objectives, assessment methodology and framework generally accord with the requirements of the Planning and Compulsory Purchase Act 2004 and the Strategic Environmental Assessment Regulations. The future conclusions and recommendations of the revised HRA will need to be incorporated into later revisions of the SA report, and be reflected in the allocations and policies of the Local Plan.

The Government expects an 'environmental net gain' principle to be embedded into development including minerals and waste. A good measure of the effectiveness of the M&WPR in delivering this would be to monitor annually the type and area of new habitats created or enhanced post restoration. It may be helpful to include the following definition of GI:
Green Infrastructure is the strategic network of multi-functional, linked green and blue spaces, both new and existing, urban and rural, which delivers a range of benefits for people and wildlife. The network is formed by individual green infrastructure components at different scales, from street trees, green roofs, and sustainable drainage, to allotments, nature conservation sites and country parks. These assets may be physically and visually connected to one another by linear features such as hedgerows, public rights of way, cycle routes, rivers and watercourses to form a green infrastructure network.

Individual elements of the green infrastructure network can serve a useful purpose at a range of scales without being connected. However, when green infrastructure components are linked together to form green networks, further combined benefits can be achieved at a strategic level. These direct and indirect benefits of green infrastructure have been termed 'ecosystem services' and are derived from physical natural assets known as 'natural capital'. Development can impact on the extent and ability of natural capital to provide ecosystem services. To ensure that these benefits are delivered, green infrastructure must be protected, well planned and managed.

Thank you for your consultation on the above dated 28 June 2018 which was received by Natural England on the same date.

Natural England is a non-departmental public body. Our statutory purpose is to ensure that the natural environment is conserved, enhanced, and managed for the benefit of present and future generations, thereby contributing to sustainable development.

We welcome the opportunity to comment on the initial consultation of the Minerals and Waste Local Plan Review (M&WLPR) prepared by your authority, and have submitted comments on specific policies and proposed site allocations through the on-line consultation process. In this letter we have some general comments to make about the following M&WLPR documents:
* main M&WLPR initial consultation document, dated May 2018;
* Initial Sustainability Appraisal of the M&WLPR, dated May 2018; and
* Draft Habitats Regulations Assessment of M&WLPR, dated May 2018.

Comments on the consultation
Norfolk County Council is to be congratulated on the quality of the consultation documents that have been produced. Natural England considers that the M&WLPR undertaken to date has been detailed, comprehensive and written in accordance with the then current legislation and policy. Norfolk County Council has a good overall picture of what is required to protect and safeguard our natural environment whilst fulfilling its role as the county's minerals and waste authority.

However, since these consultation documents were produced in May 2018, the planning and legislative landscape has altered with the revised National Planning Policy Framework (NPPF) published; and a recent judgement from the European Court of Justice which clarified the use of mitigation measures in Habitats Regulations Assessments (HRAs). As a result, the documents listed above will need to be revised to reflect these changes. We provide more detailed comments on these specific matters below and in attached annexes.

National Planning Policy Framework (NPPF)
The revised National Planning Policy Framework (NPPF) was published on 24 July 2018. Updated Planning Practice Guidance (PPG) has also been issued by MHCLG to support various aspects of the NPPF. We recommend that the initial consultation documents are revised to reflect any relevant changes. Some key points from the updated NPPF that are relevant here include:
*Sets out a definitive list of environmental assets which may provide a strong reason to restrict development (including National Parks, Areas of Outstanding Natural Beauty (AONBs), European sites, Sites of Special Scientific Interest (SSSIs) and irreplaceable habitats)
* Provides stronger protection for ancient woodland, ancient and veteran trees with development to be "wholly exceptional"
*Includes strengthened policies on biodiversity net gain and encouraging opportunities to achieve net environmental gains
*Identifies green infrastructure as a strategic policy area
*Clarifies that the scale and extent of development within National Parks and AONBs should be limited.

