We are now all too familiar with the issue of excess nutrients in our water systems which continues to cause major disruption to development across large areas of the country. The nutrients in question are principally phosphates and nitrates resulting from agriculture and wastewater treatment works.
Development moratoriums follow the 2018 ruling from the Court of Justice of the European Union (also known as the Dutch N), that any proposal that could cause additional nutrient loading to threatened ‘designated sites’ would be impermissible by law. ‘Designated sites’ are Special Areas of Conservation (SAC), Ramsar sites, Special Protection Areas (SPA) and potential SPA sites.
As a result, new residential development on designated sites can only happen if the nutrient load it creates (via additional wastewater) is mitigated to achieve ‘nutrient neutrality’. Surface water runoff and wastewater generated by the new development must be less than or equal to nutrients generated by the existing land use.
Initially, a total of 32 local planning authorities (LPAs) were advised that until nutrient neutrality is achieved in their areas, planning permission cannot be granted unless the effects of excess nutrients can be mitigated to the satisfaction of Natural England. This has already had a significant impact on the number of homes granted planning permission in these affected areas.
More recently, on 16th March 2022, Natural England advised a further 42 LPAs that development proposals in their jurisdiction also have the potential to contribute adverse nutrient impacts on designated habitat sites. This has effectively placed a moratorium on new housing in a total of 74 councils that are now affected.
The news will inevitably lead to more delays in determining applications and housing delivery, causing great concern for both developers and councils.
In recognition of the difficulties that delivering nutrient neutrality may impose, the Government has published a policy paper “Nutrient Pollution: reducing the impact on protected sites”, which outlines how the government will support this delivery, including:
In addition, Natural England is developing a framework for assessing the effectiveness of habitat restoration mitigation. Pilot schemes will test these mechanisms’ capability to deal with key pressures including air quality, water quality and overgrazing, whilst proposing actions to restore nature. The results will be developed into guidance for how to use nature-based solutions to mitigate nutrient pollution.
In the meantime, large numbers of developers, planning consultants and local authorities alike are facing considerable delays to the determination of their planning applications. However, there are some positives above and beyond the pursuit of environmental protection…
Many of the original 32 LPAs that were largely left to their own devices have already made substantial progress in finding solutions (read more here). Those 42 LPAs more recently affected will be able to adopt approaches already rolled out elsewhere. Furthermore, the Government has at last responded to the cries for support. Universal calculators, additional funding and a coordinated approach should build on existing progress in finding a lasting solution.
