What is the issue?
In March 22, without warning, Natural England issued all Norfolk Local Planning Authorities (being Breckland District Council, Broadland District Council, Great Yarmouth Borough Council, King’s Lynn & West Norfolk Borough Council, North Norfolk District Council, Norwich City Council, South Norfolk District Council (“LPAs”)) with advice that LPAs with land in the catchment areas of the River Wensum and the Broads must not allow development which would increase the levels of some nutrients in these sensitive water environments. For the Wensum the nutrient in question is Phosphorous for the Broads it is Phosphorous and Nitrogen.
Why has this happened?
Water quality in England is a serious issue with fewer than 15% of rivers and streams being assessed as in good condition. There are numerous contributors to this including wastewater treatment works, agriculture, rising populations and urban development projects. In response, Natural England is requiring that new development in the most sensitive catchments meets the requirements of Nutrient Neutrality. Twenty nine Local Planning Authorities have been affected so far.
Excess Nitrogen and Phosphorous in watercourses lead to excessive growth of some plant and algal species and this has a significant adverse impact on the ecosystem of the freshwater habitats affected. To slow or halt these effects Natural England is requiring that new development does not give rise to additional nutrients over and above the levels which entered the water from the site prior to development. This is nutrient neutrality and can be achieved by using suitable mitigation nor offset methods within the catchment.
How has the advice affected development control in the relevant authority areas?
At present, the majority of development control decisions in the affected catchments has been paused.
The main impact is on new development which results in additional overnight stays within the catchment. This includes new homes, student accommodation, care homes, tourism attractions and tourist accommodation.
Other commercial development, not giving rise to new overnight accommodation should generally not be significantly affected, including for example new schools, shops, and offices. They should be readily able to demonstrate that no additional nutrients are being introduced.
Other applications, such as new industrial developments, will be considered on an individual basis. They will be affected if they are of a scale likely to attract people from outside the catchment.
What will happen next?
Under the Habitat Regulations 2017, LPAs must not make decisions which make the adverse position of the water system worse. This means that a decision which did so would be unlawful and subject to challenge. It is therefore in the interests of both LPAs and developers to ensure that the requirements of the Regulations are satisfied before a decision is issued. How to achieve that is not easy to assess and at present there are significant delays while the LPAs try to establish what can be done to ensure that nutrient neutrality is demonstrably fulfilled.
The LPAs have jointly commissioned a detailed catchment map which will show as specifically as possible which areas of the catchment are likely to face an issue with nutrient neutrality and which are not. This should assist developers in those areas which are likely to be least affected. This is expected to come forward within the next four weeks or so.
In the following two or three months the LPAs will review and publish the Nutrient Calculator for Norfolk (a tool to assist developers of overnight accommodation to assess nutrient neutrality) and an interim strategy. The long-term strategy is expected to adopted in around February 2023.
In the meantime, the Greater Norwich Local Plan process has been delayed, though it is not thought that a full reworking of the plan will be required.
What solutions are being considered?
Some short term solutions, which are currently being considered by the LPAs, include water efficiency measures for existing housing stock, short term land use changes (e.g. taking farm land out of production or use of cover crops) and enhanced SUDS including rainwater harvesting, grey water re-use and soakaways.
There are also long-term solutions under consideration which include; long-term land use change from intensively farmed land to woodlands, wetlands, grassland etc., provision of treatment wetlands and provision of new wastewater treatment facilities.
The LPAs want to work with developers and are inviting applications and suggestions for nutrient mitigation. They are in contact with the authorities who were affected previously and are learning from their experience. It is hoped that development decision making will be back on track more quickly than they were in the authorities which were first affected.
The Norfolk LPAs will update us with more information in the coming weeks.
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 June 2022.