On 16 March, the Secretary of State for Environment, Food and Rural Affairs, George Eustice, issued a Written Ministerial Statement (WMS) concerning nutrient pollution and the impact this has on protected sites and the wildlife that these sites support.
In conjunction with the WMS, Natural England issued updated advice to 76 Local Planning Authorities (LPAs) – 32 of whom had been in receipt of previous advice as well as an additional 42 previously unaffected by this issue – as to their responsibilities that arise in respect of such pollution and mitigating this through the planning process.
The upshot of this advice is that new development that would lead to the creation of overnight sleeping accommodation or any other development that may have non-sewerage water quality impacts that would impact protected habitats should not be authorised, unless it can be demonstrated that such development would not cause adverse impacts to those habitats.
As well as catching planning decisions, this guidance also impacts decisions on building regulations and environmental permit applications. It is Natural England’s position that, for the majority of sites, this can be achieved by ensuring any such development is “nutrient neutral” (i.e. that any nutrient pollution created by the development is either actively mitigated or otherwise offset).
Unfortunately, the issue for a number of affected LPAs is that there is no locally identified mitigation measures that can be shown to secure this requirement. As such, a significant number of LPAs have taken the decision to suspend the majority of planning decisions relating to the affected catchment areas until such time that robust mitigation measures have been identified and interrogated.
There is currently no timeline as to when the moratorium on decision making is likely to be lifted whilst these councils take advice. This includes authorities in Norfolk and Hampshire, as well as Cornwall Council. Clearly such moves will have a knock-on impact for developers and threaten the Government’s ambitious housebuilding targets.
As a nod to the difficulties faced by LPAs, the Government has offered each affected catchment £100,000 (which may be shared by more than one LPA) to help meet the burden of developing robust solutions to the problem. A standard ‘nutrient calculator’ has also been developed. It is hoped that together these measures will help authorities work towards being able to issue decisions and unlock development. Whether such measures will be enough remains to be seen.
In the meantime, there is a huge problem for developers and local authorities alike: any planning application (full or outline), reserved matters, permitted development prior approval or building regulations sign-off regarding new overnight accommodation is unlikely to be approved in the near future, and the length of this delay is very uncertain indeed.
If you have any questions about this article, please contact Edward Long or another member of the Planning and Environmental Team.
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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 April 2022.