The concept of nutrient neutrality has received a lot of media attention in recent months. Indeed, it's hard to avoid the warnings from various bodies that the development of hundreds of thousands of homes across England has stalled because of the advice from Natural England which states that developments in certain areas should proceed only if they will not cause additional pollution to sites. It seems that the government has taken some of these concerns on board with an array of recent announcements including a new statutory obligation on sewage and water companies and the amendment of the Habitats Regulations Assessment. In this article we consider whether these announcements go far enough to address industry concerns, and the potential implications of the new Prime Minister's view of the issue.

What is nutrient neutrality?

Nutrient neutrality occurs when a particular land use or development does not result in an increase of nutrient levels, for example phosphate or nitrate levels, in local watercourses. This is to protect vulnerable watercourses as, if levels increase, it can encourage the growth of algae and other vegetation which can reduce oxygen levels in the water. Before this year, Natural England had identified 32 Local Planning Authorities as areas with vulnerable watercourses. A further 42 LPAs were added to its list in March. This means that LPAs in previously unaffected areas like Cumbria, Cheshire and parts of Yorkshire must now consider the impact of any development on their local, vulnerable watercourses. The increase in affected LPAs (which now totals 74) has sparked criticism from various bodies and groups, such as the Nitrates and Phosphates Strategy Group,who believe Natural England’s advice is delaying key development.

Change is coming

George Eustice, the Secretary of State for the Department Environment, Food and Rural Affairs (DEFRA) noted in his written statement made on 20 July 2022 that “there is still a gap in the ability of LPAs and developers to find mitigation quickly and effectively”. In an attempt to combat this, the government has released a series of new measures, set out in three recent announcements. The three key measures include: amending the Levelling Up and Regeneration Bill to introduce statutory obligations to upgrade wastewater treatment works; establishing a Nutrient Mitigation Scheme; and reforming Habitats Regulations Assessments.

The first of these proposals will require water and sewage companies in England to upgrade wastewater treatment works in vulnerable areas. These companies will have until 2030 to carry out the upgrades but they must achieve “the highest technically achievable limits” by this point. A call for evidence has also requested that areas be identified where these upgrades could be delivered sooner. Although a statutory requirement is likely to be welcomed by developers, commentators have already voiced their concern that this measure does not go far enough to address the urgency of the problem. Certainly, this proposal does nothing to unblock the log-jam and encourage the delivery of homes and other developments that are currently on hold.

The second of these proposals is the establishment of a Nutrient Mitigation Scheme by Natural England. The aim of this mitigation scheme is to invest in a variety of different mitigation projects, including wetland and woodland creation, to soak up or mitigate the impacts of unavoidable nutrient pollution. Developers will then be able to buy credits from the scheme to offset any nutrient pollution in their proposed development. Although this sounds like a positive step in the right direction, DEFRA has acknowledged that the scheme is likely to progress at different rates in different catchments. This could mean that some LPAs don’t see the introduction of a Nutrient Mitigation Scheme for some time, which risks applications being left on hold in the meantime.

The last of these measures proposes changes to the Habitats Regulations Assessment to make clear that assessment applies not only to any consent or permission but also to any post-permission approvals, reserved matters or discharge of conditions. Further planning policy guidance is expected on this point later in the year. However, it seems that any development which has already been granted planning permission but which requires any further approvals may now be under further scrutiny. This will be particularly interesting in those areas which were only added to Natural England’s catchment areas list in March this year.

Is the tide really turning?

On the one hand, it’s positive to see the government listening to developers and making changes relatively quickly. However, it remains to be seen whether these measures will go far enough to unlock development while protecting vulnerable habitats. While the first two measures may help to ease the backlog in the long term, there is a danger that the final measure could act as a drag on delivery. It is also worth bearing in mind that the new prime minister has vowed to remove the guidance on nutrient neutrality completely meaning that LPAs could essentially ignore the issue. It will certainly be interesting to see whether Liz Truss goes ahead with this plan or whether she decides to amend the proposals above or indeed whether she brings in anything new in their place.