Nutrient Neutrality has been brought into sharp focus in recent months for planning authorities. Birketts’ Deborah Sharples and Edward Long discuss the impact of this for planning applications.
Natural England’s advice regarding the requirement for nutrient neutrality, issued earlier this year to a further 42 Local Planning Authorities, has thrown into sharp focus legal obligations in relation to habitat protection. Developments likely to have significant adverse impact on a protected site will need to pass an Appropriate Assessment and demonstrate that it will not have an adverse impact on its integrity.
It is the decision maker’s obligation to consider, in respect of any development proposal whether that proposal would, either alone or in combination with others, lead to an adverse effect on designated sites (e.g. SPAs. SACs, Ramsar Sites). The decision maker is required to make an assessment of the effects, as evidenced beyond reasonable scientific doubt (an Appropriate Assessment). The grant of planning permission where there will be a potential adverse effect would, normally, be unlawful.
As a result of further work done to assess the causes of deterioration of protected sites, Natural England has issued advice in relation to water and nutrient neutrality. This has caused significant delays in the planning process.
The issues are most acute in areas where the additional effluent from new developments would lead to an increase in the nutrients (phosphates and/or nitrates) released into the affected catchments, risking further degradation of habitat sites. In order to resolve this problem, and unlock development, much emphasis has been placed on the concept of nutrient neutrality i.e. demonstration that the proposed development would lead to no increase (or to a reduction) in the emission of the relevant nutrient into the catchment of the relevant habitat site. Broadly speaking, there are two ways in which this can be demonstrated. First, where a proposal would genuinely reduce the nutrient run off by moving from a less nutrient intensive activity and second, where the nutrient released by the development is offset, or mitigated by reducing or removing another source of nutrient.
Much of the difficulty has arisen in forming an appropriate methodology to assess the impact and the effectiveness of potential mitigation and to ensure such mitigation is secured over the long term. It is these issues that are still delaying the grant of planning permissions in a number of authorities impacted by Natural England’s advice.
Standardised calculators have been proposed but these should not be, as a matter of law, the only route to the grant of a planning permission. Case law indicates that decisions makers have a reasonable degree of latitude as to the approach taken to Appropriate Assessment. It is therefore open to planning authorities, in conjunction with applicants, to consider innovative ways in which the requirements of an Appropriate Assessment could be met using bespoke data and/or bespoke mitigation solutions, without the need to wait for standardised methodologies to be developed. This would require a significant commitment of resources by both developers and decision makers, but particularly for major development, supported by planning performance agreements, it may be a way to break the deadlock.
Whilst significantly less well publicised, water neutrality is also an issue. Advice has been issued in relation to the Sussex North Water Supply Zone indicating that development must not be permitted, where such development would increase water abstraction pressure. This is because of the impact this may be having on protected sites in the Arun Valley. It seems likely that such guidance will become more and more common, given the well-publicised water resource concerns in recent years.
As understanding of the resulting impacts of development on the environment grows, it is likely that similar issues will arise across the Country. Developers must be alert, in relation to all development, of the potential need to show environmental neutrality and ensure this is addressed at the earliest stage.
For more information on the content of this article, please contact Deborah Sharples [email protected] or Edward Long [email protected] of Birketts’
Planning and Environmental team.
Key Contacts
Partner, Head of Environment and Public Access to Land
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at August 2022.