read time: 5 mins
31.08.23
The Government has announced that it will be doing "away with [the] red tape" to allow for the delivery of more than 100,000 homes. The Government’s position is that the delivery of new homes is being delayed by “defective EU laws” that require proposed developments to evidence nutrient neutrality before planning permission is granted. In this article we take a brief look at the background to the Government’s announcement, and how it is proposing to change the current requirement for nutrient neutrality.
The Conservation of Habitats and Species Regulations 2017 require a Local Planning Authority (“LPA”) to undertake an “appropriate assessment” of whether the development will have an adverse effect on a protected site e.g. Special Conservation Area. This assessment includes adverse effects of any nutrients (phosphates and nitrates) on a protected site.
Natural England has issued advice to LPAs in nutrient sensitive catchment areas where there are risks to the integrity of protected sites. In these areas, the LPAs required nutrient neutrality to be evidenced before planning permission is granted. Case law has confirmed that LPAs cannot discharge planning conditions under full planning permissions, or approve reserved matters under outline planning permissions, until nutrient neutrality is demonstrated. Please see our article on the case of Fry for further details. Therefore, local authorities have been introducing mitigation and credit schemes to offset the impacts of nutrients arising from new developments.
The Government is intending to amend the Levelling-up and Regeneration Bill to ensure that Natural England won’t have to issue advice to local authorities in nutrient sensitive areas, and therefore remove the bar on granting planning permissions in nutrient sensitive areas. However, the Government also stated that Natural England will be given “greater freedom to develop catchment-specific solutions to the causes of nutrient pollution in partnership with each community”. There is little detail on how Natural England will develop the catchment specific solutions, or how Natural England will work with landowners and LPAs to achieve the solutions.
It appears the Government is retaining the National Mitigation Scheme, and is using the national scheme to offset the “very small amount of additional nutrient discharge attributable to up to 100,000 homes between now and 2030”. The Government is also expecting larger developers to “make an appropriate and fair contribution” to the national scheme, although there are no details on how these contributions will be calculated and collected.
Turning to local credit schemes that have been setup by local authorities and landowners, it is not clear what whether these credit schemes could play a role in catchment specific solutions, and whether LPAs will require credits to be purchased under planning permissions that are granted. In summary, there is very little detail on how removing the requirement for nutrient neutrality for new developments will be implemented through the planning system and local credit schemes.
Following the Government’s announcement, it has published proposed amendments to the Levelling-up and Regeneration Bill that set out how it intends to remove the requirement for developers to evidence nutrient neutrality before planning permission is granted, planning conditions are discharged, or approve reserved matters are approved.
The Government’s proposed amendment includes a noticeable shift to relying on the environmental permitting regime, rather than appropriate assessments and mitigation under the Conservation of Habitats and Species Regulations 2017. In summary, where an LPA in England is determining whether to grant planning permission, discharge a condition, approve reserved matters, or approve a biodiversity net gain plan and
then the LPA must assume (even if there is contradictory finding) that the nutrients in urban waste water from the potential development, whether alone or in combination with other factors, will not adversely affect the protected site.
Therefore, the potential adverse effect on a protected site caused by nutrients in waste water is not a ground for the LPA to determine that:
The proposed legislative amendment would lift the current bar on LPAs granting planning permission, discharging conditions or approving reserved matters in nutrient sensitive areas, however, it falls short of stating that nutrients should be disregarded as part of the planning application decision making process.
The proposed amendments will need to be debated, and potentially amended. Therefore, the final form of the legislation is not yet known, and the current bar on LPAs granting planning permissions in nutrient sensitive areas still stands.
Whilst the Government is attempting to “do away with [the] red tape”, there is no draft guidance on how the changes to nutrient neutrality will be implemented and this potentially creates uncertainty for LPAs, landowners and developers. Going forward, there will need to be guidance on how the issue of nutrient neutrality is considered when determining planning applications, and how credit schemes will interact with the planning application process. While there clearly remains a great deal of detail to be provided, it seems possible that Government may look to planning conditions or other measures linked to specific developments to address this issue, however, this remains an unknown at the current time and the development sector will watch the evolution of this closely.
If you have any queries, or would like further information on nutrient neutrality and credit schemes, please contact our Public Sector Team.
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