Nutrient pollution is an increasingly pressing issue for many freshwater habitats. Across the last several years, Natural England has advised upwards of 60 local planning authorities that where new development would have an adverse impact on a protected site, permission for that development should be refused, unless the applicant can demonstrate nutrient neutrality. On the face of it, that might seem fair, because it follows the principle in planning that new development must mitigate the harms that its provision causes.

The Government has now started to contextualise this in terms of where the origin of high nutrient levels lies, following its announcement that it will reform the Habitats Directive to allow more housing development to go ahead.

Understandably, the extra cost to a developer of designing and building systems to dilute the nutrient load from a development to achieve nutrient neutrality is substantial. A developer is essentially looking at two alternative means of compensation: either providing acreage for new wetlands or purchasing nutrient credits for provision of the same, together with other development on a council-sponsored site. Much new development is made unviable as a result; so development is stalled.

As for why so many areas find themselves in a state of nutrient peril, developers point to the widespread use of industrial fertilisers and pesticides by landowners as well as emissions from existing wastewater treatment plants as the underlying source of the problem. 

In its announcement on 29 August blaming what it calls ‘defective EU laws’ Government claims it is going to make things easier for housebuilders by amendments to the Habitats Regulations. It wants to do this via the Levelling Up and Regeneration Bill (currently at report stage in the House of Lords). Changes to the Habitats Regulations will direct local planning authorities ‘to assume that nutrients in wastewater from proposed developments will not adversely affect habitats sites’.

This seems to conflict with the Government’s promises that we would not regress from EU environmental standards post-Brexit. And whether such an assertion could be credible in the face of evidence showing that nutrient levels would increase, time will tell.

But perhaps there are other motives at play here. Is it possible that politics might be playing its part for a government with few options left and an election to fight? We will see. Putting responsibility for a marginal increase in nutrient levels on housing developers doesn’t address the underlying problem that however we got here, the system is overloaded and getting worse, making the situation untenable.  It’s not clear how relieving developers will address the pollution problem though, in the short term, it may get more houses built.

If you would like to discuss this further (or any issues with planning law), please do not hesitate to contact Oliver Bussell on email: opb@cooperburnett.com or tel: 01892 515022.