Protected landscapes
Several allocations are either within protected landscapes or lie close to their boundaries or 'settings' which means that the highest sensitivity must be afforded to the landscape. It would be advisable to include a specific policy for protected landscapes within the Plan to reflect their protection as both the Norfolk Coast AONB and The Broads, which has the equivalent status of a national park, mat be impacted by minerals development. Any proposal which may affect a protected landscape or its setting should be subject at application stage to a Landscape and Visual Impact Assessment (LVIA) for all stages of the operation.

The LVIA should consider how a proposal may impact the statutory purposes for which a protected landscape is designated, including impacts on landscape character and tranquillity, together with full details of mitigation and restoration. All restoration measures proposed will need to be in keeping with the local landscape character. Consideration should be given to each landscape character's sensitivity and its capacity to accommodate the proposed development. The requirement for a LVIA and mitigation measures should be identified in the Plan for each relevant allocation.

Further information needs to be provided for these allocations which demonstrates that impacts to protected landscape features have been avoided where possible, and mitigation measures put in place for those impacts which cannot be avoided, and a programme of monitoring agreed to ensure the measures are effective. The views of the relevant organisation for each protected landscape need to be taken into account fully on these proposed allocations.

Designated sites
The assessment of a proposal on nearby designated sites, including SSSIs, must include a consideration of likely changes to hydrology and increased disturbance of sensitive species from noise, lighting, vibration etc. Suitable mitigation might include avoidance of the breeding season, provision of screening etc. If there is any landfilling with material other than inert waste, the impact of attracting gulls and corvids into the area will also need to be considered. The impact assessment should provide evidence that there will be no adverse effects on the nationally and internationally designated features from dust blow, changes to hydrology etc. The requirement to include this information at application stage should be made clear in each relevant allocation.

Restoration
Natural England expects that all minerals and waste developments should achieve a net gain for nature primarily through the creation or enhancement of Priority Habitats and linkages to local ecological networks. Where possible, schemes should clearly demonstrate how they can deliver connections with strategic green infrastructure (GI) corridors and known ecological networks, in order to achieve biodiversity net gain; and avoid severing these where it is feasible to do so. We advise that, in general, a restoration scheme should contain the following:
i. restoration objectives which clearly describe how the scheme contributes to net gain for geodiversity and/or biodiversity, within a recognisable landscape context;
ii. direct ecological links to any existing habitats, green infrastructure networks etc;
iii. access links to Public Rights of Way and national trails, where appropriate.

Quality GI, delivered in a coherent manner across all the districts, is an essential requirement to meet the needs of the expanding population, and to ensure that sites designated for wildlife do not suffer adversely from increased recreational activities, including dog walking. There may be scope to include provision for this in mineral allocations.

Agri-environment schemes
Minerals sites may be under existing Higher Level Stewardship agreements before minerals are extracted and may be returned to agricultural use following landfilling. We advise early contact by agreement holders with Natural England to discuss individual cases so that any payments can be amended accordingly.

Local Sites
We trust that consultation is being undertaken with relevant parties in relation to Local Sites of geodiversity and biodiversity interest.

Soils
The M&WLPR should give appropriate weight to the roles performed by the area's soils. These should be valued as a finite multi-functional resource which underpins our well-being and prosperity. Decisions about minerals development and restoration should take full account of the impact on soils, their intrinsic character and the sustainability of the many ecosystem services they deliver. Plan policies should therefore take account of the impact on land and soil resources and the wide range of vital functions (ecosystem services) they provide in line with the NPPF.
Where minerals underlie the best and most versatile agricultural land (Grades 1, 2 and 3a in the Defra Agricultural Land Classification (ALC) (system) it is particularly important that restoration and aftercare preserve the long-term potential of the land as a national, high quality resource. Where alternative after-uses (such as forestry and some forms of amenity, including nature conservation) are proposed on the best and most versatile agricultural land, the methods used in restoration and aftercare should enable the land to retain its longer-term capability, thus remaining a high quality resource for the future.

Comments on proposed minerals allocations
We have submitted our comments on specific allocations electronically online. Where we have not commented on a proposed site, you may assume that we have no comment to make. This does not mean, however, that there are no impacts for biodiversity or landscape.

