Nitrate Neutrality

Why are we hearing about this now:

Earlier this year, and following on from the Conservation of Habitats and Species Regulations 2017, Natural England advised 74 local planning authorities that some protected sites were in unfavourable conditions, due to excess nutrients and so projects and plans should only go ahead if they will not cause additional pollution.  

What is the aim of Nutrient Neutrality:

This is about reducing the impact on protected sites, including delivering the Environment Act target to halt species decline by 2030.

What is affected:

Nutrient pollution is a particular problem for freshwater habitats and estuaries and Natural England has published an updated map of the areas affected.

Who contributes to excess nutrients:

Through research, from various sources, it is understood that the vast majority of the phosphate pollution comes from livestock, arable farming and wastewater treatment works.

What does this mean for developers:

New residential development can only proceed if the nutrient load through additional wastewater from the development is mitigated, to the extent it is "nutrient neutral".  

What planning applications/permissions will be affected:

This is likely to affect, not only all future applications submitted in those areas, but also any pending applications, variations, conditions sign off, and outline planning permissions.

Local planning authorities with protected sites, which are not currently in unfavourable conditions, will also be much more concerned to ensure the habitat is not altered, and so nitrate neutrality as a planning condition will become more and more common in all areas with freshwater habitats and estuaries.  

Do Councils have to comply with Natural England:

Natural England have made it clear that if future planning permissions are granted without nitrate mitigation measures, in areas which are in unfavourable conditions, there is a risk the planning permission will be judicially reviewed.  In the case of R(Wyatt) v Fareham Borough Council  the High Court dismissed an application for judicial review. Although an appeal was lodged against this decision, this was rejected by the Court of Appeal in July 2022 on the basis that obligations under reg 63 of the Conservation of Habitats and Species Regulations 2017 had been complied with and the impact of the development properly considered. Despite deviation from the procedure set out in Natural England's technical guidance, the court decided a lawful appropriate assessment had been made. This is now supported in the 2022 guidance and so the court is unlikely to intervene as long as the duty is understood, and rationale properly evidenced. 

Why delays:

The difficulty is that the local authorities need to understand what conditions they can impose now to achieve this.  

Due to a lack of mitigation processes, this placed an effective moratorium on planning decisions for developments in the affected areas. To combat this, the government announced a series of 3 new measures, these being (with detail below): 

• Prevention: Amending the Levelling Up and Regeneration Bill 
• Mitigation: Establishing nutrient mitigation schemes
• Reformation: Reforming the ‘Habitats Regulation Assessment’

Prevention: Levelling Up and Regeneration Bill: This aims to prevent the potentially harmful nutrients from ever entering the vulnerable watercourses. Water and sewage companies in England will be required to achieve the ‘highest technically achievable limits’ in preventing the leaking of nutrients into waterways by 2030.  If executed successfully, this may be a long term solution to the issue that does not rely solely on developers. 

Mitigation: Nutrient Mitigation Schemes On Site and Off Site: This works to mitigate unavoidable pollution in the short term by offsetting it. Off Site: one approach looks to take agricultural land out of production; by leaving it fallow, or changing the use to woodland, heathland, saltmarsh, wetland, or conservation grassland, which creates a deficit in nitrate emissions. Developers can then, by credits from this scheme, offset their own pollution with the benefit that the fallow land will be nitrate neutral maintained by the third-party owner, in perpetuity or for 80-125 years. Havant Borough Council is the first to create its own nutrient neutrality scheme.  On Site: private water treatment plans are also an option, but this requires the space available on the site being developed.

Reformation: Reforming Habitats Assessments: The reformed Habitats Regulations Assessments will mean that an ‘appropriate assessment’ will be required for any post permission approval, even if permission has already been granted. Permission will only be given if the LPA has ‘practical certainty’ that the development will be nitrate neutral for its lifetime. 

Other Innovative Solutions: Along the south coast, universities are collaborating and testing whether oysters will assist in cleaning up the environment by removing the algae.  This is a great solution as it is using nature to help nature!  

Summary:

While these measures are promising in achieving the long-term goal of nitrate neutrality, there is a lack of clarity as to how this will ease the backlog of the over 120,000 homes already delayed by this requirement. We are yet to see how effective these measures will be, but we can be assured that these are at least a step in the right direction to mitigate the impact we are having on our local environment.