Karen Jones and Victoria Furlong, in our Planning & Environmental Law team, look at Natural England's updated advice on Nutrient Neutrality.
Many of our most internationally important water bodies are designated as protected sites under the Conservation of Habitats and Species Regulations 2017. Under the Habitats Regulations, competent authorities, such as local planning authorities and the Environment Agency, must assess the environmental impact of planning applications or local plans. As a result of these regulations and European case law, Natural England has advised that in areas where protected sites are in ‘unfavourable condition’ due to nutrient pollution, Local Planning Authorities can only approve a project if they are certain it will have no negative effect on the protected site.
Natural England’s initial advice on Nutrient Neutrality issued in 2019 required 32 affected authorities to only approve a project if there was certainty it will have no negative effect on the protected site. This caused shockwaves within the development sector in parts of England’s South coast and had serious implications for housing delivery targets. Now, in 2022, with revised and updated NE advice issued, the affected authorities has risen significantly, to 74.
What is Nutrient Neutrality?
Particularly in freshwater habitats and estuaries, increased levels of nutrients, namely nitrogen, can speed up the growth of certain algae and plants. This is called ‘eutrophication’ which starves a body of water of oxygen and kill aquatic species, damaging protected sites. As such, some sites are classified as being in ‘unfavourable condition’.
The initial 2019 advice was given as a result of the landmark Court of Justice of the European Union ruling, now labelled the 'Dutch nitrogen' case. The initially affected UK area was Solent, with thousands of developments halted to a standstill amid the confusion a Local Planning Authorities were unable to grant planning permission without the applicant being able to demonstrate Nutrient Neutrality. The implications of the advice soon spread, halting developments across the south coast, with Cornwall, Kent, Somerset and Herefordshire also affected by the guidance.
The effects of this advice, which is to prohibit development plans with effects on protected sites deemed to be in an “unfavourable condition” unless they do not cause additional pollution, has led to delays in house building in parts of the country.
On 16 March 2022, Natural England reported that it identified a further 20 protected sites that are negatively affected by nutrient pollution. These 20 sites have led to 42 additional planning authorities being affected by Nutrient Neutrality advice. A policy paper published by Natural England on 17 March 2022 reported; “Different local planning authorities are affected to different degrees – some will have only a small fraction of their area affected, and others will be impacted to a much larger extent”.
On the 16 March 2022, in his ministerial statement, environment secretary George Eustice assured planning authorities that support would be offered; “So far this approach has too often been complex, time-consuming and costly to apply, and government is clear that action is needed to make sure that we both deliver the homes communities need and address pollution at source.”
Eustice also commended the efforts of Severn Trent Water, United Utilities, South West Water and Yorkshire Water “in collectively investing an additional £24.5m in reducing nutrient pollution affecting these sites, including nature based solutions”.
Eustice said that £100,000 has been pledged to each affected planning authority to assist them with meeting Natural England’s requirements and to “enable development to continue”. He also guided authorities to the new “nutrient calculator” published by Natural England. This is intended to cut the backlog of planning applications in these areas by offering a flow chart that allows planning authorities to plug in information to help them determine the impact of new applications on pollution levels. The Department for Environment Food and Rural Affairs policy paper published on reducing the impact on protected sites states that funding will be dedicated to officers who will work to establish catchment wide approaches to mitigation, which is far more efficient than on a project by project basis. The government says this can only be an interim solution. They have pledged to act to address the sources of pollution and tighten up the associated regulatory frameworks to prevent further harm to protected sites. They say they are committed to taking action to reduce the mitigation burden in order for communities to get the homes they need.
If you need advice or assistance in relation to Nutrient Neutrality, our specialist Planning & Environmental Law team has experience of Nutrient Neutrality mitigation agreements and would be pleased to assist.
For further information or legal advice, please contact firstname.lastname@example.org or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.