Nutrient Neutrality and the planning system

Following the Spring Budget, Government has announced a new Local Nutrient Mitigation Fund to enable and accelerate the delivery of projects providing nutrient mitigation to support sustainable development.

A call for evidence seeks to create a comprehensive view of the impact of nutrient neutrality advice on development for all areas affected by nutrient neutrality.

An expression of interest invites local planning authorities affected by nutrient neutrality advice to submit costed proposals for projects or strategies to deliver nutrient mitigation to unlock housing delivery and economic growth.

This call for evidence and expression of interest will last for 6 weeks and will close on 24 May 2023.

Further information is available at gov.uk 

There are two main aspects to the amendments to the Levelling Up and Regeneration Bill tabled by the Secretary of State:

1. A legal duty on water companies to upgrade wastewater treatment works. Key points to note are:

• a nutrient pollution standard of 0.25mg/l for phosphorus and 10mg/l for nitrogen
• an upgrade date of 1 April 2030
• a requirement for the SoS to maintain and publish details of sensitive catchment areas and nitrogen/phosphorus significant wastewater treatment plants
• enforcement provisions for the SoS and a requirement for the EA to exercise its functions under the Environmental Damage Regulations (2015)

The Government’s initial estimates indicate that, across all affected catchments, there will be around a 75% reduction in phosphorus loads and around a 55% reduction in nitrogen loads in total from wastewater treatment works, although this will vary between individual catchments. These upgrades will enable housebuilding to be unlocked by reducing the amount of mitigation developers must provide to offset nutrient pollution.

2. Amendments to the Habitats Regulations so that when making an appropriate assessment for a development, the local authority should assume that the wastewater treatment works will meet the relevant pollution standards by the relevant upgrade date. More information on this will be available in the updated FAQs.

Following Report stage in the Commons, the Bill will need to pass through the Lords and receive Royal Ascent. More information on Bill passage is here: https://www.parliament.uk/about/how/laws/passage-bill/

The amendments will be accompanied by a Nutrient Mitigation Scheme led by Natural England that will make it easier for developers to discharge their mitigation obligations.

In July’s Written Ministerial Statement, the Secretary of State announced a ministerial direction to support Natural England to establish a nutrient mitigation scheme.

We anticipate the Scheme being launched in November 2022 and whilst the operational details are not yet available, we expect that the Natural England scheme will:

• work with local landowners to help them create nutrient mitigation habitat – particularly wetlands and woodlands – which will be the basis for nutrient credits;
• issue nutrient certificates to eligible developers who can use them for planning applications in areas covered by NN advice;
• provide certificates that will give LPAs assurance that additional nutrients from new developments can be mitigated by the purchase of nutrient credits;
• attach conditions to planning permissions to ensure that any necessary nutrient credits are bought before the new homes are occupied;
• recycle income from the sale of credits to provide new mitigation and cover the costs of monitoring and maintaining the relevant mitigation.

It is envisaged that the scheme will enable LPAs to grant permission subject to conditions or obligations securing mitigation and phasing developments (if needed) so that mitigation is operational and in place, prior to any nutrient pollution being discharged.

A one-stop-shop for local authorities affected by nutrient neutrality.

On 20 July 2022, the Environment Secretary laid a Written Ministerial Statement on improving water quality and tackling nutrient pollution.

This consists of three elements; obligating the upgrade of wastewater treatment works in nutrient neutrality areas, a strategic mitigation scheme led by Natural England, and clarifying the application of Habitats Regulations Assessments for post-permission approvals.

On 21 July, the Chief Planner provided an update on nutrient neutrality and habitats regulations assessment which sets out more of the detail.

Since June, we have been hosting a monthly network for all 27 catchment lead officers. Alongside national updates and the opportunity to engage collectively with Government, statutory agencies, and other national stakeholders, these meetings are also a great way for catchments to talk to each other to share concerns, experiences and good practice.

PAS held a series of workshops in March-May 2022 to walk people through the issue, to try to answer their questions and to provide a roadmap to try and make progress. The events looked at the short-term organisational response to nutrient neutrality, and helped to draw together some ideas for how we might help in the longer term. The events were supported by key people from Defra, Natural England, the Environment Agency and the Department of Levelling Up, Housing and Communities. The LGA separately held events for councillors.

We produced a helpful set of FAQs following the Natural England advice to Local Planning Authorities on 22nd March 2022. This topic has many moving parts and there is lots of advice that still being agreed/debated - so not every question has a firm answer - we'll be providing regular updates.

 

We spoke to councils who had to work some of this out on their own. From these discussions we produced a 'first steps checklist' which includes some of the key questions and prompts that might help to organise your thoughts and first steps. We also held some workshops back in July 2021 talking to councils that have been grappling with the Nitrates issue for some time - the presentations from our July 2021 workshops are here. 

Importantly the advice applies to catchments - here is our first attempt to map them.