A summary of the latest steps intended to tackle nutrient neutrality

Those working within the planning sphere (be that developers, landowners or their respective agents) will be well aware of the delays that the issue of nutrient neutrality is causing in the planning system.

In summary, nutrient pollution (typically nitrates and phosphates) in rivers and estuaries is damaging existing ecosystems.  In some areas, these ecosystems are protected as “Habitat Sites” (these include Special Protection Areas (SPA) and Special Areas of Conservation (SAC)) and will fall under the Habitats RegulationsRegulations[1]. Where there is potential for harm to a habitats site due to additional nutrients (for example, as a result of the development of new homes), additional nutrient impact from any development must be mitigated.

According to figures provided by the Chief Planner, as of March 2022, 74 local planning authorities (LPAs) have received nutrient neutrality advice from Natural England across 27 catchments amounting to 14% of England’s land area.  In these areas, the granting of planning permission is delayed until appropriate mitigation can be secured: however, as there is often an insufficient supply of accessible mitigation the issue is rarely quickly resolved.

What action is the Government taking?

In July 2022, the Chief Planner, Joanna Averley, wrote to LPAs outlining the steps the government intends to take to tackle nutrient neutrality, being:

• legislation requiring wastewater treatment works in nutrient neutrality areas to be upgraded
• establishing a strategic mitigation scheme
• clarifying the application of Habitats Regulations Assessments for post-permission approvals

We will consider these steps in turn.

The Levelling up and Regeneration Bill (LURB)

In November 2022, Michael Gove tabled a series of amendments to the LURB which would require water companies to upgrade wastewater treatment works (which can remove nutrient pollution derived from homes before it reaches rivers) by 2030.  The amendments also allow for enforcement where this does not occur.  As the majority of nutrient pollution from residential properties enters waterbodies from treated discharges from wastewater treatment works, it is intended that that this measure will significantly decrease overall nutrient pollution from housing.  By the Government’s initial estimates, this could lead to around a 75% reduction in phosphorus loads and around 55% reduction in nitrogen loads.

The LURB (including the amendments above) is currently being considered by the House of Lords (see our article here).

Strategic Mitigation Scheme

Natural England will work with Defra and the Department for Levelling up, Housing and Communities (DLUHC) to establish a Nutrient Mitigation Scheme.  Under proposals set out in July 2022:

• Natural England identifies mitigation projects in nutrient neutrality catchments;
• Defra and DLUHC provide funding (to frontload investment in mitigation projects, including wetland and woodland creation);
• developers can then purchase “nutrient credits” which will discharge the requirement to provide mitigation and allow LPAs to grant planning permission.

There are some existing schemes which allow developers to purchase nutrient credits; however currently there are not sufficient sites available in locations where nutrient mitigation is necessary, so a strategic mitigation scheme would be a positive step. 

In November 2022, Natural England confirmed that Defra and DLUHC would be investing up to £30 million over three years to fund the Nutrient Mitigation Scheme.  Since December 2022, Natural England have been approaching landowners in a “targeted way” to invite them to offer their land as potential sites for nutrient mitigation. Under the latest timetable, Natural England intends to formally launch the Nutrient Mitigation Scheme before the end of March 2023^[2] (by inviting applications for credits from developers).

Post-permission position

Prior to July 2022, there was considerable debate as to what was required by way of nutrient neutrality in the context of post-permission approvals.

Under the Habitat Regulations, in certain circumstances competent authorities must, before deciding whether to give any consent, permission or other authorisation for a plan or project which is likely to have a significant effect on a European site (alone or in combination with others), make an appropriate assessment of the implications of that plan or project for that site.  The authority may “agree to the plan or project” only after having ascertained that it will not adversely affect the integrity of the European site.  Where there is a negative assessment, the threshold for permitting a project to continue is high – the authority must be satisfied that in the absence of an alternative solution, there are imperative reasons of overriding public interest.  European sites include Special Areas of Conservation (SAC).

Regulation 70 expressly applies the above requirement to the grant of planning permission.  Authorities are frequently treating post permission approvals (i.e.  reserved matters and pre-commencement approvals under conditions) as also subject to the requirement following legal advice.  This tends to arise in practice where there has been a material change in circumstances since the grant of permission (e.g.  there is material concern around the integrity of the European site and the effect of development upon it which was not considered at the grant of permission).

The letter from the Chief Planner confirms that a Habitat Regulation Assessment is required in “post permission approvals” including:

• where material changes to environmental circumstances mean that adverse effects arising from development were lawfully screened out at the permission stage but cannot now be screened out (for example, unfavourable changes to nutrient load or conservation status); or
• development that originally passed an Appropriate Assessment, but would no longer do so because the secured mitigation would not be sufficient to ensure that there would be no adverse effect on the integrity of the habitats site.

Changes to planning practice guidance to reflect the above are awaited.

What is next?

It is hoped that the actions taken by the government as set out above will ease some of the delays in LPAs granting approvals as a result of nutrient neutrality issues.  Unfortunately, none of the proposals offer a quick fix, for example:

• legislation compelling water companies to take action may be crucial in the long term, but the legislation still has to work its way through the House of Lords and refers to 2030 targets;
• a strategic nutrient mitigation scheme will be important as an interim stage in allowing development to move forward, however until we have more details (anticipated in March) it remains to be seen whether sufficient mitigation sites will be made available in appropriate locations to allow development to move forward; and
• until detailed guidance in relation to the post-permission position is issued, developers are likely to face uncertainty as to whether consents awaiting reserved matters approval or discharges of conditions will be able to progress unhindered by the nutrient issue.  There remains a risk that developers and LPAs will be engaged in debates as to what constitutes a material change in environmental circumstances and/or whether existing mitigation measures are sufficient.

Nutrient neutrality therefore remains an issue in 2023.  Until appropriate legislation and a functioning strategic nutrient mitigation scheme are in place, developers in areas affected by nitrates and phosphates should expect delays in obtaining planning permission and may need to consider alternatives, such as bespoke mitigation schemes.

[1] Conservation of Habitats and Species Regulations 2017 (derived from an EU Directive)
[2] New scheme to protect our waterways from pollution and enable home building set to launch - Natural England (blog.gov.uk)