In March 2022, Natural England issued an advice letter the Chief Planning Officer which stated that the increased levels of nutrients from waste water generated from developments are damaging protected sites and causing them to be in an “unfavourable condition”. Natural England urged a total of 74 Local Planning Authorities (LPAs) to carefully consider planning applications and plans affecting habitats sites in “unfavourable condition” stating that development should only be approved if mitigation is used to ensure it meets the requirements of the Conservation of Species and Habitats Regulations 2017 (as amended).
As a result of Natural England’s advice, planning permissions which may cause additional nutrient pollution are now taking significantly more time in being determined, if they have been determined at all. In order to try and unlock development restricted by the nutrient neutrality issue, Natural England’s Nutrient Mitigation Scheme (“the Scheme”) was first announced in July 2022. The Scheme would allow developers to purchase credits to offset residual nutrient balances, thereby discharging the requirements to provide mitigation with priority access to the Scheme to be given to smaller builders who are most affected.
The Scheme is to run alongside a duty on water companies to upgrade their wastewater treatments works to the highest technological levels by 2030. This duty will come forward as part of the Levelling Up and Regeneration Bill and once this receives royal assent, LPAs and developers can assume these upgrades will be undertaken and completed by 2030.
Credits from the Scheme will be offered in batches which any developer requiring credits can apply for. Where demand for credits exceeds supply, applications will be prioritised to minimise nutrient neutrality related delays to development, to enable development of the most homes most quickly, to facilitate small and medium enterprises, and to support the delivery of affordable and social housing.
While the announcement is no doubt welcomed as a step towards unlocking development currently restricted by the nutrient neutrality issue, there remains uncertainty around how much of an impact the Scheme will have, at least in the short term. The first mitigation project currently being negotiated is in the Tees catchment, with the announcement stating that credits will be available from the end of March 2023. However, there is no price information which make it difficult for developers to know whether they can afford to make use of the Scheme or whether they will be priced out of it. Further, there is no information about schemes for other catchments coming forward nor timings as to when they might be expected.
From December 2022, Natural England will be approaching landowners in a targeted way to invite them to offer their land as potential sites for nutrient mitigation and they highlight that the Scheme will not crowd out other third-party schemes or initiatives. It remains to be seen how quickly the Scheme can be rolled out to other catchments, what the uptake of the Scheme will be and if developers will seek to find alternative options which can be used to unlock development faster than the Scheme will allow.
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About the author(s)
Emma is a senior associate in Gowling WLG's planning and environment team with a broad depth of experience in planning and environmental law. She has experience in both the non-contentious and contentious elements of planning and environmental law.
Karolina works with major housing developers and local authorities assisting on the drafting, negotiation and completion of infrastructure agreements pursuant to Section 38 and Section 278 of the Highways Act 1980, as well as Section 104 and Section 185 of the Water Industry Act 1991.