Are Developers Bearing the Brunt of Nutrient Neutrality Pain?

Update: Michael Gove was reported to have said at the recent Conservative party conference that the interpretation of EU legislation and the resulting moratorium on house building was disproportionate. We understand legislation is being written and Gove has indicated the Government will be looking to take the first available opportunity to bring appropriate legislation to the House of Lords to deal with this situation. We consider the first opportunity to be the King’s Speech on 7 November 2023.

Recent alterations in nutrient neutrality regulations have set off a wave of discontent across the political spectrum. The House of Lords, with members from various parties, has successfully blocked the Government’s attempts to abolish these rules. This divisive issue is adding pressure to an already stretched planning system, with frequent policy shifts and indecision making the situation increasingly complex.

What Is Nutrient Neutrality?

In rivers and estuaries, increased levels of nutrients (especially nitrogen and phosphorus) can harm wildlife. Nutrient neutrality essentially allows developments to be permitted without impacting on the condition of protected sites.  Developments achieve nutrient neutrality when the nutrient load created through additional wastewater (including surface water) from the development is mitigated, by designing development alongside suitable mitigation measures to avoid or mitigate additional nutrient loads.

Different local planning authorities are affected to different degrees – some will have only a small part of their area affected, and others will be impacted to a much greater extent.  Additionally, nitrogen and phosphorus require different mitigation strategies, with phosphorus being much more challenging to mitigate.

What Is The Key Issue?

The frustration of developers and planners with the existing nutrient neutrality policies is palpable. These policies include a moratorium on housebuilding in most local authorities, which seem to target only residential and commercial developments. This is despite other significant industries like agriculture and the water sector contributing substantially to water pollution. The imbalance places the burden of mitigating a problem they may not be primarily causing on residential and commercial developers.

Homes On Hold

Natural England’s imposed moratorium translates to a staggering 145,000 new homes being blocked from construction. The implications extend beyond the financial instability of the construction sector, affecting communities already dealing with housing shortages and a congested property market.

Four years since the start of the moratorium, and a satisfactory mitigation solution that caters to the interests of both house builders and environmental agencies remains elusive. Recent attempts by the government to ease the blockage faced opposition in the House of Lords. The core issue lay not in disagreement with proposed amendments, but in the lack of evidence showcasing how these changes would align with the Habitat Regulations, aimed at safeguarding rare habitats and vulnerable species.

The government’s tendency to propose reforms without adequate evidence gathering has become an unsettling pattern for planners. Several critical consultations, including the National Planning Policy Framework (NPPF) and Levelling-up and Regeneration Bill (LURB), are nearing conclusion this year. However, the essential evidence required to guide policy and planning decisions remains unclear and insufficient.

What Can Planners Do?

With policies being frequently halted, changed, and scrapped, planners need to develop strategic approaches. Building contingency plans and exploring alternative options for ongoing projects is crucial. For instance, ensuring landowners and promoters have multiple strategies for available sites can provide flexibility to pursue development in the interim, mitigating potential halts in planning.

It’s Good To Talk

Effective communication and collaboration among stakeholders, including developers and landowners, is key. Addressing nutrient neutrality challenges requires collective knowledge and efforts to navigate inconsistencies and mitigate their impact on the industry.

What Is Needed?

The absence of a clear, consistent planning framework has stalled planning and development in many local authorities across the UK. It’s imperative to shift the focus from political decisions to planners’ insights, emphasising practical solutions for housing delivery challenges.

As the government purports to respond to the NPPF consultation by year-end, there is a glimmer of hope for clarity on certain issues. However, regarding the prolonged four-year moratorium related to nutrient neutrality, beyond the stated wastewater treatment improvements by 2030, a tangible, implementable resolution that satisfies all stakeholders and facilitates home construction remains elusive. Perhaps considering interim measures like a “roof tax” to fund Natural England’s mitigation program could serve as a bridging solution until 2030, promoting sustainable development amidst the regulatory challenges.