Nutrient neutrality: where are we now?
6 November 2023
As has been widely reported, proposals put forward by the Government to scrap the duty on housebuilders and other developers operating in certain environmentally sensitive catchments to mitigate the nutrient pollution generated by their developments were defeated in the House of Lords last month. The proposals faced objection from a broad coalition of members, including from all main political parties. The implication of this being that, for now at least, developers in these areas will need to continue to offer up mitigation solutions to secure planning permissions (and in some cases other enabling consents).
Whilst the term “nutrient neutrality” has entered common parlance, it is simply a description of the mechanism by which a development can comply with the requirement in the Conservation of Habitats and Species Regulations 2017 (the “Habitats Regulations”), that development proposals cannot be granted consent where those proposals would lead to an adverse impact on a European Protected site, either alone or in combination with other proposals. Many readers will be aware that work by Natural England identified several protected sites whose condition had become unfavourable due to excess nutrients entering these sites leading to poor water quality and eutrophication. As such, planning authorities in these catchments became unable to lawfully grant permission for development proposals unless it could be demonstrated that nutrient pollution anticipated to be generated by such developments (due to wastewater entering the catchments of the protected sites) could be effectively mitigated. This was usually through on-site solutions to prevent the nutrients from leaving the site or by removing another cause of nutrient pollution in the same catchment (e.g. fertiliser runoff from agricultural land). It is worth noting that the Habitats Regulations can lead to other impediments to development, such as the requirement to demonstrate that development in the Arun Valley is water neutral, due to the pressure of water abstraction on protected sites.
The Government’s recent proposals, which were advanced as amendments to the Levelling Up and Regeneration Bill, would have seen the Conservation of Habitats and Species Regulations 2017 (the “Habitats Regulations”) amended so that local planning authorities would have been obliged to actively ignore the impact of any anticipated nutrient pollution from a new development in considering whether development proposals would adversely impact the integrity of a protected site. The proposals were strictly limited to the question of nutrient pollution, with the requirements of the Habitats Regulations otherwise unchanged. They had also been supported with a broad package of measures to seek to mitigate the sources of nutrient pollution at a wider level instead of on a site-by-site basis.
Initially, undeterred by defeat, the Government indicated its intention to progress new legislation to address what it, and many in the industry, consider to be a significant barrier to housebuilding. Recent reports, however, suggest that any proposal will not be included in the Kings’ Speech and as such are not planned to be introduced in the next parliamentary session.
It remains to be seen when and in what form any legislation will be introduced and whether it will be able to succeed in Parliament, given significant political opposition and allegations of regression in environmental protections, including from its own environmental regulator.
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 November 2023.