Nutrient Neutrality: Does the discharge of planning conditions require an appropriate assessment?

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Natural England’s guidance on nutrient neutrality means that, as things stand, 74 local planning authorities are prevented from granting planning permissions for new residential, tourist and student development. This suspension applies unless an appropriate assessment, under the Habitats Regulations 2017, confirms that additional phosphates and nitrates arising from the development will not affect the integrity of protected sites. According to the Home Builders Federation, the requirement to achieve nutrient neutrality is already delaying an estimated 120,000 homes, 40% of which have already secured outline or full planning permission .

The recent High Court case of CG Fry & Sons Ltd v SSLuHC 2023 has considered the issue of whether nutrient neutrality needs to be evidenced by way of an appropriate assessment before planning conditions are discharged. Fry involved an outline planning permission for 650 homes and a reserved matters approval that were granted prior to Natural England issuing advice on nutrient neutrality to the LPA. The LPA withheld the discharge of planning conditions under the reserved matters approval because there was no appropriate assessment of the potential impacts on a local RAMSAR site. On appeal, a Planning Inspector determined that an appropriate assessment was required before the planning conditions could be discharged. The developer challenged this decision.

The High Court held that:

  • the RAMSAR site is protected by national policy, and nutrient neutrality must be satisfied before conditions are discharged under the reserved matters approval; 
  • an appropriate assessment would potentially be required prior to a reserved matters application being approved,; and
  • an appropriate assessment must consider the implications of the development as a whole, and not limited to the matters being approved.  

This judgement means there is a risk that it may not be possible to implement, or fully implement, planning permissions granted prior to nutrient neutrality advice being issued by Natural England to LPAs. Given the national importance of the Fry case, the High Court has granted a leapfrog certificate enabling Fry to apply straight to the Supreme Court for permission to appeal, although hearing dates have not yet been published. The outcome of that is awaited.

Natural England has launched a nutrient mitigation scheme, allowing developers to purchase credits to offset the impact of additional nutrients arising from new developments, and thereby enabling planning permissions to be granted and implemented. However, the current scheme only applies to the Tees catchment area. In the absence of a nationwide nutrient mitigation scheme, one alternative to reduce planning application backlogs and unlock local development is for LPAs to develop their own credit scheme.

Ashfords’ Public Sector and Planning teams have considerable experience of advising on nutrient neutrality and establishing credit schemes. Further information on credit schemes can be found on our Spotlight page, and for more information on nutrient neutrality, or assistance with any queries, please do get in touch with the Planning team.

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