We would be happy to comment further should the need arise but if in the meantime you have any queries please do not hesitate to contact us.

Annex 1: Natural England's comments on the Draft Habitats Regulations Assessment of the M&WLPR, dated May 2018
A recent judgment from the Court of Justice of the European Union (Case C-323/17 People Over Wind v Coillte Teoranta) has provided authoritative interpretation relating to the use of mitigation measures at the screening stage of a Habitats Regulations Assessment (HRA). The judgment concluded that it is not appropriate, at the screening stage, to take account of measures intended to avoid or reduce the harmful effects of the plan or project on a European site. However, when determining whether the plan or project will have an adverse effect on the integrity of the European site at appropriate assessment, a competent authority may take account of those avoidance and mitigation measures.

The Local Planning Authority, as competent authority for the Minerals and Waste Local Plan , should consider this judgment when undertaking the HRA screening under the Conservation of Habitats and Species Regulations 2017 and may wish to take its own legal advice on the implications of the judgment.

This means that for any sites where avoidance and mitigation measures have been identified to protect designated Natura 2000 sites such as Special Areas of Conservation (SACs), Special Areas of Protection (SPAs) or Ramsar sites, the sites should not be screened out for likely significant effect but carried forward to Appropriate Assessment, at which point any mitigation measures, eg not de-watering, conditions to control dust or lighting etc, can be assessed in detail and taken into account.

Our specific comments on various individual allocations included in the initial consultation are intended to reflect this ruling. That is, where measures have been identified specifically to protect a Natura 2000 site, then these allocations should be screened in to Appropriate Assessment. At this stage the effectiveness of any proposed avoidance and mitigation measures and all the evidence should be examined to reach a conclusion of likely significant effect, either alone or in combination with other plans or projects, and to ascertain whether an adverse effect on the integrity of the site can be ruled out.

Note that any proposal which may affect a Natura 2000 designated site must go through a project-level HRA in addition to this strategic plan-level HRA. This should be identified for each relevant allocation and reflected in the policy wording, including what avoidance and mitigation measures would be necessary. This can be at a 'high' level, e.g. work would take place outside the bird breeding season to avoid disturbance to nesting birds. However, more detail would be expected in the HRA at planning application stage.

The future conclusions and recommendations of the HRA will need to be incorporated into later revisions of the Sustainability Appraisal (SA) report, and be reflected in the allocations and policies of the M&WLPR.

Annex 2: Natural England's comments on the Interim Sustainability Appraisal (SA)
of the M&WLPR, dated May 2018
Natural England is satisfied that the SA objectives, assessment methodology and framework generally accord with the requirements of the Planning and Compulsory Purchase Act 2004 and the Strategic Environmental Assessment Regulations. The future conclusions and recommendations of the revised HRA will need to be incorporated into later revisions of the SA report, and be reflected in the allocations and policies of the Local Plan.

The Government expects an 'environmental net gain' principle to be embedded into development including minerals and waste. A good measure of the effectiveness of the M&WPR in delivering this would be to monitor annually the type and area of new habitats created or enhanced post restoration. It may be helpful to include the following definition of GI:
Green Infrastructure is the strategic network of multi-functional, linked green and blue spaces, both new and existing, urban and rural, which delivers a range of benefits for people and wildlife. The network is formed by individual green infrastructure components at different scales, from street trees, green roofs, and sustainable drainage, to allotments, nature conservation sites and country parks. These assets may be physically and visually connected to one another by linear features such as hedgerows, public rights of way, cycle routes, rivers and watercourses to form a green infrastructure network.

Individual elements of the green infrastructure network can serve a useful purpose at a range of scales without being connected. However, when green infrastructure components are linked together to form green networks, further combined benefits can be achieved at a strategic level. These direct and indirect benefits of green infrastructure have been termed 'ecosystem services' and are derived from physical natural assets known as 'natural capital'. Development can impact on the extent and ability of natural capital to provide ecosystem services. To ensure that these benefits are delivered, green infrastructure must be protected, well planned and managed.