Prospective developers looking at acquiring a site or getting involved in a development should check whether nutrient loading is likely to be an issue, says planning and environmental specialist, Caroline Waller from Clarke Willmott LLP.
Caroline, a partner in Clarke Willmott’s planning and environmental team, warns failure to do so could mean a potentially significant delay into their contracts and development programme with significant extra costs.
Government body Natural England has designated certain European protected sites as being in unfavourable conservation status due to excessive nutrient loading; any development which may increase those nutrient levels cannot be permitted.
“The development must demonstrate it is “nutrient neutral” – which means all nutrients (such as nitrogen and/or phosphorus) from all surface water runoff and wastewater generated by the development – be less than or equal to the nutrients generated by the existing land use.
“This needs to be confirmed through a Habitats Regulation Assessment which is undertaken by the local planning authority. Competent authorities must consult with Natural England and will usually not sign off an assessment unless Natural England agrees.”
According to the Home Builders Federation, the issue currently affects 20 local planning authorities, with an estimated 30-40,000 homes delayed.
“Clearly something needs to be done, particularly to tighten regulation on water authorities and to address agricultural run-off which could put public health and nature at risk, however the issue is proving hugely disruptive to many developers. I would urge people to engage directly with Natural England in terms of mitigation measures to check they will be acceptable, and unfortunately be prepared for significant additional costs.”
Caroline says the main problem with nutrient neutrality is the delay.
“There is a real resourcing issue. Overnight, a local planning authority will have gone from having to consider a small number of assessments a year, to suddenly having to undertake a Habitats Regulation Assessment for every single planning application. Local planning authorities, who are already over-stretched and under-funded, simply do not have the manpower or, in some cases, the expertise, to deal with this unexpected significant increase in work.”
She also warns that when Natural England designates a protected site as being in unfavourable conservation status, the effect is instantaneous, with no advance warning.
“A planning application may have a resolution to grant with the decision notice being due any day but as from the date of Natural England’s advice to the authority, planning permission will not be issued without an appropriate assessment being carried out to confirm nutrient neutrality. This happened in 2021 in respect of the Somerset Levels Ramsar site and has now happened in Cornwall in respect of the River Camel Special Area of Conservation.
“The Stour Valley has also now been designated. The Solent and River Avon catchment areas were designated some time ago.” The nutrient issue does not just affect new applications for planning permission.
“Some local planning authorities have placed an embargo on the discharge of any pre-commencement conditions unless and until the underlying development has been found to be nutrient neutral,” added Caroline. “But without the ability to go back and plan mitigation into the already constructed parts of the development, it is very difficult to demonstrate nutrient neutrality without providing significant off-site mitigation schemes.”
