The Government has announced its intention to remove the need for development to demonstrate nutrient neutrality in England within water catchments where protected habitats are in an unfavourable condition. This is a requirement currently affecting 74 local authority areas.
The announcement has been met with a mixed reaction, with some in the development sector welcoming it and voices in the environmental sector responding with strong criticism. Both have important points of view.
The housing crisis across the country is well documented and research by the Home Builders’ Federation suggests the delivery of around 100,000 homes is stalled due to the nutrient neutrality issue. This is because nutrients in the form of phosphates and nitrates entering the water system are damaging protected habitats in affected areas. The main causes are agriculture and discharges from wastewater and sewage treatment plants, alongside other sources such as urban run-off. New housing development contributes a relatively small proportion but nonetheless adds to the problem where protected habitats are already under stress. This is the reason why new development has been required to demonstrate nutrient neutrality through on- or off-site measures.
Alongside the housing crisis, there is an ever more apparent ecological crisis. In terms of our natural water systems, the most recent data published by the Environment Agency shows that only 14% of English rivers met good ecological status and none achieved good status in terms of chemical content.
So, what is proposed and what does it mean for development and the environment?
The changes
The Government proposes to amend the Levelling Up and Regeneration Bill currently going through Parliament and has published a set of amendments. The amendments require that:
- When making decisions, authorities must assume that nutrients in urban waste water from the potential development, whether alone or in combination with other factors, will not adversely affect the relevant protected site.
- A potentially adverse effect on a relevant site caused by nutrients in urban waste water, whether alone or in combination with other factors, is not a ground for the authority to determine that an Appropriate Assessment is required or that the potential development will adversely affect the integrity of the relevant protected site or otherwise have negative implications for the site.
- This assumption must be made even if a finding (however described) to the contrary is made.
In essence, the proposed amendments would mean that nutrient neutrality impacts would be disregarded for the purposes of considering the potential impact of development on protected sites.
Safeguarding the environment
Alongside its proposal to remove the nutrient neutrality requirement, the Government has also announced a series of measures to mitigate nutrient discharge. These principally include:
- Expanding Natural England’s nutrient mitigation scheme – a scheme initially launched and confined to Teeside earlier this year, enabling developers to buy credits to offset nutrient loads from new development. The Government announcement states that it is working with the housebuilding industry to ensure larger developers make an appropriate and fair contribution to this scheme over the coming years.
- Accelerating restoration of protected sites via protected site strategies introduced by the Environment Act 2021 as part of new local nature recovery strategies.
- A requirement, already agreed through amendments to the Levelling Up and Regeneration Bill, for water companies to upgrade treatment works by 2030 to remove nutrients.
- Increased funding for improved slurry storage and management of agricultural nutrients.
- Consulting on new requirements for Sustainable Urban Drainage.
Timing
The Government announcement states that delivery of the homes currently stalled by nutrient neutrality requirements could begin within a matter of months. However, the required legislative changes will need to go through the parliamentary process and the timing of this is difficult to predict. It also seems that if enacted, the proposed amendments would not be implemented immediately, but would come into force on such a day as the Secretary of State may by regulations appoint.
The issue of water quality, negative pollution impacts on protected sites, nutrient neutrality and stalled housing development is a long-running saga. Progress has been made in a few areas in developing local strategies to address the issue but a nationwide solution is clearly needed. It is vital that relaxation of requirements on development runs in parallel with adequate mitigation and enhancement of habitat conditions. In this respect, questions remain, including how development is to be linked to the Natural England nutrient mitigation scheme and whether water companies will be able to sufficiently upgrade treatment works by 2030.
The passage of the proposed amendments through Parliament will certainly be important and interesting to watch.
– Mel Clinton, Director of Planning and Regeneration