Neutralising neutrality?

4th October 2023

Nutrient neutrality has been a concept firmly on our radar in certain parts of England and Wales since 2018. It has brought with it huge delay at great cost to many developers, all in the interests of preventing further deterioration to already unfavourable river water quality.

The problem is of course not all due to development, other stakeholders have an important part to play in this environmental rescue operation. The government has been reconsidering the proportions in which the burden of responsibility should spread across those stakeholders and the outcome remains uncertain.

The legal requirement for nutrient neutrality originates from Regulation 63 of the Conservation of Habitats and Species Regulations 2017 (“the Habitats Regulations”). Pursuant to this provision, local planning authorities, with input from Natural England, are required to determine whether planning applications will have a likely significant effect on a European Site – notably, a special area of conservation. This will be through carrying out an appropriate assessment. Only where authorities are satisfied that such an effect is mitigated with scientific and legal certainty, can planning permission be granted.

Guidance from Natural England is now in place in respect of high levels of phosphates and nitrates in waterways across 74 local planning authorities to trigger the Habitats Regulations. As a consequence, development within those authority areas has been stymied or in many instances frozen altogether while plans are formulated to create mitigation.

The form of mitigation is not prescribed and indeed there are many options available, providing they are secured with legal and scientific certainty – a genuinely multi-disciplinary conundrum to be cracked to allow development to be consented.

Earlier this year the High Court determined in the case of CG Fry & Sons v Secretary of State for Levelling up Housing and Communities that the requirement to achieve nutrient neutrality extends to the discharge of conditions attached to full, outline or reserved matters approvals.

That is the case regardless of whether the original consent was granted prior to Natural England advice on nutrient neutrality – or at least that remains the position pending a leapfrog appeal to the Supreme Court. As a consequence, many consents have lapsed due to an inability to lawfully discharge planning conditions and will continue to do so unless the law changes further.

A difficult time to be a housebuilder; and a concern that has not gone unnoticed by a government also grappling with a housing crisis. At the end of August, the government sought to turn the tables by removing the nutrient neutrality requirement for housebuilders and instead to take action on agricultural nutrient pollution.

Those amendments were to be introduced via the Levelling Up and Regeneration Bill which already incorporates measures to require water authorities to upgrade waste water treatment works by 2030 to help to tackle quality issues.

While welcomed by housebuilders, concerns were raised as to the apparent paring back of environmental protections and ultimately the removal of the requirement for nutrient neutrality will not come forward in the Levelling Up and Regeneration Bill.

Nevertheless, the prospect of similar legislative amendments continues to be advocated by government and we will have to wait and see what those proposals look like and which stakeholders they affect in the coming months.

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