Nutrient Neutrality – The Government’s latest LURB amendment.

30 August 2023

Following Michael Gove’s press statement, 100,000 more homes to be built via reform of defective EU laws  (29 August 2023), yesterday evening, (29th August 2023) the proposed nutrient amendments to the Levelling-Up & Regeneration Bill (LURB) were published which include a number of amendments to the Conservation of Habitats Regulations. The relevant amendment paper can be downloaded here.

By way of background, some rivers and coastal waters around the country, protected as special areas of conservation or special protection areas by way of EU-derived legislation, are at or beyond a tipping point for the ecological integrity of those areas. Whilst many argue that this is largely due to the historic run off of nitrates and/or phosphate from farm land and the inadequacy of our water infrastructure, the consequences of outflows from new housing have been viewed by Natural England as the final straw.  In response, in August 2020 Natural England commenced its advice to local planning authorities faced with planning applications in affected catchments, which was, in summary, not to approve them (and not to approve reserved matters applications or discharge pre-commencement conditions) unless the particular scheme can be shown to be nutrient neutral, given that otherwise in its view the “appropriate assessment” test in the Conservation of Habitats Regulations 2017 cannot be met, ie that the proposal will not adversely affect the integrity of any protected area.

Consequently, housebuilding has in practice been halted in various areas of the country until solutions can be implemented that demonstrably deliver nutrient neutrality.

The Government plainly recognises that this is a problem which needs to be addressed and, as above, has proposed amendments in an attempt to rectify the situation.  The key proposed amendment to the LURB is to introduce a new regulation 85B into the 2017 Regulations (see pages 19 and 20 of the pdf). Sub-paragraphs (2) and (3) would read as follows:

“(2) When making the decision, the competent authority must assume that nutrients in urban wastewater from the proposed development, whether alone or in combination with other factors, will not adversely affect the relevant site.

(3) Accordingly, a potentially adverse effect on a relevant site caused by nutrients in urban wastewater, whether alone or in combination with other factors, is not a ground for the competent authority to determine that –

(a) an appropriate assessment is required by regulation 77(6), or

(b) the proposed development will adversely affect the integrity of the relevant site or otherwise have negative implications for the site

These latest proposed amendments have and will cause considerable discussion and debate.

Nutrient neutrality issues are affecting 74 local authorities, with nutrient pollution being an urgent problem for freshwater habitats and estuaries that are home to wetland birds, fish, and insects. Increased levels of nitrogen and phosphorus, for example, can speed the growth of certain plants, which disrupts natural processes and damages wildlife.

MEP’s view:

The current position, is causing considerable delay and expense to the delivery of much needed new homes and is arguably out of proportion to the extent to which housebuilding is actually the problem.

If the proposed amendments are enacted, it would certainly enable permissions, reserved matters approvals and pre-commencement conditions to be ‘unjammed’. Whilst we see the sense in supporting the need to unblock the permissions, the government will need to provide answers on why the ‘assumptions’ local planning authorities are being required to make are not interpreted as regression from EU environmental standards we’ve promised to uphold as part of the Brexit agreement.

We will however need to wait and see what the outcomes are however for developers who have already committed to expensive nutrient neutrality schemes or are negotiating at present if the Government is effectively now removing the issue?   Furthermore, is it indeed right (or even envisaged) that developers should be let entirely off the hook, or will/should they be expected to contribute to nutrient neutrality schemes in some manner?

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